Contextualising The Sita Soren Judgement - Understanding The Legislator’s Plight
Author: LawSphereX
Category: General Law
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CONTEXTUALISING THE SITA SOREN JUDGEMENT:
UNDERSTANDING THE LEGISLATOR’S PLIGHT
Praj Boiragi, O.P. Jindal Global University
ABSTRACT
This article critically examines the Supreme Court’s 2024 decision in Sita Soren vs Union of India, which redefined the scope of parliamentary privileges under Article 105(2) and 194(2) of the Indian Constitution. By overruling the majority judgement in P. V. Narasimha Rao vs State, the court held that bribery is neither essential to the functioning nor a part of the voting process protected under the mentioned statutes. The judgement, while laudable in its attempt to reinforce accountability and curbing legislative corruption, weakens institutional safeguards meant to protect the independence of the legislature. This article examines how the court in its zealousness to eradicate bribery produced a narrow interpretation of “in respect of” and used the “necessity test” out of context which leads to legislators being vulnerable to executive overreach via investigative agencies.
Finally, it shows the fundamental need to strike a balance between probity and privilege and suggests an alternative functioning which preserves democratic balance by providing legislative autonomy while holding them accountable.
Introduction
The Supreme Court in its 2024 verdict of Sita Soren vs Union of India marked a pivotal shift in the parliamentary privileges in India provided in Article 105 subsequently in Article 194 of the Constitution, for the state legislators. This judgement overruled the longstanding controversial majority opinion in P. V. Narasimha Rao vs State which provided immunity to legislators who took a bribe to vote against a proceeding. While the judgement in Sita Soren is lauded for declaring bribery as not falling under the parliamentary immunity, its reasoning opens up legislators to new issues of judicial and executive overreach and weakens established constitutional safeguards. This article looks at how this judgement weakens the functioning of legislators thereby putting one of the fundamental pillars of democracy at risk.
Furthermore this article will substantiate on how this interpretation of Article 105(2) and Article 194(2) deviates from the framers’ original intent to insulate the legislature from external pressures, particularly judicial interference. Finally this article will provide an alternative pathway through the establishment of an Ethics Committee and codification of the due process of this committee thereby letting the Parliament deal with its members alleged wrongdoings. The Legacy of P. V. Narasimha Rao The debate over parliamentary immunity in bribery cases was fundamentally shaped by P. V. Narasimha Rao vs State. In this landmark case, the majority held that alleged bribe-takers who cast their votes in accordance to the bribe in Parliament enjoyed immunity from prosecution under Article 105(2).
This controversial interpretation was predicated on a broad reading of the phrase "in respect of" in which the majority opinion held that it meant anything related to the object of voting or speech in parliament. Thereby arguing that the alleged conspiracy and acceptance of the bribe had a direct "nexus" with the vote and therefore was protected under the immunity granted by the article. The objective, according to this view, was to enable MPs to speak and vote fearlessly, free from the threat of being held accountable in a court of law.
However, this decision created a "paradoxical outcome1" it protected MPs who took a bribe and fulfilled their promise by voting, but denied immunity to those who accepted a bribe but did not vote or voted contrary to the agreement, as the lack of the promised act for the bribe erodes the connection of the bribe to the protected immunity of voting under Article 105(2).
1 Sita Soren v. Union of India, (2024) 3 SCC 786.
The minority opinion in P. V. Narasimha Rao, authored by Justice S. C. Agarwal, strongly dissented, arguing that the offense of bribery is complete upon acceptance of the money, irrespective of the performance of the illegal promise. For the minority, such a criminal liability arose "independently" of the speech or vote and should not be protected by parliamentary immunity. The Sita Soren Judgment: A Shift to a Narrow View The Supreme Court in Sita Soren unanimously overruled the majority opinion in P. V. Narasimha Rao, correcting the anomaly and asserting that bribery is not protected by parliamentary privilege. The Court adopted a narrower "legal relation" standard for interpreting Article 105(2) and 194(2).
It held that the expression "in respect of" means "arising out of" or "bearing a clear relation to," rejecting an overbroad interpretation that would include any "remote connection" with the speech or vote. The majority in Sita Soren held that immunity is only available for act that succeeds as a consequence of the speech or vote given by an MP. The Court reasoned that the offense of bribery crystallizes upon the acceptance of the bribe and is independent of the actual performance of the act in Parliament. This standard requires the speech or vote to be the "direct legal reason" for the proceedings, a condition that bribery charges do not typically meet. The judgment aimed to reinforce probity in public life and ensure that the Constitution envisions an accountable democracy.
