Karnataka High Court
Sri C T Ravi vs State By Bagewadi P S on 2 May, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 24.02.2025
Pronounced on : 02.05.2025
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.791 OF 2025
BETWEEN:
SRI C.T.RAVI
AGED ABOUT 58 YEARS,
S/O THIMMEGOWDA,
RESIDING AT CHIKKA
DEVADUTTA NILAYA,
V G PURA MAIN ROAD,
CHIKKAMAGALURU - 577 101.
... PETITIONER
(BY SRI PRABHULING K NAVADGI, SR.COUNSEL A/W
SRI SIDDHARTH SUMAN, ADVOCATE)
AND:
1. STATE BY BAGEWADI P.S.,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
VIDHANA VEEDHI
BENGALURU - 560 001.
2
2. SMT. LAXMI R. HEBBALKAR
AGED ABOUT 49 YEARS.
W/O RAVINDRA HEBBALKAR
RESIDING AT H NO 27/B,
BASAV KUNJA, KUVEMPU NAGAR,
HINDALGA BELAGAVI - 590 108.
3. STATE BY CRIMINAL INVESTIGATION DEPARTMENT
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
VIDHANA VEEDHI
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI B.A.BELLIAPPA, SPP A/W
SRI B.N.JAGADEESHA, ADDL.SPP FOR R1 AND R3;
SRI K.A.PHANEENDRA, SR.COUNSEL FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BHARATIYA NAGARIK SURAKSHA SANHITA, PRAYING TO QUASH
THE COMPLAINT AND FIR REGISTERED BY THE BAGEWADI P.S.,
AGAINST THE PETITIONER IN CR.NO.186/2024 DTD 19.12.2024,
FOR THE OFFENCES P/U/S 75 AND 79 OF THE BHARATIYA NYAYA
SANHITA, 2023, PENDING ON THE FILE OF THE HONBLE XLII ACJM,
(SPECIAL COURT FOR CASE AGAINST MLA AND MP) AT
BENGALURU, ANNEXURE A AND B.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.02.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, a Member of Legislative Council of the State of
Karnataka now stands before this Court seeking quashing of
registration of crime, in Crime No.186 of 2024, which alleges
offences penal under Sections 75 and 79 of the BNS 2023.
2. Shorn of unnecessary details, facts in brief, are as follows:-
The petitioner, a people's representative, is said to be in
public field for over 3 decades. He is presently a Member of Vidhana
Parishad/Legislative Council. The 2nd respondent is the complainant,
a woman, Member of the Legislative Assembly. The genesis of the
imbroglio lies, in the tumultuous events that unfolded on
19-12-2024, in the Vidhana Parishad. It is the allegation of the 2nd
respondent that on 19-12-2024 amidst disorderly adjournment of
Legislative Council, the petitioner is alleged to have made
utterances, that undermined the dignity of the Vidhana Parishad,
and those utterances had outraged the modesty of the complainant.
A complaint then comes to be registered on the same day before
4
the jurisdictional Police at Belagavi for offences punishable under
Sections 75 and 79 of the BharatiyaNyaya Sanhita ('BNS'). The
investigation is sought to be conducted. In the interregnum, it
appears, the Chairman of the Legislative Council who was seized of
the matter is said to have closed the issue by observing that
nothing of that kind has happened in the Council,on the score, that
it is only the domain of the Chairman to have enquired into
anything that happens inside the House, the Chairman has decided
the issue. It appears, the petitioner fails to cooperate with the
further investigation as he denies giving of his voice sample for the
purpose of investigation. It is at that juncture the petitioner knocks
at the doors of this Court in the subject petition, seeking reprieve
from the sword of criminal prosecution.
3. Heard Sri Prabhuling K. Navadgi, learned senior counsel
appearing for the petitioner, Sri B.A. Belliappa, learned State Public
Prosecutor appearing for respondents 1 and 3 and
Sri K.A.Phaneendra, learned senior counsel appearing for
respondent No.2.
5
SUBMISSIONS:
Petitioner:
4. The learned senior counsel Sri Prabhuling K Navadgi
would vehemently contend:
a. The Chairman of the Legislative Council, after hearing both
the parties i.e., the petitioner and the complainant, has
rendered his decision on 19-12-2024. The decision forms a
part of the privilege of the House. The decision is in favour of
the petitioner.
b. The protection given to a Member of the Legislature from any
proceeding in the Court of law in Article 194(2) of the
Constitution of India is not qualified, it is complete
protection.
c. Registration of a crime before the jurisdictional police, in
respect of words spoken by the petitioner inside the House is
completely barred having constitutional injunction under
Article 194(2) of the Constitution of India.
6
d. Article 194(2) of the Constitution of India protects a Member
of the Legislature from any proceeding, in any Court, in
respect of anything said by him in the Legislature.
e. It is not in dispute that the alleged act is a word spoken by
the petitioner while he was in the Legislature. Hence, the
FIR runs counter to the mandate of Article 194(2). He would
again reiterate that the protection under Article 194(2) for
anything said by a Member is absolute and unqualified.
f. He would above all contend that if crime is permitted to be
investigated into, it would become catastrophic, as it would
be rewriting the constitution and qualifying, the unqualified
privilege conferred upon the Legislator, by the Constitution.
4.1. Elaborating the aforesaid contentions, it is his submission
that there is vast difference between what is spoken inside the
House and acts done inside the House. If an overt act of physical
assault of any person inside the House or damaging the property of
the House would be done by any Legislator, he would not have
7
absolute immunity, as they are acts which come within the
ingredients of any crime that can be registered from the smallest to
the highest. But, it is his submission that a spoken word of any kind
in the House cannot become a subject matter of crime and judicial
review in such cases is extremely limited. He would seek to place
reliance upon the following judgments:
(1) SURENDRA MOHANTY v. NABAKRISHNA
CHOUDHURY1.
(2) DR. SURESH CHANDRA BANERJEE v. PUNIT
GOALA2
(3) TEJ KIRAN JAIN v. N.SANJIVA REDDY3
(4) A.K. SUBBIAH v. CHAIRMAN, KARNATAKA
LEGISLATIVE COUNCIL4.
(5) SITA SOREN v. UNION OF INDIA5.
to buttress his submissions.
State Public Prosecutor:
5. To the contrary, the learned State Public Prosecutor
representing the State Sri B.A.Belliappa, would vehemently refute
the submissions contending that parliamentary/legislators privilege,
1
1958 SCC OnLine Ori.17
2
1951 SCC OnLine Cal.235
3
(1970) 2 SCC 272
4
1978 SCC OnLine KAR 237
5
(2024) 5 SCC 629
8
that the learned senior counsel for the petitioner is speaking of,
does not extend to the immunity of the petitioner from criminal
prosecution. It is his contention that assertion of privilege by a
Legislator is governed by two-fold test. The privilege must have an
intrinsic relation to the collective functioning of the House. The
other test is that its necessity must bear functional relationship to
the discharge of the essential duties as a Legislator and would
submit that prosecution cannot be excluded from the jurisdiction of
criminal Court, merely because it may be treated by the House as a
contempt.
5.1. It is his submission that Section 509 of the IPC which is
Section 79 of the BNS, now alleged, would attract outraging the
modesty of a woman by action or by gesture or spoken word. What
is allegedly spoken, in the case at hand by the petitioner, is the
word "prostitute" against the complainant. It is his submission that
if this is not permitted to be investigated into, it would lead to a
situation where any Legislator inside the House can get away with
outraging the modesty of a woman, by spoken words. It is his
9
submission that the privilege granted is qualified and not absolute.
He would also seek to place reliance on the following judgments:
(1) STATE OF KERALA v. K.AJITH6
(2) A.KUNJAN NADAR v. STATE7, as also
(3) SITA SOREN supra.
Complainant:
6. Refuting the submissions of the leaned senior counsel for
the petitioner, the learned senior counsel Sri K.N. Phaneendra
representing the 2nd respondent/complainant would also toe the
lines of the learned State Public Prosecutor for the State and
contend that by no stretch of imagination it can be said that the
petitioner enjoys such privilege to get away with such verbal attack
which amounts to outraging the modesty of the complainant, a
woman. It is his submission that the judgment relied on by the
learned counsel for the petitioner in the case of SITA SOREN supra
itself resolves the dispute as to whether the Legislator would enjoy
absolute immunity or qualified immunity depending upon the facts
6
(2021) 17 SCC 318
7
1955 SCC OnLine Ker. 19
10
of the case. Both the learned counsel, in unison, would seek
dismissal of the petition and permitting further investigation into
the matter, as the petitioner has uttered these words or not is a
matter of evidence, for which cooperation of the petitioner for
investigation would become necessary.
7. The learned senior for the petitioner would join issue by
contending that the petitioner has the highest respect for women. It
is not today that he has been a Member of the House. He has been
in political life for close to three decades and has not incurred the
wrath of anybody, particularly on the allegation concerning a
woman. But, he would submit that the core issue would be,
whether the SIT or the CID can investigate into the happenings
inside the House. He would seek quashment of registration of
crime.
8. I have, with attentive gravity, rendered my anxious
consideration to the submissions made by the respective learned
senior counsel and have perused the material on record. In
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furtherance whereof the following issues emerge for my
consideration:
(i) Whether parliamentary/legislative privileges
under Articles 194(2) and 194(3) of the
Constitution generate absolute immunity of
happenings inside the House?
(ii) Whether the ingredients of offences are made out
in the case at hand?
Issue No.(i):
(i) Whether parliamentary/legislative privileges
under Articles 194(2) and 194(3) of the
Constitution generate absolute immunity of
happenings inside the House?
9. The afore-narrated facts, dates, link in the chain of events
are all a matter of record. The issue is, whether any Member of the
House, be it the Parliamentarian or the Legislator would enjoy
absolute immunity for everything that happens inside the House
either spoken words or acts done. It, therefore, becomes necessary
to notice certain articles of the Constitution of India. Article 194
reads as follows:
12
"194. Powers, privileges, etc., of the Houses of
Legislatures and of the members and committees
thereof.--(1) Subject to the provisions of this Constitution
and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of
speech in the Legislature of every State.
(2) No member of the Legislature of a State shall
be liable to any proceedings in any court in respect of
anything said or any vote given by him in the
Legislature or any committee thereof, and no person
shall be so liable in respect of the publication by or
under the authority of a House of such a Legislature of
any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and
immunities of a House of the Legislature of a State,
and of the members and the committees of a House of
such Legislature, shall be such as may from time to
time be defined by the Legislature by law, and, until so
defined, shall be those of that House and of its
members and committees immediately before the
coming into force of Section 26 of the Constitution
(Forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall
apply in relation to persons who by virtue of this Constitution
have the right to speak in, and otherwise to take part in the
proceedings of, a House of the Legislature of a State or any
committee thereof as they apply in relation to members of
that Legislature."
(Emphasis supplied)
Article 194 deals with powers and privileges of the House of
Legislature and of Members and Committees thereof. Sub-Article
(2) of Article 194 mandates that no Member of the Legislature of
the State shall be liable to any proceedings in any Court in respect
13
of anything said or any vote given in the Legislature and no person
shall be liable in respect of the publication under the authority of
the House. Sub-Article (3) speaks of privileges. It starts with the
words 'in other respects' the powers, privileges and immunities of
the House of Legislature of a State shall be such as may from time
to time defined by the Legislature by law or until so defined shall be
those obtaining before the coming into force of the 26th Amendment
to the Constitution. The fulcrum inter alia, of the lis revolves round
the privileges of the Members of the House as obtaining under
Article 194 of the Constitution.
10. Article 194 of the Constitution has fallen for interpretation
before the Apex Court and other Courts of the country. Therefore, it
becomes germane to notice the judgments relied on by the learned
senior counsel for the petitioner, which have been relied on to
buttress the submissions, that anything spoken in the House cannot
become the subject matter of proceedings before any Court of law,
much less, an investigation at the hands of any jurisdictional Police.
14
11. The High Court of Orissa in the case of SURENDRA
MOHANTY supra has held as follows:
".... .... ....
54. Hence, the alternative construction which while giving
full effect to the wide words of Article 194 ensures the
harmonious working of the High Court and the Legislature and
also effectuates the two important objectives of the framers of
the Constitution, namely the independence of the Judiciary and
the exclusive jurisdiction of the Legislature over its internal
proceedings, should be preferred.
62. Whatever that may be, the language of clause
(2) of Article 194 is quite clear and unambiguous, and is
to the effect that no law Court can take action against a
member of the Legislature for any speech made by him
there. That immunity appears to be absolute.
84. In cases where the question of privilege was raised
directly, it was held that Courts must disclaim jurisdiction.
Where, however, the matter arose incidentally it was the right
of the Court to examine privilege. It is well-settled law now that
it is the exclusive jurisdiction of either House over its internal
proceedings. In this, connection I would refer to the famous
case of Stockdale v. Hansard, (1839) 9 Ad and El 1 at pp. 193,
243 : 112 E.R. 1112 (Z5) as a result of which the maxim that
"Whatever matter arises concerning either House of Parliament
ought to be examined, discussed and adjudged in that House to
which it relates and not elsewhere" -- became practically
restricted to matters solely concerning the internal proceedings
of either House. The comprehensive review of Parliamentary
privilege which was forced upon the House of Commons and the
Courts in two famous cases of the early 19th
century, Burdett v. Abbot, (1810) 14 East 1 at pp. 88-89 : 104
ER 501 (Z6) and (1837) 9 Ad El 1 at pp. 193, 243 : 112 ER
1112 (Z5) made it clear that some of the claims to jurisdiction
made in the name of privilege by the House of Commons were
untenable in a Court of law.
15
89. There can be no doubt that this was directly a matter
of internal management of the House. The Assembly had a
right to decide it and the speaker had permitted Sri
Chaudhuri to speak. Sri Chaudhuri is hereby protected by
the decision of the Speaker. It is said that Sri Chaudhuri
had exceeded the limits and made breach of privilege. It
is not a matter in which this Court can examine or
investigate."
93. But our constitution, by adopting the privileges of the
House of Commons in toto, confers this power upon each House
of Union Parliament (Article 105(3)) as well as of the State
Legislatures (Article 194(3)). In short, Legislature has exclusive
jurisdiction to commit for contempt as is possessed by every
Court and the Courts cannot enquire into the grounds for
commitment for contempt by the Legislature."
(Emphasis supplied)
The High Court of Orissa holds that clause (2) of Article 194 is clear
and unambiguous and it is to the effect that no law Court can take
action against a Member of the Legislature for any speech made by
him there. The Court observes that the issue of what is spoken
inside the House is not a matter which the High Court can examine
or investigate.
12. In the case of DR. SURESH CHANDRA BANERJEE
supra, the High Court of Calcutta has held as follows:
".... .... ....
