We elect representatives to translate our views accurately into legislative action. If a legislature is a mirror that allows us to see what we want as a people, how can we ensure that the image is clear? We wouldn’t want a dirty mirror, of course, but then wouldn’t want to scrub it till it is scratched either. How we clean the mirror matters.
This is one way to think about a recent decision by a seven-judge bench of the Supreme Court finding that MPs and MLAs can be prosecuted if they take bribes for what they say or how they vote in the legislature. While the outcome is a happy one, how the Court arrived at it is worth examining.
Privileges and Payments
To some, it may sound strange that such a large bench of the highest court had to decide on whether political corruption can be prosecuted. But there is a good reason for this: our Constitution provides legislators with certain “privileges” that allow them to do their work. A legislative body can, for example, decide by itself what procedures it will follow and how it will discipline its members for misconduct.
Similarly, individual legislators are protected from being questioned in court for what they say in the legislature. This has its roots in the origins of parliamentary democracy itself. The British House of Commons had to struggle for these privileges in the face of kings who would imprison and prosecute members and speakers for saying offensive or seditious things.
Free speech privileges allow a representative to criticise policies, raise questions, draw attention to facts, and engage in debate without fear of being harassed in court for things that could otherwise have landed them in trouble with the law. This is because of the extraordinary importance of each legislator’s ability to effectively control the government on behalf of the people.
Unprincipled governments will always be keen to silence outspoken critics and cast doubt on criticism voiced in the legislature. And there are few more effective ways of doing this than alleging that the criticism was motivated by bribery. What is more, unlike other charges that a legislator is protected from (like defamation, sedition, or disclosure of official secrets), bribery allegations can be made against almost any kind of speech.
But what if the legislator did in fact accept bribes? Back in 1998, a five-judge bench of the Supreme Court shielded potentially corrupt legislators by weighing in favour of their freedom of speech. This was despite the fact that the case was about alleged bribery that may well have saved the P.V. Narasimha Rao government from being toppled in an all-important trust vote. Cut to 2024, and a larger bench has now weighed in favour of clean politics instead.
The 'Favour' in 'Fear or Favour'
The Constitution says that legislators cannot be questioned in court “in respect of anything said or any vote given” by them. In 1998, the Supreme Court read this broadly to mean that if a legislator had accepted bribes and then voted in the legislature as they were paid to, they would be protected from prosecution. The bribery case would be directly “in respect of” their vote.
But then, curiously, they found that if the legislator accepted bribes but did not vote as agreed, they would be liable to prosecution because the link would be broken: the case would not actually be related to their vote anymore. In other words, fulfilling corrupt promises would be protected but failing to do so would not. Many, including a dissenting judge on the 1998 bench, found this paradox difficult to agree with.
The judgment this week recognised that this kind of absurdity should not be allowed to continue in the law. Instead, it found that a legislator would be liable for bribery regardless of whether they voted as they were bribed to, voted some other way, or abstained from voting. Only as much of the legislator’s actions would be protected as is “necessary” for them to speak freely as per their own conscience.
But this freedom is exactly what a legislator foregoes when they vote “not because of their belief or position on an issue but because of a bribe taken by the member.” They are not “free from fear or favour” when they are taking favours. A second factor was just as crucial: the crime of bribery is completed as soon as the bribe is accepted, and so it does not really depend on the actual performance of the corrupt bargain through a speech or vote. Thus, bribery is not protected because it is not linked with legislative duties.
Law as Misdirection
The Court has ironed out the paradox and taken a stand against political corruption. But a closer inspection reveals weaknesses in its reasoning that we should be careful about.
Applying its test of “necessity”, the Court says that “[A] member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast”. This is misdirection. Everyone would agree that legislative corruption is inherently contrary to democratic representation, and no one would say that bribery is necessary for legislative duties.
Rather, the question is whether freedom from prosecution for charges of bribery is necessary for carrying out legislative duties fearlessly. When the Court opens with “A member engaging in bribery commits a crime”, it has already lost the plot. The legislator has to be prosecuted and evidence considered before one can say that any crime was committed. Until then, the charges could well be a form of harassment.
Similarly, despite how often this point is repeated, it makes little difference that the crime of bribery is “completed” before the speech or vote of the bribed legislator. Illegalities can also be said to be “completed” before a legislator discloses official secrets or sensitive personal information in the legislature.
But what is important is whether it would substantially affect the free speech of our representatives if they are allowed to be prosecuted under official secrets or privacy laws for obtaining the information they disclosed. In its legalistic focus on the definition of bribery and its physical separateness from voting, the Court forgets that its own test of necessity is about the effect of prosecution on speech and not the form of an alleged crime.
What the Court Could Have Said
In its wholesale attack on the evil of bribery, the Court spares little thought for the possibility of harassment. The fact is that there is an irreducible conflict between the possibility of “fear” of prosecution and the possibility of “favour” from bribery. We rely on criminal prosecutions to tell us if bribery has damaged democracy, but these prosecutions are precisely what might result in such damage. The most effective opposition speeches can be tarred and the most strident legislators can be put on trial if a government wishes it to be so. In India, our criminal proceedings are slow and our legislative branch is defenceless against a powerful executive.
A more thoughtful bench would have been more circumspect about one of its other findings: that “[t]he potential of misuse … is neither enhanced nor diminished” when courts are allowed to prosecute legislators for bribery. This is what really mattered, but on what basis does the Court make this claim? It could have tried to show how bribery is, on balance, more dangerous than misuse of prosecution. Or it could have recognised that rampant misuse of bribery charges in future would warrant a change in its position. Instead, its misapplication of constitutional tests and reliance on legalistic definitions prevent us from seeing a dilemma for what it is.
(Lalit Panda has been working at the Vidhi Centre for Legal Policy since 2017. Prior to joining Vidhi, he worked briefly as a Consultant with the 21st Law Commission of India. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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