It also commendably remedied the "vote given" paradox, clarifying that immunity does not depend on whether the promised vote was actually cast or abstained from. Shielding Wrongdoing vs Safeguarding the Institution Before diving deeper into the consequences of this judgement it is necessary to first understand the provision of parliamentary privileges and its history; parliamentary privilege refers to the set of rights and immunities that protect the members of parliament from legal action for their actions during the course of their duties. This concept originates from England arising out of the conflict between the House of Commons and the Crown to gain independence of Parliament from the monarchy to maintain its institutional function. 2 Therefore the essence of parliamentary privilege lies in separation of powers. To ensure that the legislators face no fear
2 Anand Singh Prakash, 'Evolution of Parliamentary Immunity and Privileges' (2023) 27Law & World 52
in their decisions to uphold their duty from external threats. The Supreme Court however in it’s judgement, even after recognising the importance of securing the institutional foundation of democracy, violates its own ideals by narrowing the interpretation of “in respect of. ” By confining the protection under Article 105(2) only to acts arising directly from the vote or speech the court divorces the act from its broader political context. In doing so the court leaves unprotected the chain of conduct that led to the vote or speech even when the conduct might have been necessary for the legislative process.
This renders the legislature vulnerable to vindictive politics as it shifts power balance away from legislature to the executive; even if the court protects the right to vote and make speeches, it has given the executive a back door through investigative agencies to target legislators who may not comply or conform according to their wishes under the guise of investigating ‘pre speech or vote’ misconduct. Furthermore it is important to understand that legislative function don’t happen in a vacuum rather legislative decisions (vote/speech) occur as parts of broader political process which may involve lobbying, negotiating or engaging in deals.
Therefore if, in an attempt to uproot some evil which may exist in the pre-process the whole process is removed from the garb of protection; then the Court risks hollowing out the very privilege it seeks to uphold by reducing it to a paper shield protecting the end point of a process while allowing the process itself to be subjugated to external coercion. Furthermore this judgment increases the risk to legislative independence by making parliamentary privilege depend entirely on how criminal law is structured. Instead of giving priority to the inherent purpose of Article 105 and 194 (i. e. protecting the functioning of legislature) it focuses on the technical elements of the alleged crime i. e. bribery.
As soon as it decides that the offence is “complete” when a bribe is accepted, it rules that privilege no longer applies, even if the act is directly linked to voting or speaking in the House. This ignores the necessity test, which says privilege should be upheld when it is needed for legislators to do their jobs freely. By letting criminal law decide when privilege is allowed, the court forgets this functional inquiry of whether the judicial interference with this act would compromise legislative independence. Privilege is not meant to protect individual wrongdoing, but to protect the institution of legislature from external wrongdoing. 3 By focusing on criminal law’s internal logic the court shifts the constitutional perspective of privilege which is supposed to
3 Raja Ram Pal v Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184 (SC).
ascertain whether protecting a conduct is necessary to preserve future integrity of speech/vote to whether the conduct violates criminal law. A dive into the nuances The “necessity test” developed in various common law jurisdictions, upheld in various Indian case laws3 and acknowledged in this judgement; helps ensure that privilege is not a blanket immunity but rather a functional need for legislative independence. The foundational purpose of the necessity test was for those privileges to be protected which are necessary for the house to perform its functions. 3 This test was further developed in a double prong test to ask firstly that the privilege claimed must be connected to the collective functioning of the house and second the immunity sought must have a functional relationship to the discharge of duties as an individual legislators.
1 The Supreme Court blurred the doctrinal boundary between Articles 105(2) and 105(3) by referencing the “necessity test” to a context where it does not belong. 4 Article 105(2) provides a self-executing individual immunity stating “no member shall be liable to any proceeding in any court in respect of anything said or any vote given” which indicates a clear, categorical provision independent of any justification of necessity. In contrast, Article 105(3) mentions that the privileges of each House of Parliament and its members shall be “be defined by Parliament by Law and until so defined “shall be those of that of the House and of its members and committees immediately before coming into the force of Section 15 of the Constitution (Forty fourth Amendment) Act, 1978” which are privileges enjoyed by the House of Commons at the commencement of the Constitution.