16
8. Clauses (1) and (2) of Art. 194 protect absolutely
and completely a member in respect of any speech made
by him in the Legislative Assembly or in any committee of
the Legislature. His words spoken within the four walls of
the Assembly are clearly absolutely privileged and no
proceeding, either civil or criminal, may be taken in
respect of them. It is therefore clear that Dr. Suresh Chandra
Banerji who made the speech in the Assembly containing the
alleged defamatory matter cannot be prosecuted for uttering the
words complained of in the Assembly. It is to be observed
however that in the complaint it is not suggested that he
is liable in respect of the words spoken in the Assembly.
What is suggested in the complaint is that he is liable in
respect of the publication made at his instigation in the
Loka Sevak on the following day."
(Emphasis supplied)
The High Court of Calcutta holds that clauses (1) and (2) of Article
194 protect absolutely and completely a Member in respect of any
speech made by him in the Legislative Assembly or in any
Committee of the Legislature. Member's words spoken within the
four walls of the Assembly are clearly absolutely privileged and no
proceeding either civil or criminal, may be taken in respect of that
even against those Members. The afore-quoted two views of the
High Courts of Orissa and Calcutta were in the 1950s.
17
13. A Constitution Bench of the Apex Court, in the case of
TEJ KIRAN JAIN supra, while considering the speech made at the
Parliament and immunity thereof under Article 105(2) of the
Constitution of India, holds as follows:
".... .... ....
7. Mr Lekhi in arguing this appeal drew our attention to
an observation of this Court in Special Reference No. 1 of
1964 [(1965) 1 SCR 413 at 455] , where this Court dealing
with the provisions of Article 212 of the Constitution
pointed out that the immunity under that Article was
against an alleged irregularity of procedure but not
against an illegality, and contended that the same
principle should be applied here to determine whether
what was said was outside the discussion on a Calling
Attention Motion. According to him the immunity granted
by the second clause of the one hundred and fifth article
was to what was relevant to the business of Parliament
and not to something which was utterly irrelevant.
8. In our judgment it is not possible to read the
provisions of the article in the way suggested. The article
means what it says in language which could not be
plainer. The article confers immunity inter alia in respect
of "anything said ... in Parliament". The word "anything"
is of the widest import and is equivalent to "everything".
The only limitation arises from the words "in Parliament"
which means during the sitting of Parliament and in the
course of the business of Parliament. We are concerned
only with speeches in Lok Sabha. Once it was proved that
Parliament was sitting and its business was being
transacted, anything said during the course of that
business was immune from proceedings in any Court this
immunity is not only complete but is as it should be. It is
of the essence of parliamentary system of Government that
people's representatives should be free to express themselves
without fear of legal consequences. What they say is only
18
subject to the discipline of the rules of Parliament, the good
sense of the members and the control of proceedings by the
Speaker. The Courts have no say in the matter and should really
have none."
(Emphasis supplied)
The Constitution Bench interpreting the word "anything said .... in
the Parliament, holds that it is of the widest import and 'anything' is
equal to 'everything'. Therefore, anything and everything said in
the Parliament had complete immunity. The Apex Court only said
that good sense should prevail the Members and the proceedings
should be appropriately controlled by the Speaker.
14. Heavy reliance is placed upon the judgment rendered by
a learned single Judge of this Court in the case of A.K.SUBBIAH
supra, wherein it is held as follows:
".... .... ....
16. It is in the above terms, the Supreme Court
while holding that in certain circumstances it was open to
the High Court to take action in a matter which came
within the latter part of Art. 194(3) of the Constitution as
it stood then, emphasised that Art. 194(2) of the
Constitution stood entirely on a different footing and the
immunity guaranteed thereunder was inviolable.
... ... ...
18. This is not a case where any individual's
fundamental right is involved. No prayer based on any
ordinary civil or criminal law is made in this case. This is
19
not a case where any objectionable words had been used in the
course of the speech of a member made outside the agenda of
the House or on a subject which had been disallowed by the
Chairman. The specific case is that some words which
contravened Art. 211 of the Constitution had been used
by the Member and the Chairman had not expunged even
though he was bound to do so. In substance what is
prayed for is that this Court should in exercise of its
power under Art. 226 of the Constitution investigate into
the correctness of the action or ruling of the Chairman of
the House and if it is found that any portion of the speech
made by the member contravenes Art. 211 of the
Constitution, then this Court should direct that such part
should be expunged from the proceedings of the House or
declare them as non-existent. In other words, the
petitioners request the Court to exercise supervisory
jurisdiction over the proceedings of the house even
though it may be to the limited extent of enforcing
obedience to Art. 211 of the Constitution. If the prayers
made by the petitioners have to be granted, the following steps
have to be taken by this Court:--
(1) Issue of notices to the Chairman of the House and the
member concerned;
(2) Calling for the relevant records relating to the
proceedings of the House;
(3) Investigation into the truth or otherwise of the words
used in the speech of the member concerned;
(4) Determination of the issue whether any part of the
speech contravened Art. 211 of the Constitution;
(5) Decision on the question relating to the correctness of
the decision of the Chairman or on the question
relating to his omission to take action; and
(6) If it is found that the decision of the Chairman was
erroneous or his omission was unconstitutional, then
to issue direction to him or to the House to expunge
the objectionable part from the proceedings of the
House or to make a declaration that they are
unconstitutional.
20
19. It was contended that the expression "proceedings in
any court" appearing in Art. 194(2) of the Constitution related
only to criminal or civil proceedings and not to proceedings
under Art. 226 of the Constitution which has conferred power on
the High Court to enforce the provisions of the Constitution in
appropriate cases. It is difficult to place such a narrow
construction on the expression "proceedings" appearing in Art.
194(2) of the Constitution. That expression, having regard to
the object with which Art. 194 is enacted, should be given the
widest meaning possible and proceedings under Art. 226 of the
Constitution also fall within the scope of that expression. No
court whether it is the Supreme Court or a High Court or a Civil
or a criminal court can initiate proceedings against a member in
respect of anything said on the floor of the House.
... ... ...
23. It is unfortunate that an occasion has arisen in
this Court to hear a case of this nature. But at the same
time the Court cannot take any action which interferes
with the immunity which a member has been granted
under Art. 194(2) of the Constitution merely because
what he may have said is in violation of Art. 211 of the
Constitution. Was it not Voltaire who said like this: "I do
not agree with you; but I will fight for upholding your
right to disagree with me till the end of my life". In the
same spirit, this Court which has a special obligation to
uphold the Constitution and the laws, upholds Art. 194(2)
of the Constitution and the immunity guaranteed to the
members of the Legislature thereunder, leaving it to
them to uphold Art. 211 of the Constitution in their
deliberations. I am of the view that no action is called for
in this case. The petition is dismissed."
(Emphasis supplied)
The learned single Judge in the afore-quoted judgment observes
that it is unfortunate that an occasion has arisen in this Court to
hear a case concerning interpretation of Article 194(2) of the
Constitution of India. It is held that, in certain circumstances it was
21
open to the High Court to take action in a matter, which came
within the latter part of Article 194(3) and emphasised that Article
194(2) of the Constitution of India stood entirely on a different
footing and the immunity guaranteed thereunder is inviolable. The
case before the Court was utterances/deliberations of Members of
the House against the judiciary, on which action was sought to be
taken. The Court refuses that it would run counter to the immunity
granted to the Members of the Legislature under Article 194(2). It
was, therefore, said that no action could be taken in the case.
Judgments relied on by the State and the Complainant:
15. The learned State Public Prosecutor has relied on the
judgment of the Apex Court in the case of K. AJITH supra. It is
the submission of the learned State Public Prosecutor that the said
judgment is his sheet anchor. The Apex Court in the case of
K.AJITH, has held as follows:
".... .... ....
3. On 13-3-2015, the then Finance Minister was
presenting the Budget for Financial Year 2015-2016 in the
Kerala Legislative Assembly. The respondent-accused [ The
term "respondent-accused" refers to Respondents 1 to 6 in
SLP (Crl.) No. 4009 of 2021 and the petitioners in SLP (Crl.)
22
No. 4481 of 2021.] , who at the time were Members of the
Legislative Assembly ("MLA") belonging to the party in
opposition, disrupted the presentation of the Budget, climbed
over to the Speaker's dais and damaged furniture and
articles including the Speaker's chair, computer, mike,
emergency lamp and electronic panel, causing a loss of Rs
2,20,093. The incident was reported to the Museum
Police Station by the Legislative Secretary. Crime No.
236 of 2015 was registered under Sections 447 and
427 read with Section 34 of the Penal Code, 1860
("IPC") and Section 3(1) of the Prevention of Damage
to Public Property Act, 1984. On the completion of the
investigation, the final report under Section 173CrPC was
submitted and cognizance was taken by the Additional CJM,
Ernakulam of the said offences [ Cri MP 2577 of 2019.] .
... ... ...
C.2. Immunities and Privileges of MLAs
26. Articles 105 and 194 of the Constitution provide in
similar terms for the privileges and immunities of Members
of Parliament ("MPs") and MLAs respectively. Article 194 of
the Constitution is extracted below:
"194. Powers, privileges, etc. of the Houses of
Legislatures and of the members and committees
thereof.--(1) Subject to the provisions of this Constitution
and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of
speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable
to any proceedings in any court in respect of anything said or
any vote given by him in the Legislature or any committee
thereof, and no person shall be so liable in respect of the
publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and
immunities of a House of the legislature of a State, and of
the members and the committees of a House of such
Legislature, shall be such as may from time to time be
defined by the Legislature by law, and, until so defined, shall
be those of that House and of its members and committees
23
immediately before the coming into force of Section 26 of the
Constitution(Forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply
in relation to persons who by virtue of this Constitution have
the right to speak in, and otherwise to take part in the
proceedings of a House of the legislature of a State or any
committee thereof as they apply in relation to members of
that Legislature."
(emphasis supplied)
... ... ...
28. At the time of the adoption of the Constitution,
clause (3) of Article 194 provided that the privileges,
immunities and powers of a House of the legislature of
a State (and of its members and committees) shall be
such as may from time to time be defined by the
legislature by law, and until so defined, shall be those
of the House of Commons of Parliament of the United
Kingdom at the commencement of the Constitution. By
Section 34 of the Forty-second Amendment to the
Constitution, clause (3) of Article 194 was amended
and embodied a transitory provision under which until
the powers, privileges and immunities of a House of
the legislature of a State (and of the members and its
committees) were defined by a law made by the
legislature, they shall be those of the British House of
Commons and the privileges of each House "shall be
such as may from time to time be evolved by such
House". However, Section 34 was not brought into
force by issuing a notification under Section 1(2) of
the Constitution(Forty-second Amendment) Act, 1976.
Eventually, clause (3) in its present form was
substituted by Section 26 of the Constitution(Forty-
fourth Amendment) Act, 1978 with effect from 20-6-
1979 [ Section 26 of the Constitution(Forty-fourth
Amendment) Act, 1978, w.e.f. 20-6-1979, read as
follows:"26. Amendment of Article 194.--In Article 194
of the Constitution, in clause (3), for the words 'shall
be those of the House of Commons of Parliament of
the United Kingdom, and of its members and
committees, at the commencement of this
Constitution', the words, figures and brackets 'shall be
those of that House and of its members and
24
committees immediately before the coming into force
of Section 26 of the Constitution(Forty-fourth
Amendment) Act, 1978' shall
be substituted."(emphasis in original)] . The present
position of clause (3) is that:
28.1. The ultimate source of the powers, privileges and
immunities of a House of a State Legislature and of the
members and committees would be determined by way of a
legislation.
This extract is taken from State of Kerala v. K. Ajith,
(2021) 17 SCC 318 : 2021 SCC OnLine SC 510 at page
352
28.2. Until such legislation is enacted, the position as it
stood immediately before the coming into force of Section 26
of the Constitution(Forty-fourth Amendment) Act, 1978
would govern.
This extract is taken from State of Kerala v. K. Ajith,
(2021) 17 SCC 318 : 2021 SCC OnLine SC 510 at page
352
28.3. The amendment to the Constitution introducing the
concept of evolution of privileges and immunities by the
House of the legislature never came into force and now
stands deleted.
C.2.1. Position in the United Kingdom
29. Now, in this backdrop, it would be necessary to
assess at the outset the nature of the privileges and
immunities referable to the House of Commons in the United
Kingdom. Erskine May's Parliamentary Practice [ Erskine
May, Parliamentary Practice, Chapter 17, p. 281 (24th Edn.,
Lexis Nexis, 2011).] provides a comprehensive statement of
law, indicating the phases through which parliamentary
privilege evolved in the UK.
This extract is taken from State of Kerala v. K. Ajith,
(2021) 17 SCC 318 : 2021 SCC OnLine SC 510 at page
353
25
29.1.First phase : The first phase of the conflict
between Parliament and the courts was "about the
relationship between the lex parliament and the common law
of England". In this view, the House of Parliament postulated
that "they alone were the Judges of the extent and
application of their own privileges, not examinable by any
court or subject to any appeal". The first phase of the conflict
has been described thus:
"The earlier views of the proper spheres of court and
Commons were much influenced by political events and the
constitutional changes to which they gave rise. Coke in the
early seventeenth century regarded the law of Parliament as
a particular law, distinct from the common law. For that
reason 'Judges ought not to give any opinion of a matter of
Parliament, because it is not to be decided by the common
laws but secundumlegem et consuetudinem parliament [ Sir
Edward Coke, Fourth Part of the Institutes of the Laws of
England 14 (1797).] '."
However, even during this period, "elements of the opposing
view that--decision of Parliament on matters of privilege can
be called in question in other courts, that the lex
parliament is part of the common law and known to the
courts, and that resolutions at either House declaratory of
privilege will not bind the courts--are found at almost as
early a date, and they gained impetus as time went by."
29.2.Second phase : Erskine May tells us that in the
second phase of the nineteenth century:
"... some of the earlier claims to jurisdiction made in the
name of privilege by the House of Commons were untenable
in a court of law : that the law of Parliament was part of the
general law, that its principles were not beyond the judicial
knowledge of the Judges, and that the duty of the common
law to define its limits could no longer be disputed. At the
same time, it was established that there was a sphere in
which the jurisdiction of the House of Commons was absolute
and exclusive."
26
29.3.Third phase : In the early and mid-twentieth
century:
"In general, the Judges have taken the view that when a
matter is a proceeding of the House, beginning and
terminating within its own walls, it is obviously outside the
jurisdiction of the courts, unless criminal acts are involved.
Equally clearly, if a proceeding of the House results in action
affecting the rights of persons exercisable outside the House,
the person who published the proceedings or the servant
who executed the order (for example) will be within the
jurisdiction of the courts, who may inquire whether the act
complained of is duly covered by the order, and whether the
privilege claimed by the House does, as pleaded, justify the
act of the person who executed the order."
(emphasis supplied)
In the later twentieth century, the House of Commons came
to a significant conclusion about the limits of the phrase and
the protection afforded to proceedings in Parliament.
