Whether Members of Parliament and of State Legislatures are Public Servants

Two questions have been litigated and they must be kept apart. The first is whether a legislator is a public servant within Section 2(c) of the Prevention of Corruption Act, which was answered in the affirmative in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626. The second is whether a legislator who takes a bribe to vote or speak in the House is immune from prosecution under Article 105(2) or Article 194(2) of the Constitution. The majority in that case held that he was, a conclusion that stood for twenty-six years and was overruled by a Bench of seven judges in Sita Soren v. Union of India, 2024 INSC 161, (2024) 5 SCC 629, decided on 4 March 2024.

1. Public Servant

Section 2(c) includes any person who holds an office by virtue of which he is authorised or required to perform any public duty, and Section 2(b) defines public duty as a duty in the discharge of which the State, the public or the community at large has an interest. A member of Parliament or of a State legislature holds such an office and performs such a duty, and the Explanation to Section 2(c), which makes designation and the validity of appointment immaterial, removes the technical arguments. The proposition has not since been doubted: legislators are public servants for the purposes of the Act, as are ministers, whose position was never in question.

2. The Sanction Difficulty

Section 19 requires the previous sanction of the authority competent to remove the public servant from office. A member of a legislature is not removable by any such authority; he holds his seat by election and vacates it in the circumstances the Constitution provides. The Court in Narasimha Rao held that, there being no competent authority, the requirement of sanction could not operate, and it indicated that until Parliament made provision the prosecuting agency should seek the permission of the Chairman of the Council of States or the Speaker of the House of the People, as the case may be. The point is worth remembering because the argument that a prosecution of a legislator fails for want of sanction is still made and is answered by this reasoning.

3. The Immunity Question

Article 105(2) provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and Article 194(2) makes identical provision for State legislatures. The question was whether a member who accepted a bribe and then voted as agreed was protected by those words.

📖 P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626

Held: By majority, members who had received bribes and had voted in the House in accordance with the bargain were immune under Article 105(2), on the reasoning that the prosecution was in respect of a vote given in Parliament and that the immunity is conferred in wide terms to protect the independence of the legislature. A member who had received the money but had not voted was held not to be protected, because in his case the prosecution could not be said to relate to a vote given. The Court also held that legislators are public servants within the Act, and dealt with the sanction difficulty as described above.

The criticism: The result was that the member who had performed the corrupt bargain went free while the one who had taken the money and not performed it could be prosecuted, which inverted the moral order of the case and was described as an anomaly from the day it was decided.

📖 Sita Soren v. Union of India, 2024 INSC 161, (2024) 5 SCC 629, decided on 4 March 2024

Held: A Bench of seven judges unanimously overruled the majority in Narasimha Rao. The immunity conferred by Articles 105(2) and 194(2) attaches to what is said or to a vote given in the House, and is available only where the claim is connected with and arises out of the collective functioning of the House or the essential duties of a member. Bribery is not essential to the casting of a vote or to the decision how to vote, so it falls outside the protection. The offence of accepting a bribe is complete on the acceptance of the illegal gratification, and does not depend on whether the legislator subsequently votes or speaks as agreed. The Court held that corruption and bribery by members of the legislature erode the foundation of Indian parliamentary democracy and that an interpretation conferring immunity would be contrary to the purpose of the privilege, which exists to secure freedom of speech and debate rather than to protect criminal conduct. The reasoning was applied equally to a vote cast in an election to the Council of States.

Significance: The present law. A legislator who accepts an undue advantage in connection with a vote or a speech is liable under the Act, whether or not the vote is cast as agreed.

4. The Position Now

Legislators are public servants within Section 2(c) and are subject to the offences in the Act.
No immunity for bribery. Articles 105(2) and 194(2) do not protect a member against prosecution for accepting an undue advantage, and the offence is complete on acceptance.
The vote is irrelevant to liability. Whether the member voted as agreed, voted the other way, or did not vote at all, the offence under Section 7 is made out on demand and acceptance connected with improper performance of a public duty.
Sanction. The difficulty identified in Narasimha Rao persists, there being no authority competent to remove a member; prosecutions proceed on the reasoning in that case, and the position under the Lokpal legislation should be checked where that machinery is engaged.
Privilege survives for its proper purpose. The immunity continues to protect what a member actually says or votes in the House from being questioned in court; what it does not cover is a criminal transaction entered into outside it.

⚠ Why the overruling rests on the purpose of the privilege

Parliamentary privilege exists so that a member may speak and vote without fear of prosecution for the content of what he says or how he votes. That purpose is served by protecting the speech and the vote themselves. It is not served by protecting the acceptance of money, which is a transaction complete before the House sits and which corrupts rather than secures the independence the privilege is meant to guarantee. The reasoning is a useful illustration of a general technique: where an immunity is conferred for a stated purpose, its scope is fixed by that purpose rather than by the widest meaning its words can bear.

5. Related Topics and Provisions

Topic or provision	Connection
The Prevention of Corruption Act, 1988: Introduction, Object and Scope	The definition of public servant
Bribery: Meaning and Essential Elements	Why the offence is complete on acceptance
Sanction for Prosecution: Section 19	The difficulty where no removing authority exists
Sections 2(b), 2(c), 7 and 19, Prevention of Corruption Act, 1988	The provisions applied
Articles 105(2) and 194(2), Constitution of India	The immunity claimed and its limits