The language of the doctrine is such that it allows the privileges arising out of this provision to be explicitly evaluated for their constitutionality thereby causing the necessity test to arise. By importing this test into the interpretation of 105(2), the Court effectively transformed a textual guarantee into a conditional one, subject to judicial evaluation of functional relevance. This move undermines the qualitative distinction between individual immunities and institutional privileges which then amounts to rewriting the constitutional text by reading into it a limitation that simply does not exist. The judgment 4 Abhinav Kumar, ‘Conflate and Subvert: (Un)Reading Legislative Immunity in Sita Soren v Union of India’ (2025) 18 NUJS L Rev 1.
thereby risks turning what was once absolute protection into a case-by-case adjudication, weakening the certainty that Article 105(2) was designed to provide. While the Sita Soren judgment attempts to modernize Indian parliamentary privilege jurisprudence by invoking the “legal relation” test and referencing foreign case law, it overlooks India’s distinct political environment and historical misuse of criminal law against legislators. These foreign precedents emerged from stable liberal democracies with strong institutional guardrails, where prosecutorial independence from the executive is more robust and abuse of state investigative machinery is comparatively rare.
For example the Public Prosecution Service of Canada established under the Director of Public Prosecution Act 2006, is a national independent prosecuting body which prosecutes federal offences functions entirely independently from the executive. It has its prosecutorial guidelines codified in Federal Prosecution Service Deskbook an official publication of the PPSC which prevents misconduct and the Attorney General may issue guideline, however this has to be done in writing and issued in the Canadian Gazette5 marking a transparent process. In contrast, India’s investigative agencies like the CBI and the Enforcement Directorate have been repeatedly criticised for acting as political instruments of the ruling party. Even Supreme Court justices have described the CBI as a “caged parrot,” warning of its compromised independence and susceptibility to executive control6.
Recent commentary underscores how opposition leaders, including sitting Chief Ministers, face coordinated criminal investigations before elections, raising credible concerns of "vindictive accusations"3 rather than impartial prosecution7. In this context, the Court's failure to contextualize privilege within the operational realities of India's biased investigative bodies risks turning what should be a constitutional safeguard into a vulnerability. The reliance on progressive foreign doctrine without adapting it to India’s political ecosystem represents not doctrinal clarity but democratic myopia. Alternative Pathway While the Sita Soren judgement rightly rejects the misuse of legislative privilege as a shield for bribery, it ends up narrowing the constitutional protection under Article 105(2) and Article 194(2).
In doing so, it leaves opposition members vulnerable to the executive overreach in a
5 Director of Public Prosecutions Act 2006, §§ 10(1)–(2).
6 Ajay K Mehra, ‘The Uses (and Abuses) of Investigative Agencies’ The Wire (12 November 2022).
7 P Raman, ‘Given the Devious Track Record of the ED and CBI, the Opposition Has to Be Ready’ The Wire (5 March 2024). country where investigative agencies have a history of political misuse. In the Supreme Court’s vision of protecting legislator’s from ‘fear and favour’,1 their overcorrection in uprooting bribery has shifted the focus from manipulation of favour to completely overlooking their protection from fear of prosecution. 3 This creates an irony in this judgement where on one end it’s being lauded for increasing probity in public life and on the other its interpretation undermines the integrity, by exposing honest legislators to politically motivated prosecutions.
A suitable alternative for solving the dilemma between letting legislator’s actions go completely unregulated or risk the independence of the legislature, could be establishing an Ethics Committee within the respective Parliament or Legislative Assembly. Therefore all allegations would first go the House Ethics Committee which would have the power to summon, examine and give required sanctions. This power draws its legitimacy from previous judgement like Raja Ram Pal v Speaker wherein it was held that the House has the power to investigate and punish its member for violations of privilege. Furthermore the Rajya Sabha Ethics Committee and Rules of Procedures and Conduct of Business in Lok Sabha Rule 316A providing power to the House to examine cases of misconduct, already give a strong foundational framework to build upon.
Finally a Parliamentary Privilege and Ethics Act can be used to codify these procedures to define the jurisdiction of the Ethics Committee, providing a transparent investigative process. This will ensure a just and equitable outcome for all members of the house. This would provide a safeguard from judicial overreach and maintain the sovereignty of the Parliament and democracy in India as a whole.