30. The privileges of the British House of Commons at the
commencement of the Constitution as embodied in clause
(3) of Article 194 as it then stood has significant
consequences. First, the nature and extent of the privileges
enjoyed by the members was to be decided by the courts
and not by the legislature, following the English principle that
the courts have the power to determine whether the House
possessed a particular privilege. Second, the courts had the
power to determine whether any of the privileges of the
British House of Commons that existed at the date of the
commencement of the Constitution, had become inconsistent
with the provisions of the Constitution.
31. As mentioned above, since Parliament is yet to enact
a law on the subject of parliamentary privileges, according to
Article 194(3) of the Constitution, the MLAs shall possess
privileges that the members of the House of Commons
possessed at the time of enactment of the Constitution. It is
thus imperative that we refer to judgments of the United
Kingdom on whether criminal offences committed within the
27
precincts of the House of Commons are covered under
"parliamentary privileges", receiving immunity from
prosecution.
32. In R. v. Elliot [R. v. Elliot, (1629) 3 St Tr 292-
336. Ed. : See also 1629 Cro Car 181 : 79 ER 759 (KB)] , Sir
John Eliot and his fellows in the House of Commons
protested against the Armenian movement in the English
Church in the House. During the course of the protest, three
members of the House used force to hold the Speaker down,
preventing him from adjourning the House. They were
charged for seditious speech and assault. The court of King's
Bench rejected [R. v. Elliot, (1629) 3 St Tr 292-336. Ed. :
See also 1629 Cro Car 181 : 79 ER 759 (KB)] the argument
of the members that only the House had the exclusive
jurisdiction to examine their conduct, and imposed fine and
sentenced them to imprisonment. The House of Lords
reversed [R. v. Elliot, 1668 Cro Car 605 : 79 ER 1121 (HL)]
the judgment of the King's Bench on the writ of error. One of
the errors specified was that the charge of seditious speech
and assault on the Speaker should not have been disposed of
by the same judgment. It was observed that while the
former was within the exclusive jurisdiction of the House, the
latter could "perhaps" be tried by the courts. It was not
expressly and categorically stated that the assault inside the
House could only be tried by the House.
33. In Bradlaugh v. Gossett [Bradlaugh v. Gossett,
(1884) LR 12 QBD 271 : 1884 EWHC 1] , an elected member
of the House of Commons prevented the Speaker from
administering oath. Subsequently, the Sergeant-at-Arms
exerted physical force to remove the member from the
precincts of the House. The elected member initiated action
against the Sergeant and the same was dismissed. Stephen,
J. in his concurring judgment observed that the House--
similar to a private person--has an exercisable right to use
force to prevent a trespasser from entering the House, and
authorise others to carry out its order. In that context he
observed : (QBD p. 283)
"... The only force which comes in question in this case is,
such force as any private man might employ to prevent a
28
trespass on his own land. I know of no authority for the
proposition that an ordinary crime committed in the House of
Commons would be withdrawn from the ordinary course of
criminal justice."
(emphasis supplied)
Stephen, J. sought to differentiate "ordinary crimes" from
"crimes". By the former, he referred to criminal offences that
are committed within the precincts of the House, but bear no
nexus to the effective participation in essential parliamentary
functions.
34. In R. v. Chaytor [R. v. Chaytor, (2011) 1 AC 684 :
(2010) 3 WLR 1707 : 2010 UKSC 52] , the UK Supreme
Court was dealing with the four accused persons who were
charged with false accounting in relation to parliamentary
expenses and had claimed immunity from legal proceedings
as it infringed their parliamentary privilege. Against them,
disciplinary proceedings were initiated by the House. Article
9 of the Bill of Rights, 1689 provides that the freedom of
speech and debates or proceedings in Parliament must not
be questioned by any court or place outside Parliament. The
question before the Court was what constituted "proceedings
in Parliament". Lord Phillips observed that : (AC p. 717, para
83)
"83. The House does not assert an exclusive jurisdiction
to deal with criminal conduct, even where this relates to or
interferes with proceedings in committee or in the House.
Where it is considered appropriate the police will be invited
to intervene with a view to prosecution in the
courts. Furthermore, criminal proceedings are unlikely to be
possible without the cooperation of Parliament. Before a
prosecution can take place it is necessary to investigate the
facts and obtain evidence."
(emphasis supplied)
The Law Lord further held that the submission of claims
is incidental to the administration of Parliament and
not proceedings of Parliament : (Chaytor case [R. v. Chaytor,
(2011) 1 AC 684 : (2010) 3 WLR 1707 : 2010 UKSC 52] , AC
p. 719, para 90)
29
"90. Where the House becomes aware of the possibility
that criminal offences may have been committed by a
Member in relation to the administration of the business of
Parliament in circumstances that fall outside the absolute
privilege conferred by Article 9, the considerations of policy
to which I have referred at para 61 above require that the
House should be able to refer the matter to the police for
consideration of criminal proceedings, or to cooperate with
the police in an inquiry into the relevant facts. That is what
the House has done in relation to the proceedings brought
against the three defendants."
35. Referring to the distinction made by Stephen, J.
in Bradlaugh [Bradlaugh v. Gossett, (1884) LR 12 QBD 271 :
1884 EWHC 1] , Lord Lodger observed : (Chaytor
case [R. v. Chaytor, (2011) 1 AC 684 : (2010) 3 WLR 1707 :
2010 UKSC 52] , AC p. 726, para 118)
“118. That remains the position to this day. I have
therefore no doubt that, if the offences with which the
appellants are charged are to be regarded as “ordinary
crimes”, then–even assuming that they are alleged to have
been committed entirely within the precincts of the House–
the appellants can be prosecuted in the Crown Court. The
only question, therefore, is whether there is any aspect of
the offences which takes them out of the category of
“ordinary crime” and into the narrower category of conduct
in respect of which the House would claim a privilege of
exclusive cognizance.”
(emphasis supplied)
36. From the above cases it is evident that a person
committing a criminal offence within the precincts of the
House does not hold an absolute privilege. Instead, he would
possess a qualified privilege, and would receive the
immunity only if the action bears nexus to the effective
participation of the member in the House.
C.2.2. Position in India
37. The immunity available to the MPs under Article
105(2) of the Constitution from liability to “any
30
proceedings in any court in respect of anything said or
any vote given by him in Parliament” [similar to Article
194(2) of the Constitution in case of MLAs] became
the subject-matter of the decision of the Constitution
Bench in P.V. Narasimha Rao [P.V. Narasimha
Rao v. State, (1998) 4 SCC 626 : 1998 SCC (Cri) 1108]
. The judgment of the Constitution Bench, which
consisted of S.C. Agrawal, J., G.N. Ray, J., Dr A.S.
Anand, J., S.P. Bharucha, J. and S. Rajendra Babu, J.,
comprised of three opinions. The first opinion was by
S.C. Agrawal, J. (on behalf of himself and Dr A.S.
Anand, J.), the second by S.P. Bharucha, J. (on behalf
of himself and S. Rajendra Babu, J.) and the third, by
G.N. Ray, J.
38. In understanding the judgment of the Constitution
Bench in P.V. Narasimha Rao case [P.V. Narasimha
Rao v. State, (1998) 4 SCC 626 : 1998 SCC (Cri) 1108] , it
becomes necessary at the outset to dwell on the decision of
G.N. Ray, J. In the course of his judgment, G.N. Ray, J.
agreed with the reasoning of S.C. Agrawal, J. that:
38.1. An MP is a public servant under Section 2(c) of the
Prevention of Corruption Act, 1988.
38.2. Since there is no authority to grant sanction for the
prosecution of an MP under Section 19(1) of the Prevention
of Corruption Act, 1988 (“the PC Act“), the court can take
cognizance of the offences mentioned in Section 19(1) in the
absence of sanction. However, before filing a charge-sheet in
respect of an offence punishable under Sections 7, 10, 11,
12 and 15 against an MP in a criminal court, the prosecuting
agency must obtain the sanction of the Chairman of the
Rajya Sabha or the Speaker of the Lok Sabha as the case
may be.
39. Therefore, on the first aspect, while understanding
the context and text of the decision, it is important to bear in
mind that Section 19(1) of the PC Act specifically mandates
sanction for prosecution of a public servant, a description
which is fulfilled by an MP. However, there being no authority
31
competent to grant sanction for the prosecution of a Member
of Parliament, S.C. Agrawal, J., speaking for himself and Dr
A.S. Anand, J., held that : (P.V. Narasimha Rao case [P.V.
Narasimha Rao v. State, (1998) 4 SCC 626 : 1998 SCC (Cri)
1108] , SCC pp. 702-703, para 98)
“98. … 3. Since there is no authority competent to
remove a Member of Parliament and to grant sanction for his
prosecution under Section 19(1) of the Prevention of
Corruption Act, 1988, the court can take cognizance of the
offences mentioned in Section 19(1) in the absence of
sanction but till provision is made by Parliament in that
regard by suitable amendment in the law, the prosecuting
agency, before filing a charge-sheet in respect of an offence
punishable under Sections 7, 10, 11, 13 and 15 of the 1988
Act against a Member of Parliament in a criminal court, shall
obtain the permission of the Chairman of the Rajya
Sabha/Speaker of the Lok Sabha, as the case may be.”
G.N. Ray, J. as noted earlier agreed with the above
formulation.
40. However, it is necessary to appreciate the factual
context of the case before dealing with the interpretation of
Article 105(3) of the Indian Constitution. On 26-7-1993, a
motion of no confidence was moved in the Lok Sabha against
the minority Government of Shri P.V. Narasimha Rao. The
support of fourteen members was needed to defeat the no-
confidence motion. The motion was sought on 28-7-1993.
251 members voted in support, while 265 voted against the
motion. It was alleged that certain MPs agreed to and did
receive bribes from certain other MPs. A prosecution was
launched against the bribe-givers and the bribe takers and
cognizance was taken by the Special Judge, Delhi.
41. Before the Constitution Bench, a question was raised
as to whether the legal proceedings against the said MPs
would be protected under the privileges and immunities
granted under Article 105(3) of the Constitution “in respect
of anything said or any vote given” by an MP. On the
interpretation of Article 105(3), the judgment of S.P.
Bharucha, J. speaking for himself and S. Rajendra Babu, J.,
received the concurrence of G.N. Ray, J. The charge against
32
the bribe givers, who were MPs, was in regard to the
commission of offences punishable under the PC Act or the
abetment of those offences. S.P. Bharucha, J. in the course
of his judgment held that Article 105(2) protects an MP
against proceedings in court “that relate to, or concern, or
have a connection or nexus with anything said, or a vote
given, by him in Parliament”. The judgment of the majority
on this aspect held : (P.V. Narasimha Rao case [P.V.
Narasimha Rao v. State, (1998) 4 SCC 626 : 1998 SCC (Cri)
1108] , SCC pp. 729-30, para 136)
“136. It is difficult to agree with the learned Attorney
General that though the words “in respect of” must receive a
broad meaning, the protection under Article 105(2) is limited
to court proceedings that impugn the speech that is given or
the vote that is cast or arises thereout or that the object of
the protection would be fully satisfied thereby. The object of
the protection is to enable Members to speak their mind in
Parliament and vote in the same way, freed of the fear of
being made answerable on that account in a court of law. It
is not enough that Members should be protected against civil
action and criminal proceedings, the cause of action of which
is their speech or their vote. To enable Members to
participate fearlessly in parliamentary debates, Members
need the wider protection of immunity against all civil and
criminal proceedings that bear a nexus to their speech or
vote. It is for that reason that a Member is not “liable to any
proceedings in any court in respect of anything said or any
vote given by him”. Article 105(2) does not say, which it
would have if the learned Attorney General were right, that a
Member is not liable for what he has said or how he has
voted. While imputing no such motive to the present
prosecution, it is not difficult to envisage a Member who has
made a speech or cast a vote that is not to the liking of the
powers that be being troubled by a prosecution alleging that
he had been party to an agreement and conspiracy to
achieve a certain result in Parliament and had been paid a
bribe.”
(emphasis supplied)
42. S.C. Agrawal, J. and Dr A.S. Anand, J. reached a
contrary conclusion on the subject : (P.V. Narasimha Rao
33
case [P.V. Narasimha Rao v. State, (1998) 4 SCC 626 : 1998
SCC (Cri) 1108] , SCC pp. 702-703, para 98)
“98. On the basis of the aforesaid discussion we arrive at
the following conclusion:
1. A Member of Parliament does not enjoy immunity
under Article 105(2) or under Article 105(3) of the
Constitution from being prosecuted before a criminal court
for an offence involving offer or acceptance of bribe for the
purpose of speaking or by giving his vote in Parliament or in
any committees thereof.
2. A Member of Parliament is a public servant under
Section 2(c) of the Prevention of Corruption Act, 1988.
3. Since there is no authority competent to remove a
Member of Parliament and to grant sanction for his
prosecution under Section 19(1) of the Prevention of
Corruption Act, 1988, the court can take cognizance of the
offences mentioned in Section 19(1) in the absence of
sanction but till provision is made by Parliament in that
regard by suitable amendment in the law, the prosecuting
agency, before filing a charge-sheet in respect of an offence
punishable under Sections 7, 10, 11, 13 and 15 of the 1988
Act against a Member of Parliament in a criminal court, shall
obtain the permission of the Chairman of the Rajya
Sabha/Speaker of the Lok Sabha, as the case may be.”
43. The view of S.C. Agrawal, J. and Dr A.S. Anand, J. on
the construction of Article 105(2) and Article 105(3) was
however the minority view since G.N. Ray, J. had concurred
with the view of S.P. Bharucha, J. and S. Rajendra Babu, J.
on this aspect. Analysing the decision of the majority led by
the judgment of S.P. Bharucha, J., the stand out feature is
this : the charge against the alleged bribe takers was that
they were party to a criminal conspiracy in pursuance of
which they had agreed to accept bribes to defeat the no-
confidence motion on the floor of the House. In pursuance of
the conspiracy, it was alleged that the bribe-givers had
passed on bribes to the alleged bribe takers. It was in this
context that the judgment noted : (P.V. Narasimha Rao
34
case [P.V. Narasimha Rao v. State, (1998) 4 SCC 626 : 1998
SCC (Cri) 1108] , SCC p. 729, para 134)
“134. … The nexus between the alleged conspiracy
and bribe and the no-confidence motion is explicit. The
charge is that the alleged bribe-takers received the
bribes to secure the defeat of the no-confidence
motion.”
44. Thus, the court observed that the connection
between the alleged conspiracy, the bribe and the no-
confidence motion was explicit, and came to the
conclusion that the alleged bribe takers received the
bribe to manipulate their votes to secure the defeat of
the no-confidence motion. It was in this context that
the Court observed that the expression “in respect of”
under Article 105(2) must receive a broad meaning
and the alleged conspiracy and bribe had a nexus to
and were in respect of those votes and that the
proposed inquiry in the criminal proceedings was in
regard to their votes in the motion of no-confidence.
45. The next judgment which is of significance in the
evolution of this body of law is the decision of the
Constitution Bench in Raja Ram Pal v. Lok Sabha [Raja Ram
Pal v. Lok Sabha, (2007) 3 SCC 184] . The case has become
known in popular lore as the “cash for query case”, where a
sting operation on a private channel depicted certain MPs
accepting money either directly or through middlemen as
consideration for raising questions in the House. Similarly,
another channel carried a telecast alleging improper conduct
of an MP in relation to the implementation of
the MPLADS Scheme. Following an enquiry by the committees
of the House, these MPs were expelled. This led to the
institution of writ petitions challenging the expulsion. In that
context, the issues which were for determination were :
(SCC p. 249, para 36)
“36. … 1. Does this Court, within the constitutional
scheme, have the jurisdiction to decide the content and
scope of powers, privileges and immunities of the
legislatures and its Members?
35
2. If the first question is answered in the affirmative, can
it be found that the powers and privileges of the legislatures
in India, in particular with reference to Article 105, include
the power of expulsion of their Members?
3. In the event of such power of expulsion being found,
does this Court have the jurisdiction to interfere in the
exercise of the said power or privilege conferred on
Parliament and its Members or committees and, if so, is this
jurisdiction circumscribed by certain limits?”
46. Y.K. Sabharwal, C.J. speaking for the majority (C.K.
Thakker, J. concurring) held that : (Raja Ram Pal case [Raja
Ram Pal v. Lok Sabha, (2007) 3 SCC 184] , SCC p. 259, para
62)
“62. In view of the above clear enunciation of law by
Constitution Benches of this Court in case after case, there
ought not be any doubt left that whenever Parliament, or for
that matter any State Legislature, claims any power or
privilege in terms of the provisions contained in Article
105(3), or Article 194(3), as the case may be, it is the Court
which has the authority and the jurisdiction to examine, on
grievance being brought before it, to find out if the particular
power or privilege that has been claimed or asserted by the
legislature is one that was contemplated by the said
constitutional provisions or, to put it simply, if it was such a
power or privilege as can be said to have been vested in the
House of Commons of Parliament of the United Kingdom as
on the date of commencement of the Constitution of India so
as to become available to the Indian Legislatures.”
(emphasis supplied)
47. The principle which emphatically emerges from
this judgment is that whenever a claim of privilege or
immunity is raised in the context of Article 105(3) or
Article 194(3), the Court is entrusted with the
authority and the jurisdiction to determine whether
the claim is sustainable on the anvil of the
constitutional provision. The Constitution Bench held
that neither Parliament nor the State Legislatures in
India can assert the power of “self-composition or in
36
other words the power to regulate their own
constitution in the manner claimed by the House of
Commons or in the UK”. The decision therefore
emphasises the doctrine of constitutional supremacy
in India as distinct from parliamentary supremacy in
the UK.
48. A three-Judge Bench of this Court has made a
distinction between legislative functions and non-legislative
functions of the members of the House for determination of
the scope of the privileges. In Lokayukta [Lokayukta v. State
of M.P., (2014) 4 SCC 473] , the petitioner initiated action
against certain officers of the State Legislative Assembly for
indulging in corruption relating to construction work and
initiated criminal proceedings against the officials. In turn,
the Speaker of the House issued a letter to the petitioner
alleging breach of privilege, against which the petitioner filed
a writ petition before this Court. Allowing the petition, P.
Sathasivam, C.J. speaking for a three-Judge Bench observed
that privileges are available only as far as they are essential
for the members to carry out their legislative functions. He
held that the scope of the privileges must be determined
based on the need for them. The Court observed : (SCC pp.
497-98, paras 51-52)
“51. The scope of the privileges enjoyed depends upon
the need for privileges i.e. why they have been provided for.
The basic premise for the privileges enjoyed by the Members
is to allow them to perform their functions as Members and
no hindrance is caused to the functioning of the House. The
Committee of Privileges of the Tenth Lok Sabha, noted the
main arguments that have been advanced in favour of
codification, some of which are as follows:
***
52. It is clear that the basic concept is that the privileges
are those rights without which the House cannot perform its
legislative functions. They do not exempt the Members from
their obligations under any statute which continues to apply
to them like any other law applicable to ordinary citizens.
Thus, enquiry or investigation into an allegation of corruption
against some officers of the Legislative Assembly cannot be
said to interfere with the legislative functions of the
37
Assembly. No one enjoys any privilege against criminal
prosecution.”
48. A three-Judge Bench of this Court has made a
distinction between legislative functions and non-legislative
functions of the members of the House for determination of
the scope of the privileges. In Lokayukta [Lokayukta v. State
of M.P., (2014) 4 SCC 473] , the petitioner initiated action
against certain officers of the State Legislative Assembly for
indulging in corruption relating to construction work and
initiated criminal proceedings against the officials. In turn,
the Speaker of the House issued a letter to the petitioner
alleging breach of privilege, against which the petitioner filed
a writ petition before this Court. Allowing the petition, P.
Sathasivam, C.J. speaking for a three-Judge Bench observed
that privileges are available only as far as they are essential
for the members to carry out their legislative functions. He
held that the scope of the privileges must be determined
based on the need for them. The Court observed : (SCC pp.
497-98, paras 51-52)
“51. The scope of the privileges enjoyed depends upon
the need for privileges i.e. why they have been provided for.
The basic premise for the privileges enjoyed by the Members
is to allow them to perform their functions as Members and
no hindrance is caused to the functioning of the House. The
Committee of Privileges of the Tenth Lok Sabha, noted the
main arguments that have been advanced in favour of
codification, some of which are as follows:
***
52. It is clear that the basic concept is that the privileges
are those rights without which the House cannot perform its
legislative functions. They do not exempt the Members from
their obligations under any statute which continues to apply
to them like any other law applicable to ordinary citizens.
Thus, enquiry or investigation into an allegation of corruption
against some officers of the Legislative Assembly cannot be
said to interfere with the legislative functions of the
Assembly. No one enjoys any privilege against criminal
prosecution.”
(emphasis supplied)
38
49. Having detailed the position of law above, the next
section would discuss the validity of the argument invoking
the immunities and privileges under Article 194 as a
hypothesis for barring legal proceedings for acts of
destruction of public property in the present case.
(emphasis supplied)
.... .... ....
59. The gravity of the offence involving a destruction
of public property was considered by this Court
in Destruction of Public & Private Properties, In
re [Destruction of Public & Private Properties, In re, (2009) 5
SCC 212 : (2009) 2 SCC (Civ) 451 : (2009) 2 SCC (Cri) 629]
, where it took suomotu cognizance to remedy the large-
scale destruction of public and private properties in
agitations, bandhs, hartals and other forms of “protest”. The
Court formed two committees chaired by K.T. Thomas, J.
(former Judge of this Court) and Mr Fali S. Nariman, Senior
Counsel and adopted the recommendations of both the
committees in laying down specific guidelines for
investigation and prosecution of offences involving
destruction of public property, assessment of damages and
determination of compensation in cases involving destruction
of property. In the more recent decision in Kodungallur Film
Society v. Union of India [Kodungallur Film Society v. Union
of India, (2018) 10 SCC 713 : (2019) 1 SCC (Cri) 517] , this
Court noted that the guidelines in Destruction of Public &
Private Properties, In re [Destruction of Public & Private
Properties, In re, (2009) 5 SCC 212 : (2009) 2 SCC (Civ)
451 : (2009) 2 SCC (Cri) 629] have been considered by the
Union of India and a draft Bill for initiating legislative
changes along the lines of the recommendations is under
consideration. The Court also issued guidelines on preventive
measures to curb mob violence, determining compensation
and fixing liability for offences, and in regard to the
responsibility of police officials for investigation of such
crimes.
60. Based on the above, it is evident that there
has been a growing recognition and consensus both in
this Court and Parliament that acts of destruction of
public and private property in the name of protests
39
should not be tolerated. Incidentally, the Kerala
Legislative Assembly also enacted the Kerala
Prevention of Damage to Private Property and
Payment of Compensation Act, 2019 (9 of 2019) to
complement the Central legislation, the Prevention of
Damage to Public Property Act, 1984, with a special
focus on private property.
61. The persons who have been named as the
accused in the FIR in the present case held a
responsible elected office as MLAs in the Legislative
Assembly. In the same manner as any other citizen,
they are subject to the boundaries of lawful behaviour
set by criminal law. No member of an elected
legislature can claim either a privilege or an immunity
to stand above the sanctions of the criminal law, which
applies equally to all citizens. The purpose and object
of the 1984 Act was to curb acts of vandalism and
damage to public property including (but not limited
to) destruction and damage caused during riots and
public protests.
62. A member of the legislature, the opposition
included, has a right to protest on the floor of the legislature.
The right to do so is implicit in Article 105(1) in its
application to Parliament and Article 194(1) in its application
to the State Legislatures. The first clauses of both these
Articles contain a mandate that “there shall be freedom of
speech” in Parliament and in the legislature of every State.
Nonetheless, the freedom of speech which is protected by
the first clause is subject to the provisions of the Constitution
and to the rules and standing orders regulating the
procedure of the legislature. The second clause provides
immunity against liability “to any proceedings in any court”
in respect of “anything said or any vote given” in the
legislature or any committee. Moreover, no person is to be
liable in respect of the publication by or under the authority
of Parliament or of the House of the State Legislature of any
report, paper, votes or proceedings. We have earlier traced
the history of clause (3) of Article 194 as it originally stood
under which the powers, privileges and immunities of the
members of Parliament and of the State Legislatures were
those which were recognised for Members of the House of
40Commons immediately before the enforcement of the
Constitution. This provision, as we have seen, was sought to
be amended by the Forty-second Amendment and was
ultimately amended by the Forty-fourth Amendment, from
which it derives its present form. It recognises the powers,
privilege and immunities as they stood immediately before
the enforcement of Section 26 of the Forty-fourth
Amendment.
63. Tracing the history of the privileges and
immunities enjoyed by the Members of the House of
Commons, Erskine May makes a doctrinal division of the
position in the UK into various phases. However, the stand-
out feature which emerges from the privileges and
immunities of the members of the House of Commons is the
absence of an immunity from the application of criminal law.
This jurisprudential development began in Elliot [R. v. Elliot,
(1629) 3 St Tr 292-336. Ed. : See also 1629 Cro Car 181 :
79 ER 759 (KB)] , was developed by Stephen, J.
in Bradlaugh [Bradlaugh v. Gossett, (1884) LR 12 QBD 271 :
1884 EWHC 1] , and cemented by the UK Supreme Court
in Chaytor [R. v. Chaytor, (2011) 1 AC 684: (2010) 3 WLR
1707 : 2010 UKSC 52] .
64. There is a valid rationale for this position.
The purpose of bestowing privileges and immunities to
elected members of the legislature is to enable them
to perform their functions without hindrance, fear or
favour. This has been emphasised by the three-Judge Bench
in Lokayukta [Lokayukta v. State of M.P., (2014) 4 SCC 473]
. The oath of office which members of Parliament and of the
State Legislature have to subscribe requires them to
(i) bear true faith and allegiance to the Constitution of
India as by law established;
(ii) uphold the sovereignty and integrity of India; and
(iii) faithfully discharge the duty upon which they are
about to enter.
It is to create an environment in which they can
perform their functions and discharge their duties
41
freely that the Constitution recognises privileges and
immunities. These privileges bear a functional
relationship to the discharge of the functions of a
legislator. They are not a mark of status which makes
legislators stand on an unequal pedestal. It is of
significance that though Article 19(1)(a) expressly
recognises the right to freedom of speech and
expression as inhering in every citizen, both Articles
105(1) and 194(1) emphasise that “there shall be
freedom of speech” in Parliament and in the
legislature of a State. In essence, Article 19(1)(a)
recognises an individual right to the freedom of speech
and expression as vested in all citizens. Articles
105(1) and 194(1) speak about the freedom of speech
in Parliament and State Legislatures and in that
context must necessarily encompass the creation of an
environment in which free speech can be exercised
within their precincts. The recognition that there shall be
freedom of speech in Parliament and the State Legislatures
underlines the need to ensure the existence of conditions in
which elected representatives can perform their duties and
functions effectively. Those duties and functions are as
much a matter of duty and trust as they are of a right
inhering in the representatives who are chosen by the
people. We miss the wood for the trees if we focus on
rights without the corresponding duties cast upon
elected public representatives.
65. Privileges and immunities are not gateways
to claim exemptions from the general law of the land,
particularly as in this case, the criminal law which
governs the action of every citizen. To claim an
exemption from the application of criminal law would
be to betray the trust which is impressed on the
character of elected representatives as the makers and
enactors of the law. The entire foundation upon which
the application for withdrawal under Section 321 was
moved by the Public Prosecutor is based on a
fundamental misconception of the constitutional
provisions contained in Article 194. The Public
Prosecutor seems to have been impressed by the
existence of privileges and immunities which would
stand in the way of the prosecution. Such an
42
understanding betrays the constitutional provision and
proceeds on a misconception that elected members of
the legislature stand above the general application of
criminal law.
66. The reliance placed by the appellants on P.V.
Narasimha Rao [P.V. Narasimha Rao v. State, (1998) 4 SCC
626 : 1998 SCC (Cri) 1108] to argue that the action of the
respondent-accused inside the House was a form of “protest”
which bears a close nexus to the freedom of speech, and
thus is covered by Article 194(2) is unsatisfactory. The
majority in P.V. Narasimha Rao [P.V. Narasimha
Rao v. State, (1998) 4 SCC 626 : 1998 SCC (Cri) 1108] dealt
with the interpretation of the phrase “in respect of” and gave
it a wide import. At the same time, the majority observed
that there must be a nexus between the act or incident
(which in that case was the act of bribery in the context of
the votes cast on a motion of no-confidence) and the
freedom of speech or to vote. It was emphasised that the
bribe was given to manipulate the votes of the MPs and thus,
it bore a close nexus to the freedom protected under Article
105(2). The case however, did not deal with the ambit of the
privilege of “freedom of speech” provided to the members of
the House. It was in Lokayukta [Lokayukta v. State of M.P.,
(2014) 4 SCC 473] that a three-Judge Bench of this Court
laid down the law for the identification of the content of the
privileges. It was held that the members shall only
possess such privileges that are essential for
undertaking their legislative functions. An alleged act
of destruction of public property within the House by
the members to lodge their protest against the
presentation of the Budget cannot be regarded as
essential for exercising their legislative functions. The
actions of the members have trodden past the line of
constitutional means, and is thus not covered by the
privileges guaranteed under the Constitution.”
(Emphasis supplied)
The facts obtaining in the case of K.AJITH is noticed at paragraph
3 supra. A complaint comes to be registered before the Museum
43
Police Station of Kerala by the Legislative Secretary which becomes
a crime, in Crime No.236 of 2015 for the offences punishable
under Sections 427, 447 r/w 34 of the IPC and Section 3(1)
of the Prevention of Damage to Public Property Act. Police
conduct investigation and file a final report and it is then the High
Court of Kerala was approached seeking quashment of proceedings
on account of it being violative of Article 194 of the Constitution.
The Apex Court answers analysing the entire spectrum of law or the
legal position in England and in India and holds that privileges
and immunities are not gateways to claim exemptions from
general law of the land, particularly as in that case, the
criminal law which governs the action of every citizen. The
Apex Court further holds that to claim an exemption from
the application of criminal law would be to betray the trust
which is impressed on the character of elected
representatives. The Apex Court thrusts functional nexus for
every act of a Parliamentarian in the Parliament or a
Legislator in the Legislature. It holds that members shall
only possess such privileges that are essential for
undertaking their legislative functions. The alleged act
44
therein which was of destruction of public property within
the house by the members by lodging a protest against
presentation of the Budget was no part of legislative
function. Therefore, the Apex Court declines to hold that
criminal case should be obliterated owing to the privilege of
a legislators.
16. He would further seek to place reliance upon the Division
Bench judgment of the High Court of Kerala in the case of
A.KUNJAN NADAR v. THE STATE8 wherein it is held as follows:
“…. …. ….
4. As stated before there is no statutory provision
granting the privilege or immunity invoked by the petitioner and
it is clear from May’s Parliamentary Pratice, 15th Edn. 1950), p.
78 that “the privilege of freedom from arrest is not
claimed in respect of criminal offences or statutory
detention” and that the said freedom “is limited to Civil
causes, and has not been allowed to interfere with the
administration of criminal justice or emergency
legislation.””
(Emphasis supplied)
The High Court of Kerala in the afore-quoted paragraph holds that
the privilege of freedom from arrest cannot be claimed in respect of
8
1955 SCC OnLine Ker.19
45criminal offences or statutory detention. At best it is limited to civil
causes and privilege cannot be allowed to interfere with the
administration of criminal justice.
Judgment, relied on in unison, by all the Protagonists:
17. The respective learned senior counsel for the petitioner
and the complainant and the learned State Public Prosecutor, have
in common, placed reliance upon the judgment of the 7 Judge
judgment of the Apex Court in the case of SITA SOREN supra.
Albeit, their reliance is upon different paragraphs. I, therefore,
deem it appropriate to notice those paragraphs:
".... .... ....
A. Reference
3. The criminal appeal arises from a judgment dated
17-12-2014 [Sita Soren v. Union of India, 2014 SCC
OnLineJhar 302] of the High Court of Jharkhand. An election
was held on 30-3-2012 to elect two Members of the Rajya
Sabha representing the State of Jharkhand. The appellant,
belonging to the Jharkhand Mukti Morcha (“JMM”), was a
Member of the Legislative Assembly of Jharkhand. The
allegation against the appellant is that she accepted a bribe
from an independent candidate for casting her vote in his
favour. However, as borne out from the open balloting for
the Rajya Sabha seat, she did not cast her vote in favour of
the alleged bribe-giver and instead cast her vote in favour of
a candidate belonging to her own party. The round of
election in question was annulled and a fresh election was
46
held where the appellant voted in favour of the candidate
from her own party again.
4. The appellant moved the High Court to quash the
charge-sheet and the criminal proceedings instituted against
her. The appellant claimed protection under Article 194(2) of
the Constitution, relying on the judgment of the Constitution
Bench of this Court in P.V. Narasimha Rao v. CBI [P.V.
Narasimha Rao v. CBI, (1998) 4 SCC 626 : 1998 SCC (Cri)
1108] . The High Court declined to quash the criminal
proceedings on the ground that the appellant had not cast
her vote in favour of the alleged bribe-giver and thus, is not
entitled to the protection under Article 194(2). The High
Court’s reasoning primarily turned on this Court’s decision
in P.V. Narasimha Rao [P.V. Narasimha Rao v. CBI, (1998) 4
SCC 626 : 1998 SCC (Cri) 1108] . The controversy in P.V.
Narasimha Rao [P.V. Narasimha Rao v. CBI, (1998) 4 SCC
626 : 1998 SCC (Cri) 1108] and the present case turns on
the interpretation of the provisions of Article 105(2) of the
Constitution (which deals with the powers, privileges, and
immunities of the Members of Parliament and Parliamentary
Committees) and the equivalent provision in Article 194(2) of
the Constitution which confers a similar immunity to the
Members of the State Legislatures.
5. On 23-9-2014 [Sita Soren v. Union of India, 2014
SCC OnLine SC 1889], a Bench of two Judges of this Court,
before which the appeal was placed, was of the view that
since the issue arising for consideration is “substantial and of
general public importance”, it must be placed before a larger
Bench of three Judges of this Court. On 7-3-2019 [Sita
Soren v. Union of India, (2024) 3 SCC 797: (2024) 2 SCC
(Cri) 339], a Bench of three Judges which heard the appeal
observed that the precise question was dealt with in a
judgment of a five-Judge Bench in P.V. Narasimha Rao [P.V.
Narasimha Rao v. CBI, (1998) 4 SCC 626: 1998 SCC (Cri)
1108] . The Bench [Sita Soren v. Union of India, (2024) 3
SCC 797: (2024) 2 SCC (Cri) 339] was of the view that
“having regard to the wide ramifications of the question that
has arisen, the doubts raised and the issue being a matter of
public importance”, the matter must be referred to a larger
Bench.
47
6. Finally, by an order dated 20-9-2023 [Sita
Soren v. Union of India, (2024) 3 SCC 786: (2024) 2 SCC
(Cri) 328], a five-Judge Bench of this Court recorded prima
facie reasons doubting the correctness of the decision in P.V.
Narasimha Rao [P.V. Narasimha Rao v. CBI, (1998) 4 SCC
626: 1998 SCC (Cri) 1108] and referred the matter to a
larger Bench of seven Judges. The operative part of the
order reported as Sita Soren v. Union of India [Sita
Soren v. Union of India, (2024) 3 SCC 786: (2024) 2 SCC
(Cri) 328], is extracted below: (Sita Soren case [Sita
Soren v. Union of India, (2024) 3 SCC 786: (2024) 2 SCC
(Cri) 328] , SCC pp. 795-96, paras 24 & 26)
“24. We are inclined to agree… that the view
which has been expressed in the decision of the majority
in P.V. Narasimha Rao [P.V. Narasimha Rao v. CBI,
(1998) 4 SCC 626: 1998 SCC (Cri) 1108] requires to be
reconsidered by a larger Bench. Our reasons prima facie
for doing so are formulated below:
24.1. Firstly, the interpretation of Article 105(2)
and the corresponding provisions of Article 194(2) of the
Constitution must be guided by the text, context and the
object and purpose underlying the provision. The
fundamental purpose and object underlying Article
105(2) of the Constitution is that Members of
Parliament, or as the case may be of the State
Legislatures must be free to express their views on the
floor of the House or to cast their votes either in the
House or as Members of the Committees of the House
without fear of consequences. While Article 19(1)(a) of
the Constitution recognises the individual right to the
freedom of speech and expression, Article 105(2)
institutionalises that right by recognising the importance
of the Members of the Legislature having the freedom to
express themselves and to cast their ballots without fear
of reprisal or consequences. In other words, the object
of Article 105(2) or Article 194(2) does not prima facie
appear to be to render immunity from the launch of
criminal proceedings for a violation of the criminal law
which may arise independently of the exercise of the
rights and duties as a Member of Parliament or of the
Legislature of a State;
24.2. Secondly, in the course of judgment in P.V.
Narasimha Rao [P.V. Narasimha Rao v. CBI, (1998) 4
48SCC 626 : 1998 SCC (Cri) 1108] , S.C. Agarwal, J. noted
a serious anomaly if the construction in support of the
immunity under Article 105(2) for a bribe-taker were to
be accepted : a Member would enjoy immunity from
prosecution for such a charge, if the Member accepts the
bribe for speaking or giving their vote in Parliament in a
particular manner and in fact speaks or gives a vote in
Parliament in that manner. On the other hand, no
immunity would attach, and the Member of the
Legislature would be liable to be prosecuted on a charge
of bribery, if they accept the bribe for not speaking or
for not giving their vote on a matter under consideration
before the House but they act to the contrary. This
anomaly, Agarwal, J. observed, would be avoided if the
words “in respect of” in Article 105(2) are construed to
mean “arising out of”. In other words, in such a case,
the immunity would be available only if the speech that
has been made or the vote that has been given is an
essential and integral part for the cause of action for the
proceedings giving rise to the law; and24.3. Thirdly, the judgment of S.C. Agarwal, J.
has specifically dwelt on the question as to when the
offence of bribery would be complete. The judgment
notes that the offence is complete with the acceptance
of the money or on the agreement to accept the money
being concluded and is not dependent on the
performance of the illegal promise by the receiver. The
receiver of the bribe would be treated to have
committed the offence even when he fails to perform the
bargain underlying the tender and acceptance of the
bribe. This aspect bearing on the constituent elements of
the offence of a bribe finds elaboration in the judgment
of Agarwal, J. but is not dealt with in the judgment of
the majority.
***
26. For the above reasons, prima facie at this
stage, we are of the considered view that the
correctness of the view of the majority in P.V.
Narasimha Rao [P.V. Narasimha Rao v. CBI, (1998) 4
SCC 626: 1998 SCC (Cri) 1108] should be reconsidered
by a larger Bench of seven Judges.”
7. The scope of the present judgment is limited to the
reference made by the order of this Court dated 20-9-2023
[Sita Soren v. Union of India, (2024) 3 SCC 786 : (2024) 2
49
SCC (Cri) 328] doubting the correctness of P.V. Narasimha
Rao [P.V. Narasimha Rao v. CBI, (1998) 4 SCC 626 : 1998
SCC (Cri) 1108] . The merits of the appellant’s case and
whether she committed the alleged offence are not being
adjudicated by this Court at this stage. Nothing contained in
this judgment may be construed as having a bearing on the
merits of the trial or any other proceedings arising from it.”
The reference was due to the doubt that arose before a subsequent
Bench, qua the correctness of the judgment in the case of
P.V.NARASIMHA RAO v. STATE (CBI/SPE)9 and the judgement
in the case of SITA SOREN v. UNION OF INDIA10. This led to the
constitution of the 7 Judge Bench. The views that fell from the
dissenting opinion formed the fulcrum of the reference. Therefore,
it is necessary to notice what was the view. It reads as follows:
“…. …. ….
13. On the other hand, S.C. Agarwal, J. held that
neither the alleged bribe-takers nor the alleged bribe-givers
enjoyed the protection of Article 105(2). An MP does not
enjoy immunity under Article 105(2) from being prosecuted
for an offence involving the offer or acceptance of a bribe for
speaking or giving his vote in Parliament or any Committee.
In his opinion, Agarwal, J. held as follows:
13.1. The object of the immunity under Article
105(2) is to ensure the independence of legislators for
the healthy functioning of parliamentary democracy.
An interpretation of Article 105(2) which enables an
MP to claim immunity from prosecution for an offence
of bribery would place them above the law. This would
9
(1998) 4 SCC 626
10
(2024) 3 SCC 786
50
be repugnant to the healthy functioning of
parliamentary democracy and subversive of the rule of
law;
13.2. The expression “in respect of” precedes the
words “anything said or any vote given” in Article 105(2).
The words “anything said or any vote given” can only mean
speech that has been made or a vote that has already been
given and does not extend to cases where the speech has
not been made or the vote has not been cast. Therefore,
interpreting the expression “in respect of” widely
would result in a paradoxical situation. An MP would
be liable to be prosecuted for bribery if he accepted a
bribe for not speaking or not giving his vote on a
matter, but he would enjoy immunity if he accepted
the bribe for speaking or giving his vote in a particular
way and actually speaks or gives his vote in that
manner. It is unlikely that the framers of the
Constitution intended to make such a distinction;
13.3. The phrase “in respect of” must be
interpreted to mean “arising out of”. Immunity under
Article 105(2) is available only to give protection
against liability for an act that follows or succeeds as a
consequence of making the speech or giving of vote by
an MP and not for an act that precedes the speech or
vote and gives rise to liability which arises
independently of the speech or vote;
13.4. The offence of criminal conspiracy is made out
on the conclusion of an agreement to commit the offence of
bribery and the performance of the act pursuant to the
agreement is not of any consequence. Similarly, the act of
acceptance of a bribe for speaking or giving a vote against
the motion arises independently of the making of the speech
or giving of the vote by the MP. Hence, liability for the
offence cannot be treated as “in respect of anything said or
any vote given in Parliament;” and
13.5. The international trend, including law in
the United States, Australia and Canada, reflects the
position that legislators are liable to be prosecuted for
bribery in connection with their legislative activities.
51
Most of the Commonwealth countries treat corruption
and bribery by Members of the Legislature as a
criminal offence. In the United Kingdom also there is a
move to change the law in this regard. There is no
reason why legislators in India should not be covered
by laws governing bribery and corruption when all
other public functionaries are subject to such laws.
14. G.N. Ray, J. in a separate opinion concurred with
the reasoning of Agarwal, J. that an MP is a public servant
under the PC Act and on the question regarding the
sanctioning authority under the PC Act. However, on the
interpretation of Article 105(2), G.N. Ray, J. concurred with
the judgment of Bharucha, J. Hence, the opinion authored by
Bharucha, J. on the interpretation of Article 105(2)
represents the view of the majority of three Judges of this
Court. [ The opinion authored by S.P. Bharucha, J. has been
referred to as majority judgment hereinafter.] The opinion
authored by S.C. Agarwal, J. on the other hand, represents
the view of the minority. [ The opinion authored by S.C.
Agarwal, J. has been referred to as minority judgment
hereinafter.]”
(Emphasis supplied)
The Apex Court elucidates Articles 105(2) and 194 of the
Constitution of India which deal with privileges of Parliamentarians
and Legislators as follows:
“…. …. ….
60. The provisions of the 1919 Act were substantially
retained in Section 28(1) of the Government of India Act, 1935.
Section 28(1) reads thus:
“28. (1) Subject to the provisions of this Act and
the rules and standing orders regulating the procedure of
the Federal Legislature, there shall be freedom of speech
in the Legislature, and no Member of the Legislature shall
be liable to any proceedings in any court in respect of
52anything said or any vote given by him in the Legislature
or any Committee thereof, and no person shall be so liable
in respect of the publication by or under the authority of
either Chamber of the Legislature of any report, paper,
votes or proceedings.”
61. A corresponding provision was made in Section
71(1) of the 1935 Act with respect to Provincial
Legislatures. The House was empowered to make rules
for the conduct of proceedings. However, they were
always to give way to the rules framed by the Governor
General for the House. Parliamentary privileges had
struck root in India on legislators demanding parity with
UK House of Commons with reasonable adjustments to
account for Indian needs. This was because legislators in
India felt that their discharge of legislative functions
would be adversely affected in the absence of these
privileges. Prominent among the demands of legislators
were the power to punish for contempt of the House,
supremacy of the Chair in matters of the House, and
freedom of speech and freedom from arrest to allow
Members to partake in the proceedings and discharge
their functions.
62. At no point were these privileges demanded as
a blanket immunity from criminal law. Even in the face of
colonial reluctance, the demand for parliamentary
privileges in India was always tied to the relationship
which it bore to the functions which the Indian legislators
sought to discharge.
63. This background prevailed when the Constituent
Assembly was deciding the fate of Articles 85 and 169 of the
draft Constitution which have since become Articles 105 and
194 of the Constitution. Our founding parents intended the
Constitution to be a “modernising” force. Parliamentary form of
democracy was the first level of this modernising influence
envisaged by the framers of the Constitution. [ Granville
Austin, The Indian Constitution : Cornerstone of a Nation (OUP,
1972) ix.] The Constitution was therefore born in an
environment of idealism and a strength of purpose born of the
struggle for Independence. The framers intended to have a
Constitution which would light the way for a modern India. [
53
Granville Austin, The Indian Constitution : Cornerstone of a
Nation (OUP, 1972) xiii.]
64. When the Constituent Assembly convened to discuss
Article 85 of the draft Constitution, Mr H.V. Kamath moved an
amendment to remove the reference to the House of Commons
in UK and replace it with the Dominion Legislature in India
immediately before the commencement of the Constitution.
Opposing this amendment Mr Shibban Lal Saxena said, “So far
as I know there are no privileges which we enjoy and if he
wants the complete nullification of all our privileges he is
welcome to have his amendment adopted.” [ CAD Vol. VIII 19-
5-1949 draft Article 85.] The members of the Constituent
Assembly were therefore keenly aware that their privileges
under the colonial rule were not “ancient and undoubted” like
the House of Commons in UK but a statutory grant made by
successive enactments and assertion by legislatures.
F. Purport of parliamentary privilege in India
I. Functional analysis
65. Article 105 which is located in Part V Chapter II of the
Constitution stipulates the powers, privileges, and immunities of
Parliament, its Members and Committees. An analogous
provision concerning State Legislatures is in Article 194 of the
Constitution. Article 105 reads as follows:
“105. Powers, privileges, etc. of the Houses of
Parliament and of the Members and Committees
thereof.–(1) Subject to the provisions of this
Constitution and to the rules and standing orders
regulating the procedure of Parliament, there shall be
freedom of speech in Parliament.
(2) 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 no person shall be so liable in respect of the
publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and
immunities of each House of Parliament, and of the
54Members and the Committees of each House, shall be
such as may from time to time be defined by Parliament
by law, and, until so defined, shall be those of that House
and of its Members and Committees immediately before
the coming into force of Section 15 of the Constitution
(Forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall
apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to
take part in the proceedings of, a House of Parliament or
any Committee thereof as they apply in relation to
Members of Parliament.”
66. Article 105 of the Constitution has four
clauses. Clause (1) declares that there shall be freedom
of speech in Parliament. This freedom is subject to the
Constitution and to the rules and standing orders
regulating the procedure in Parliament. Therefore, the
freedom of speech in Parliament would be subject to the
provisions that regulate its procedure framed under
Article 118. It is also subject to Article 121 which
restricts Parliament from discussing the conduct of any
Judge of the Supreme Court or of a High Court in the
discharge of their duties except upon a motion for
presenting an address to the President praying for the
removal of the Judge.
67. The freedom of speech guaranteed in
Parliament under Article 105(1) is distinct from that
guaranteed under Article 19(1)(a). In Alagaapuram R.
Mohanraj v. T.N. Legislative Assembly [Alagaapuram R.
Mohanraj v. T.N. Legislative Assembly, (2016) 6 SCC 82]
this Court delineated the differences in these freedoms
as follows:
67.1. While the fundamental right of speech
guaranteed under Article 19(1)(a) inheres in every
citizen, the freedom of speech contemplated under
Articles 105 and 194 is not available to every citizen but
only to a Member of the Legislature;
55
67.2. Article 105 is available only during the tenure of
the membership of those bodies. On the other hand, the
fundamental right under Article 19(1)(a) is inalienable;
67.3. Article 105 is limited to the premises of the
legislative bodies. Article 19(1)(a) has no such geographical
limitations; and67.4. Article 19(1)(a) is subject to reasonable
restrictions which are compliant with Article 19(2). However,
the right of free speech available to a legislator under Articles
105 or 194 is not subject to such limitations. That an express
provision is made for freedom of speech in Parliament in
clause (1) of Article 105 suggests that this freedom is
independent of the freedom of speech conferred by Article 19
and is not restricted by the exceptions contained therein.
68. Clause (2) of Article 105 has two limbs. The
first prescribes that a Member of Parliament shall not be
liable before any court in respect of “anything said or
any vote given” by them in Parliament or any
Committee thereof. The second limb prescribes that no
person shall be liable before any court in respect of the
publication by or under the authority of either House of
Parliament of any report, paper, vote or proceedings.
The vote given by a Member of Parliament is an
extension of speech. Therefore, the freedom of a
Member of Parliament to cast a vote is also protected by
the freedom of speech in Parliament. In Tej Kiran
Jain v. N. Sanjiva Reddy [Tej Kiran Jain v. N. Sanjiva
Reddy, (1970) 2 SCC 272] , a six-Judge Bench of this
Court held that Article 105(2) confers immunity in
respect of “anything said” so long as it is “in
Parliament”. Therefore, the immunity is qualified by the
fact that it must be attracted to speech during the
conduct of business in Parliament. This Court held that
the word “anything” is of the widest import and is
equivalent to “everything”. It is only limited by the term
“in Parliament”.
69. Clauses (1) and (2) explicitly guarantee freedom of
speech in Parliament. Clause (1) is a positive postulate which
guarantees freedom of speech whereas clause (2) is an
56
extension of the same freedom postulated negatively. It does
so by protecting the speech, and by extension a vote, from
proceedings before a court. Freedom of speech in the Houses
of Parliament and their Committees is a necessary privilege,
essential to the functioning of the House. As we have noted
above, the privilege of free speech in the House of Parliament
or Legislature can be traced to the struggle of the Indian
legislators and was granted in progression by the Colonial
Government. This privilege is not only essential to the ability
of Parliament and its Members to carry out their duties, but it
is also at the core of the function of a democratic legislative
institution. Members of Parliament and Legislatures represent
the will of the people and their aspirations.
70. The Constitution was adopted to have a
modernising influence. The Constitution is intended to
meet the aspirations of the people, to eschew an unjust
society premised on social hierarchies and
discrimination, and to facilitate the path towards an
egalitarian society. Freedom of speech in Parliament
and the legislatures is an arm of the same aspiration so
that Members may express the grievances of their
constituents, express diverse perspectives and ventilate
the perspectives of their constituents. Freedom of
speech in Parliament ensures that the Government is
held accountable by the House. In Kalpana Mehta [Kalpana
Mehta v. Union of India, (2018) 7 SCC 1] one of us (D.Y.
Chandrachud, J.) had occasion to elucidate the importance of
this privilege : (SCC p. 92, paras 181-82)
“181. … Parliament represents collectively, through
the representative character of its Members, the voice and
aspirations of the people. Free speech within Parliament is
crucial for democratic governance. It is through the
fearless expression of their views that Parliamentarians
pursue their commitment to those who elect them. The
power of speech exacts democratic accountability from
elected Governments. The free flow of dialogue ensures
that in framing legislation and overseeing government
policies, Parliament reflects the diverse views of the
electorate which an elected institution represents.
182. The Constitution recognises free speech as a
fundamental right in Article 19(1)(a). A separate
57
articulation of that right in Article 105(1) shows how
important the debates and expression of view in
Parliament have been viewed by the draftspersons. Article
105(1) is not a simple reiteration or for that matter, a
surplusage. It embodies the fundamental value that the
free and fearless exposition of critique in Parliament is the
essence of democracy. Elected Members of Parliament
represent the voices of the citizens. In giving expression
to the concerns of citizens, parliamentary speech
enhances democracy.”
(emphasis supplied)
71. Notably, unlike the House of Commons in UK,
India does not have “ancient and undoubted” rights
which were vested after a struggle between Parliament
and the King. On the contrary, privileges were always
governed by statute in India. The statutory privilege
transitioned to a constitutional privilege after the
commencement of the Constitution. However, while the
drafters of the Constitution expressly envisaged the
freedom of speech in Parliament, they left the other
privileges to be decided by Parliament through
legislation. Clause (3) of Article 105 states that in
respect of privileges not falling under clauses (1) and
(2) of Article 105, the powers, privileges and
immunities of each House of Parliament, and of the
Members and the Committees of each House, shall be
such as may from time to time be defined by Parliament
by law. Until Parliament defines these privileges, they are to
be those which the House and its Members and Committees
enjoyed immediately before the coming into force of Section
15 of the Constitution (Forty-fourth Amendment) Act, 1978.
Section 15 reads as follows:
“15. Amendment of Article 105.–In Article 105
of the Constitution, in clause (3), for the words ‘shall be
those of the House of Commons of the Parliament of the
United Kingdom, and of its Members and Committees, at
the commencement of this Constitution’, the words,
figures and brackets “shall be those of that House and of
its Members and Committees immediately before the
coming into force of Section 15 of the Constitution (Forty-
fourth Amendment) Act, 1978” shall be substituted.”
58
72. The privileges enjoyed by the House and its
Members and Committees immediately before the coming into
force of Section 15 of the Forty-fourth Amendment to the
Constitution were those enjoyed by the House of Commons in
UK at the commencement of the Constitution of India. This
was also the case with clause (3) of Article 194 which was
amended by Section 26 of the Forty-fourth Amendment to the
Constitution. The reference to the House of Commons was
accepted by the Constituent Assembly for two reasons. First,
Indian legislators did not enjoy any privilege prior to the
commencement of the Constitution and therefore a reference
to the Dominion Parliament would leave the House with
virtually no privileges. Second, it was not possible to make an
exhaustive list of privileges at the time nor was it preferable to
enlist such a long list as a Schedule to the Constitution.
[See reply of Sir Alladi Krishnaswami Ayyar and Dr B.R.
Ambedkar to the Constituent Assembly, CAD, Vol. VIIIth 19-5-
1949 draft Article 85 and Vol. Xth 16-10-1949 draft Article
85.]
73. Clause (3) allows Parliament to enact a law on its
privileges from time to time. It may be noted here that the
House of Commons in UK does not create new privileges. [ It
was agreed in 1704 that no House of Parliament shall have
power, by any vote or declaration, to create new privilege that
is not warranted by known laws and customs of Parliament.
The symbolic petition by the Speaker of the House of
Commons to the Crown claiming the “ancient and undoubted”
privileges of the House of Commons are therefore not to be
changed.] Its privileges are those which have been practised
by the House and have become ancient and undoubted.
74. Further, unlike the House of Commons in UK,
Parliament in India cannot claim power of its own
composition. The extent of privileges in India has to be
within the confines of the Constitution. Within this
scheme, the courts have jurisdiction to determine
whether the privilege claimed by the House of
Parliament or Legislature in fact exists and whether
they have been exercised correctly. In a steady line of
precedent, this Court has held that in the absence of
legislation on privileges, Parliament or Legislature may
only claim such privilege which belonged to the House
59
of Commons at the time of the commencement of the
Constitution and that the House is not the sole judge to
decide its own privilege.
… … …
76. In Powers, Privileges & Immunities of State
Legislatures, In re, Special Reference No. 1 of 1964 [Powers,
Privileges & Immunities of State Legislatures, In re, Special
Reference No. 1 of 1964, 1964 SCC OnLine SC 21] , a seven-
Judge Bench of this Court opined on the privileges of the State
Legislature upon a Presidential reference. The reference was in
the aftermath of the Speaker of the U.P. Legislative Assembly
directing the arrest and production of two Judges of the High
Court. The two Judges had interfered with a resolution to
administer reprimand to a person who had published a pamphlet
libelling one of the Members of the Assembly. Gajendragadkar,
C.J. speaking for the majority did not disagree with the decision
in M.S.M. Sharma [M.S.M. Sharma v. Sri Krishna Sinha, 1958
SCC OnLine SC 11 : AIR 1959 SC 395] which held that Article
105(3) and Article 194(3) would prevail over Article 19(1)(a) of
the Constitution. However, the Court held that Article 21 was to
prevail over Articles 105(3) and 194(3) in a conflict between the
two. The Court held that Parliament or Legislature is not the
sole judge of its privileges and the courts have the power to
enquire if a particular privilege claimed by the legislature in fact
existed or not, by consulting the privileges of the Commons. The
determination of privileges, the Court held, and whether they
conform to the parameters of the Constitution is a question that
must be answered by the courts. This Court opined that :
(Special Reference No. 1 of 1964 case [Powers, Privileges &
Immunities of State Legislatures, In re, Special Reference No. 1
of 1964, 1964 SCC OnLine SC 21] , SCC OnLine SC paras 37 &
42)
“37. The next question which faces us arises
from the preliminary contention raised by Mr Seervai
that by his appearance before us on behalf of the
House, the House should not be taken to have
conceded to the Court the jurisdiction to construe
Article 194(3) so as to bind it. As we have already
indicated, his stand is that in the matter of privileges,
the House is the sole and exclusive Judge at all stages.
…
60
* * *
42. In coming to the conclusion that the content
of Article 194(3) must ultimately be determined by
courts and not by the legislatures, we are not
unmindful of the grandeur and majesty of the task
which has been assigned to the legislatures under the
Constitution. Speaking broadly, all the legislative
chambers in our country today are playing a
significant role in the pursuit of the ideal of a Welfare
State which has been placed by the Constitution
before our country, and that naturally gives the
legislative chambers a high place in the making of
history today.”
(emphasis supplied)
77. The opinion in Special Reference No. 1 of
1964 [Powers, Privileges & Immunities of State
Legislatures, In re, Special Reference No. 1 of 1964,
1964 SCC OnLine SC 21] was further affirmed by
another seven-Judge Bench of this Court in State of
Karnataka v. Union of India [State of Karnataka v. Union
of India, (1977) 4 SCC 608, para 63.] which held that
whenever a question arises whether the House has
jurisdiction over a matter under its privileges, the
adjudication of such a claim is vested exclusively in the
courts. Relying on Special Reference No. 1 of
1964 [Powers, Privileges & Immunities of State
Legislatures, In re, Special Reference No. 1 of 1964,
1964 SCC OnLine SC 21] and State of Karnataka [State
of Karnataka v. Union of India, (1977) 4 SCC 608] a
Constitution Bench of this Court in Raja Ram Pal [Raja
Ram Pal v. Lok Sabha, (2007) 3 SCC 184] held that the
Court has the authority and jurisdiction to examine if a
privilege asserted by the House (or even a Member by
extension) in fact accrues under the Constitution.
Further, in Amarinder Singh [Amarinder Singh v. Punjab
Vidhan Sabha, (2010) 6 SCC 113 : (2010) 2 SCC (Cri)
1343] a Constitution Bench of this Court held that the
courts are empowered to scrutinise the exercise of
privileges by the House. [Amarinder Singh v. Punjab
Vidhan Sabha, (2010) 6 SCC 113, para 54 : (2010) 2
61
SCC (Cri) 1343] The interplay between fundamental
rights of citizens and the privileges of the Houses of
Parliament or Legislature is pending before a
Constitution Bench of this Court in N. Ravi v. Chennai
Legislative Assembly [N. Ravi v. Chennai Legislative
Assembly WPs (Cri) Nos. 206-210 of 2003, etc.]
78. Clause (4) of Article 105 extends the freedoms in
the above clauses to all persons who by virtue of the
Constitution have a right to speak in Parliament. The four
clauses in Articles 105 and 194 form a composite whole which
lend colour to each other and together form the corpus of the
powers, privileges and immunities of the Houses of Parliament
or Legislature, as the case may be, and of the Members and
Committees.
79. We have explored the trajectory of parliamentary
privileges, especially that of freedom of speech in the Indian
legislatures. It has been a timeless insistence of the legislators
that their freedom of speech to carry out their essential
legislative functions be protected and sanctified. Whereas the
drafters of our Constitution have expressly guaranteed the
freedom of speech in Parliament and Legislature, they left the
other privileges uncodified.
80. In a consistent line of precedent this Court has
held that — firstly, Parliament or the State Legislature is
not the sole judge of what privileges it enjoys and
secondly, Parliament or Legislature may only claim
privileges which are essential and necessary for the
functioning of the House. We have explored the first of
these limbs above. We shall now analyse the
jurisprudence on the existence, extent and exercise of
privileges by the House of Parliament, its Members and
Committees.
... ... ...
82. The privilege exercised by Members
individually is in turn qualified by its necessity, in that
the privilege must be such that “without which they
could not discharge their functions”. We shall elucidate
this limb later in the course of this judgment. These
privileges enjoyed by Members of the House individually
62
are a means to ensure and facilitate the effective
discharge of the collective functions of the House.
[Erskine May’s Treatise on the Law, Privileges,
Proceedings and Usage of Parliament (LexisNexis, 25th
Edn., 2019) 239.] It must therefore be noted that
whereas the privileges enjoyed by Members of the
House exceed those possessed by other bodies or
individuals, they are not absolute or unqualified. The
privilege of an individual Member only extends insofar
as it aids the House to function and without which the
House may not be able to carry out its functions
collectively.
… … …
87. The privileges enshrined under Article 105 and
Article 194 of the Constitution are of the widest amplitude but
to the extent that they serve the aims for which they have
been granted. The framers of the Constitution would not have
intended to grant to the legislatures those rights which may
not serve any purpose for the proper functioning of the House.
The privileges of the Members of the House individually bear a
functional relationship to the ability of the House to collectively
fulfil its functioning and vindicate its authority and dignity. In
other words, these freedoms are necessary to be in
furtherance of fertilising a deliberative, critical, and responsive
democracy. In State of Kerala v. K. Ajith [State of Kerala v. K.
Ajith, (2021) 17 SCC 318] , one of us (D.Y. Chandrachud, J.)
held that a Member of the Legislature, the Opposition
included, has a right to protest on the floor of the legislature.
However, the said right guaranteed under Article 105(1) of the
Constitution would not exclude the application of ordinary
criminal law against acts not in direct exercise of the duties of
the individual as a Member of the House. This Court held that
the Constitution recognises privileges and immunities to create
an environment in which Members of the House can perform
their functions and discharge their duties freely. These
privileges bear a functional relationship to the discharge of the
functions of a legislator. They are not a mark of status which
makes legislators stand on an unequal pedestal.
… … …
63
92. The evolution of parliamentary privileges as
well as the jurisprudence of this Court establish that
Members of the House or indeed the House itself cannot
claim privileges which are not essentially related to
their functioning. To give any privilege unconnected to
the functioning of Parliament or Legislature by
necessity is to create a class of citizens which enjoys
unchecked exemption from ordinary application of the
law. This was neither the intention of the Constitution
nor the goal of vesting Parliament and Legislature with
powers, privileges and immunities.
... ... ...
95. The necessity test for ascertaining
parliamentary privileges has struck deep roots in the
Indian context. We do not need to explore the well-
established jurisprudence on the necessity test in other
jurisdictions beyond the above exposition of Indian
jurisprudence on the subject at this juncture. The
evolution of parliamentary privileges in various
parliamentary jurisdictions has shown a consistent
pattern that when an issue involving privileges arises,
the test applied is whether the privilege claimed is
essential and necessary to the orderly functioning of the
House or its Committee. We may also note that the
burden of satisfying that a privilege exists and that it is
necessary for the House to collectively discharge its
function lies with the person or body claiming the
privilege. The Houses of Parliament or Legislatures, and
the Committees are not islands which act as enclaves
shielding those inside from the application of ordinary
laws. The lawmakers are subject to the same law that
the law-making body enacts for the people it governs
and claims to represent.
96. We therefore hold that the assertion of a privilege
by an individual Member of Parliament or Legislature would be
governed by a two-fold test. First, the privilege claimed has to
be tethered to the collective functioning of the House, and
second, its necessity must bear a functional relationship to the
discharge of the essential duties of a legislator.
… … …
64
101. In K. Ajith [State of Kerala v. K. Ajith, (2021)
17 SCC 318] a Member of the Kerala Legislative
Assembly was accused of climbing over the Speaker’s
dais and causing damage to property during the
presentation of the Budget by the Finance Minister of
the State. The question which arose before this Court
was whether the Member could be prosecuted before a
court of law for his conduct inside the House of the
Legislature. This Court speaking through one of us (D.Y.
Chandrachud, J.) after exploring the evolution of law in
this regard in UK observed that : (SCC p. 356, para 36)
“36. … it is evident that a person committing a
criminal offence within the precincts of the House does not
hold an absolute privilege. Instead, he would possess a
qualified privilege, and would receive the immunity only if
the action bears nexus to the effective participation of the
Member in the House.”
(emphasis in original)
... ... ...
104. The principle which emerges from the above cases
is that the privilege of the House, its Members and the
Committees is neither contingent merely on location nor
are they merely contingent on the act in question. A
speech made in Parliament or Legislature cannot be
subjected to any proceedings before any court.
However, other acts such as damaging property or
criminal acts may be subjected to prosecution despite
being within the precincts of the House. Clause (2) of
Article 105 grants immunity “in respect of anything”
said or any vote given. The extent of this immunity must
be tested on the anvil of the tests laid down above. The
ability of a Member to speak is essentially tethered to
the collective functioning of the House and is necessary
for the functioning of the House. A vote, which is an
extension of the speech, may itself neither be
questioned nor proceeded against in a court of law. The
phrase “in respect of” is significant to delineate the
ambit of the immunity granted under clause (2) of
Article 105.
… … …
65
193. The Rajya Sabha or the Council of States
performs an integral function in the working of our
democracy and the role played by the Rajya Sabha
constitutes a part of the basic structure of the
Constitution. Therefore, the role played by elected
Members of the State Legislative Assemblies in electing
Members of the Rajya Sabha under Article 80 is
significant and requires utmost protection to ensure
that the vote is exercised freely and without fear of
legal persecution. The free and fearless exercise of
franchise by elected Members of the Legislative
Assembly while electing Members of the Rajya Sabha is
undoubtedly necessary for the dignity and efficient
functioning of the State Legislative Assembly. Any other
interpretation belies the text of Article 194(2) and the
purpose of parliamentary privilege. Indeed, the
protection under Articles 105 and 194 has been
colloquially called a “parliamentary privilege” and not
“legislative privilege” for a reason. It cannot be
restricted to only law-making on the floor of the House
but extends to other powers and responsibilities of
elected Members, which take place in the Legislature or
Parliament, even when the House is not sitting.
(Emphasis supplied)
Upon the aforesaid reasoning, the Apex Court draws certain
conclusions. The conclusions drawn as found at paragraph 194 read
as follows:
".... .... ....
J. Conclusion
194. In the course of this judgment, while analysing the
reasoning of the majority and minority in P.V. Narasimha
Rao [P.V. Narasimha Rao v. CBI, (1998) 4 SCC 626 : 1998 SCC
(Cri) 1108] we have independently adjudicated on all the
66aspects of the controversy, namely, whether by virtue of Articles
105 and 194 of the Constitution a Member of Parliament or the
Legislative Assembly, as the case may be, can claim immunity
from prosecution on a charge of bribery in a criminal court. We
disagree with and overrule the judgment of the majority on this
aspect. Our conclusions are thus:
194.1. The doctrine of stare decisis is not an
inflexible rule of law. A larger Bench of this Court may
reconsider a previous decision in appropriate cases,
bearing in mind the tests which have been formulated in
the precedents of this Court. The judgment of the
majority in P.V. Narasimha Rao [P.V. Narasimha
Rao v. CBI, (1998) 4 SCC 626 : 1998 SCC (Cri) 1108] ,
which grants immunity from prosecution to a Member of
the Legislature who has allegedly engaged in bribery for
casting a vote or speaking has wide ramifications on
public interest, probity in public life and parliamentary
democracy. There is a grave danger of this Court allowing
an error to be perpetuated if the decision were not
reconsidered;
194.2. Unlike the House of Commons in UK, India does
not have “ancient and undoubted” privileges which were vested
after a struggle between Parliament and the King. Privileges in
pre-Independence India were governed by statute in the face of
a reluctant Colonial Government. The statutory privilege
transitioned to a constitutional privilege after the
commencement of the Constitution;
194.3. Whether a claim to privilege in a particular case
conforms to the parameters of the Constitution is amenable to
judicial review;
194.4. An individual Member of the Legislature
cannot assert a claim of privilege to seek immunity under
Articles 105 and 194 from prosecution on a charge of
bribery in connection with a vote or speech in the
legislature. Such a claim to immunity fails to fulfil the
two-fold test that the claim is tethered to the collective
functioning of the House and that it is necessary to the
discharge of the essential duties of a legislator;
67
194.5. Articles 105 and 194 of the Constitution seek
to sustain an environment in which debate and
deliberation can take place within the legislature. This
purpose is destroyed when a Member is induced to vote
or speak in a certain manner because of an act of bribery;
194.6. The expressions “anything” and “any” must
be read in the context of the accompanying expressions
in Articles 105(2) and 194(2). The words “in respect of”
means “arising out of” or “bearing a clear relation to”
and cannot be interpreted to mean anything which may
have even a remote connection with the speech or vote
given;
194.7. Bribery is not rendered immune under
Article 105(2) and the corresponding provision of Article
194 because 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. The
same principle applies to bribery in connection with a
speech in the House or a Committee;
194.8. Corruption and bribery by Members of the
Legislatures erode probity in public life;
194.9. The jurisdiction which is exercised by a competent
court to prosecute a criminal offence and the authority of the
House to take action for a breach of discipline in relation to the
acceptance of a bribe by a Member of the Legislature exist in
distinct spheres. The scope, purpose and consequences of the
court exercising jurisdiction in relation to a criminal offence and
the authority of the House to discipline its Members are
different;
194.10. The potential of misuse against individual
Members of the Legislature is neither enhanced nor
diminished by recognising the jurisdiction of the court to
prosecute a Member of the Legislature who is alleged to
have indulged in an act of bribery;
194.11. The offence of bribery is agnostic to the
performance of the agreed action and crystallises on the
exchange of illegal gratification. It does not matter whether the
68
vote is cast in the agreed direction or if the vote is cast at all.
The offence of bribery is complete at the point in time when the
legislator accepts the bribe; and
194.12. The interpretation which has been placed
on the issue in question in the judgment of the majority
in P.V. Narasimha Rao [P.V. Narasimha Rao v. CBI,
(1998) 4 SCC 626 : 1998 SCC (Cri) 1108] results in a
paradoxical outcome where a legislator is conferred with
immunity when they accept a bribe and follow through by
voting in the agreed direction. On the other hand, a
legislator who agrees to accept a bribe, but eventually
decides to vote independently will be prosecuted. Such an
interpretation is contrary to the text and purpose of
Articles 105 and 194.”
(Emphasis supplied)
The Apex Court considers entire spectrum of privilege obtaining to a
parliamentarian or a legislator in terms of Articles 105 and 194 of
the Constitution of India and concludes by drawing up 12
conclusions. Conclusion at paragraph 194.6 answers the
contentions of the learned senior counsel for the petitioner. The
Apex Court holds that expressions “anything” and “any”, must be
read in the context of the accompanying expressions in Articles
105(2) and 194(2). The words in respect of, the Apex Court holds
would mean, arising out of or bearing a clear relation to, and
cannot be interpreted to mean anything which may have even a
remote connection with the speech.
69
18. The Apex Court holds that unlike the House of Commons
in United Kingdom, India does not have ancient and undoubted
privileges; an individual member of the legislature cannot assert a
claim of privilege on a charge of bribery in connection with a vote or
speech; the expression ‘anything’ and ‘any’ as obtaining in Articles
105(2) and 194(2) must be read in the context of accompanying
expressions in the said articles. The words ‘in respect of’ and
‘arising out of’ are clear that they are in relation to the proceedings
of the House and cannot be interpreted to mean anything which
may have a remote connection with the speech; the potential of
misuse against individual members of the Legislature is neither
enhanced or diminished by prosecuting a member. The
unmistakable inference that can be drawn from the elucidations of
the Apex Court are that, judicial review of what transpires in the
parliament or the legislature in certain circumstances is available. A
member of the legislature cannot claim that he cannot be
prosecuted and if prosecuted it would bring down the dignity of the
House. The Apex Court was of the view that the offence of bribery
by a Legislator inside the house can be prosecuted. The reference
was thus answered.
70
19. On a blend of the elucidation of law by the Apex Court
and other High Courts as quoted hereinabove, the unmistakable
inference is that, judicial review is permissible even in cases where
the parliamentary privilege is projected, but not in all
circumstances, only on a case to case basis. The Apex Court has
clearly held that Article 194 of the Constitution does not bestow
absolute immunity for the actions done by Legislators, if those
actions have no nexus to the functioning of the House. Therefore,
the test laid down is, nexus to the functioning of the House or
nexus to the transaction of business of the House. Therefore, there
is no absolute immunity that the Legislators can claim nor absolute
bar of interference by the Constitutional Courts. Spoken word in
the Legislature by the Legislators would ordinarily come within the
immunity under Article 194(2) of the Constitution of India, but not
in certain exceptional circumstances. The subject issue is
answered accordingly. Whether the fulcrum of the lis comes
within the exceptional circumstance/s is what is required to be
noticed. Therefore, it is necessary to notice the genesis of the issue.
It is the act of the petitioner and the allegation of the act that
results in the registration of the complaint.
71
Issue No.(ii):
(ii) Whether the ingredients of offences are made out
in the case at hand?
THE COMPLAINT:
20. Since the entire issue triggered from the complaint, I
deem it appropriate to notice the complaint. The complaint reads as
follows:
"LAXMI R.HEBBALKAR Room No.301, 301A,
Minister for Women and Child 3rd Floor,
Development, Disabled VidhanaSoudha,
And Senior Citizens Empower- Bangalore-560 001.
Ment& Udupi District
In-charge Minister.
—————————————————————————–
No.WCD/1632/2024 Date: 19-12-2024
To
The Police Inspector,
Hirebagewadi Police Station,
Belagavi.
Sir,
Sub: Complaint regarding insult to Modesty of Woman,
Sexual Harassment and Outraging the Modesty of
Woman by C.T. Ravi, MLC.
—
I, the undersigned, am an elected member of the
Karnataka Legislative Assembly and a Cabinet Minister in the
current Karnataka Government headed by Sri Siddaramaiah ji.
72
To-day, I was attending my duties in the Legislative
Council on the 1st Floor of the Legislative Council Hall at Suvarna
Soudha, Belagavi.
At approximately 1 p.m. when the house had just
been adjourned due to protests by the opposition, Sri C.T.
Ravi, MLC, made derogatory remarks against our senior
Party leaders. I strongly objected to these baseless
allegations, demanding that he retract his statement.
During this verbal exchange, Sri C.T. Ravi who was
less than 10 meters away from me, made inappropriate
and obscene gestures and began shouting at me,
repeatedly calling me a “Prostitute”, which left me utterly
shocked. Despite my visible distress, he continued to
approach me, making lewd gestures and continuing to
call me a “Prostitute” more than a dozen times in the
presence of Sri M.Nagaraj, Sri DT Srinivas, Smt.
BilkisBano, Sri Ramoji Gowda among other Members of
the Legislative Council.
By his actions, Sri C.T. Ravi, MLC has clearly outraged my
modesty, committed sexual harassment and insulted me as a
woman, committing offences punishable under the relevant
provisions of the law: Bharatiya Nyaya Sanhitha: 75, 79 and
other relevant sections of law.
I kindly request that you register this complaint and
initiate appropriate legal action against him.
Regards,
Yours sincerely,
Sd/-
(Laxmi R.Hebbalkar)”
(Emphasis supplied)
The complaint is that on a heated verbal of words the petitioner
who was 10 meters away had made inappropriate and obscene
73gestures and began shouting at the complainant repeatedly calling
her a “prostitute”. Despite visible distress of the complainant, the
petitioner is said to have attacked making lewd gestures and
continuing to call her a ‘prostitute’ for more than ten times in the
presence of several Members. It is her allegation that the petitioner
has outraged her modesty and has committed sexual harassment
inside the House. Thus, the offences under the BNS spring.
THE OFFENCES:
21. The offences under Sections 75 and 79 of the BNS have
sprung. Sections 75 and 79 read as follows:
“75. Sexual harassment.–(1) A man committing any of
the following acts–
(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a
woman; or
(iv) making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause
(i) or clause (ii) or clause (iii) of sub-section (1) shall be
74punished with rigorous imprisonment for a term which may
extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause
(iv) of sub-section (1) shall be punished with imprisonment of
either description for a term which may extend to one year, or
with fine, or with both.
… … …
79. Word, gesture or act intended to insult modesty
of a woman.–Whoever, intending to insult the modesty
of any woman, utters any words, makes any sound or
gesture, or exhibits any object in any form, intending that
such word or sound shall be heard, or that such gesture
or object shall be seen, by such woman, or intrudes upon
the privacy of such woman, shall be punished with simple
imprisonment for a term which may extend to three
years, and also with fine.”
(Emphasis supplied)
Section 75 deals with sexual harassment. Clause (iv) of sub-section
(1) of Section 75 punishes the person who make sexually coloured
remarks of the offence of sexual harassment. The other offence is
under Section 79 which punishes a person who utters a word,
gesture or an act to insult the modesty of a woman. Since the
offences are the ones punishable under Sections 75 and 79 of BNS
which are Sections 354 and 509 of the IPC, it becomes germane to
notice interpretation of the Apex Court and other High Courts of the
said offences.
75
JUDICIAL INTERPRETATION OF THE ALLEGED OFFENCES:
22. The Apex Court in the case of RUPAN DEOL BAJAJ v.
KANWAR PAL SINGH GILL11 has held as follows:
“…. …. ….
13. Coming now to the moot point as to whether the
above allegations constitute any or all of the offences for which
the case was registered, we first turn to Sections 354 and 509
IPC, both of which relate to modesty of woman. These sections
read as under:
“354. Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that
he will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
* * *
509. Whoever, intending to insult the modesty
of any woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such
word or sound shall be heard, or that such gesture or
object shall be seen, by such woman, or intrudes
upon the privacy of such woman, shall be punished
with simple imprisonment for a term which may
extend to one year, or with fine, or with both.”
14. Since the word ‘modesty’ has not been defined
in the Penal Code, 1860 we may profitably look into its
dictionary meaning. According to Shorter Oxford English
Dictionary (3rd Edn.) modesty is the quality of being
modest and in relation to woman means “womanly
propriety of behaviour; scrupulous chastity of thought,
speech and conduct”. The word ‘modest’ in relation to
woman is defined in the above dictionary as “decorous
in manner and conduct; not forward or lewd;
shamefast”. Webster’s Third New International
Dictionary of the English Language defines modesty as
11
(1995)6 SCC 194
76
“freedom from coarseness, indelicacy or indecency; a
regard for propriety in dress, speech or conduct”. In
the Oxford English Dictionary (1933 Edn.) the meaning
of the word ‘modesty’ is given as “womanly propriety of
behaviour; scrupulous chastity of thought, speech and
conduct (in man or woman); reserve or sense of shame
proceeding from instinctive aversion to impure or
coarse suggestions”.
15. In State of Punjab v. Major Singh [AIR 1967
SC 63: 1967 Cri LJ 1: 1966 Supp SCR 286] a question
arose whether a female child of seven and a half months
could be said to be possessed of ‘modesty’ which could
be outraged. In answering the above question
Mudholkar, J., who along with Bachawat, J. spoke for
the majority, held that when any act done to or in the
presence of a woman is clearly suggestive of sex
according to the common notions of mankind that must
fall within the mischief of Section 354 IPC. Needless to
say, the “common notions of mankind” referred to by
the learned Judge have to be gauged by contemporary
societal standards. The other learned Judge (Bachawat,
J.) observed that the essence of a woman’s modesty is
her sex and from her very birth she possesses the
modesty which is the attribute of her sex. From the
above dictionary meaning of ‘modesty’ and the
interpretation given to that word by this Court in Major
Singh case [AIR 1967 SC 63: 1967 Cri LJ 1 : 1966 Supp
SCR 286] it appears to us that the ultimate test for
ascertaining whether modesty has been outraged is the
action of the offender such as could be perceived as one
which is capable of shocking the sense of decency of a
woman. When the above test is applied in the present
case, keeping in view the total fact situation, it cannot
but be held that the alleged act of Mr Gill in slapping Mrs
Bajaj on her posterior amounted to “outraging of her
modesty” for it was not only an affront to the normal
sense of feminine decency but also an affront to the
dignity of the lady — “sexual overtones” or not,
notwithstanding.”
(Emphasis supplied)
77
The Apex Court holds modesty is the quality of being modest and in
relation to woman means womanly propriety of behaviour.
Womanly propriety of behaviour would include scrupulous chastity
of thought, speech and conduct. The Apex Court, in a later
judgment, in the case of RAJU PANDURANG MAHALE v. STATE
OF MAHARASHTRA12 has held as follows:
“…. …. ….
12. What constitutes an outrage to female modesty is
nowhere defined. The essence of a woman’s modesty is her sex.
The culpable intention of the accused is the crux of the matter.
The reaction of the woman is very relevant, but its absence is
not always decisive. Modesty in this section is an attribute
associated with female human beings as a class. It is a
virtue which attaches to a female owing to her sex. The
act of pulling a woman, removing her saree, coupled with
a request for sexual intercourse, is such as would be an
outrage to the modesty of a woman; and knowledge, that
modesty is likely to be outraged, is sufficient to
constitute the offence without any deliberate intention
having such outrage alone for its object. As indicated
above, the word “modesty” is not defined in IPC.
The Shorter Oxford Dictionary (3rd Edn.) defines the word
“modesty” in relation to a woman as follows:
“Decorous in manner and conduct; not forward or
lewd; Shamefast; Scrupulously chaste.”
13. Modesty is defined as the quality of being
modest; and in relation to a woman, “womanly propriety
of behaviour; scrupulous chastity of thought, speech and
conduct”. It is the reserve or sense of shame proceeding
12
(2004) 4 SCC 371
78
from instinctive aversion to impure or coarse
suggestions. As observed by Justice Patteson in R. v. James
Lloyd [(1836) 7 C&P 317 : 173 ER 141] :
In order to find the accused guilty of an assault
with intent to commit a rape, court must be satisfied that
the accused, when he laid hold of the prosecutrix, not
only desired to gratify his passions upon her person but
that he intended to do so at all events, and
notwithstanding any resistance on her part.
The point of distinction between an offence of attempt to
commit rape and to commit indecent assault is that there should
be some action on the part of the accused which would show
that he was just going to have sexual connection with her.
14.Webster’s Third New International Dictionary of the
English language defines modesty as “freedom from coarseness,
indelicacy or indecency: a regard for propriety in dress, speech
or conduct”. In the Oxford English Dictionary (1933 Edn.), the
meaning of the word “modesty” is given as “womanly propriety
of behaviour; scrupulous chastity of thought, speech and
conduct (in man or woman); reserve or sense of shame
proceeding from instinctive aversion to impure or coarse
suggestions”.
(Emphasis supplied)
The Apex Court holds that modesty is the quality of being modest
and womanly propriety of behaviour. If modesty is likely to be
outraged, it is sufficient to constitute an offence.
79
23. The High Court of Kerala in the case of ABHIJEET J.K v.
STATE OF KERALA13 holds as follows:
“…. …. ….
8. Section 509 of the Penal Code, 1860 provides
that, whoever, intending to insult the modesty of any
woman, utters any word, makes any sound or gesture, or
exhibits any object, intending that such word or sound
shall be heard, or that such gesture or object shall be
seen, by such woman, or intrudes upon the privacy of
such woman, shall be punished with simple imprisonment
for a term which may extend to three years, and also with
fine.
9. Utterance of any word or making of any sound or
gesture by a person, intending to insult the modesty of a
woman, attracts the offence punishable under Section
509 I.P.C, if such act was made intending that such word
or sound shall be heard, or that such gesture shall be
seen by such woman.
10. There is distinction between an act of merely
insulting a woman and an act of insulting the modesty of
a woman. In order to attract Section 509 I.P.C, merely
insulting a woman is not sufficient. Insult to the modesty
of a woman is an essential ingredient of an offence
punishable under Section 509 I.P.C. The crux of the
offence is the intention to insult the modesty of a woman.
11. Section 509 I.P.C. criminalises a ‘word, gesture or act
intended to insult the modesty of a woman’ and in order to
establish this offence it is necessary to show that the modesty
of a particular woman or a readily identifiable group of women
has been insulted by a spoken word, gesture or physical act
(See Khushboo v. Kanniammal: (2010) 5 SCC 600: AIR 2010 SC
3196).
13
2020 SCC OnLine Ker.703
80
12. The essence of a woman’s modesty is her sex.
The modesty of an adult female is writ large on her body.
Young or old, intelligent or imbecile, awake or sleeping,
the woman possesses modesty (See State of
Punjab v. Major Singh : AIR 1967 SC 63). Modesty is a
virtue which attaches to a female owing to her sex
(See Raju Pandurang Mahale v. State of
Maharashtra : (2004) 4 SCC 371 : AIR 2004 SC 1677).
13. If the word uttered or the gesture made could
be perceived as one which is capable of shocking the
sense of decency of a woman, then it can be found that it
is an act of insult to the modesty of the woman
(See RupanDeol Bajaj v. K.P.S. Gill : (1995) 6 SCC
194 : AIR 1996 SC 309).
… … …
22. Section 354 I.P.C. prescribes the punishment for
outraging the modesty of a woman by an act of assault or use of
criminal force. Inspite of the existence of the aforesaid provision
in the Penal Code, 1860, the legislature has incorporated
Section 509 in it, making punishable even a verbal attack of
insulting the modesty of a woman. The intention of the
legislature is evident. Commission of acts, which may not
necessarily involve even any physical advances or
assault, is also made punishable under Section 509 I.P.C.
Originally, the punishment prescribed for the offence
under Section 509 I.P.C. was simple imprisonment for a
term which may extend to one year or fine or both. The
punishment provided for the offence now stands
enhanced to simple imprisonment for a term which may
extend to three years with fine. The intention of the
legislature is also evident from the enhancement of the
punishment prescribed for the offence.”
(Emphasis supplied)
The learned single judge of the High Court of Kerala follows the
judgments of the Apex Courts quoted hereinabove and considers
that for an offence under Section 509 of the IPC, it is necessary to
81
show that the modesty of a particular woman or a readily
identifiable group of women has been insulted by a spoken word,
gesture or a physical act. The Court holds that if the word uttered
or a gesture made could be perceived as one, which is capable of
shocking the sense of decency of a woman, it would become the
ingredient of Section 509 of the IPC.
24. The High Court of Delhi in the case of VARUN BHATIA v.
STATE14 while considering the offence under Section 509 of the IPC
and its interplay with Section 354 of the IPC has held as follows:
“…. …. ….
15. Thus, it is imperative to determine whether, in
the current context, there exists a prima facie case
against the accused. The central allegation put forth by
the prosecution revolves around the accused’s use of the
term ‘GandiAurat’, and the contention is that this
utterance of the said word has amounted to an outrage of
the complainant’s modesty, under Section 509 of IPC.
Therefore, it becomes crucial to delve into the scope and
essence of the term ‘Modesty’ within the legal
framework, and to assess whether, on an initial review,
the use of these specific words can be deemed as
having prima facie transgressed the boundaries of the
complainant’s modesty. This examination would lay the
foundation for determining the validity of the charges and
the need for further legal proceedings in the matter.
14
2023 SCC OnLine Del. 5288
82
LAW OF SECTION 509 OF Penal Code, 1860
i. Section 509 of IPC
16. Since the charge in the present case has been framed
under Section 509 of IPC, it shall be imperative to refer to the
same, which reads as under:
“…509. Word, gesture or act intended to
insult the modesty of a woman.–Whoever,
intending to insult the modesty of any woman,
utters any word, makes any sound or gesture, or
exhibits any object, intending that such word or
sound shall be heard, or that such gesture or
object shall be seen, by such woman, or intrudes
upon the privacy of such woman, shall be
punished with simple imprisonment for a term
which may extend to one year, or with fine, or
with both…”
ii. Essential Ingredients of Section 509 of IPC
17. The essential ingredients of Section 509 IPC are as
under:
i. Intention to insult the modesty of a woman;
ii. The insult must be caused by:
a. uttering any words, or making any sound or
gesture, or exhibiting any object intending
that such word or sound shall be heard or that
the gesture or object shall be seen by such
woman, orb. intruding upon the privacy of such a woman.
18. Section 509 of the Penal Code, 1860 delineates two
pivotal components for establishing an offence : firstly, the
presence of an intention to insult the modesty of a woman, and
secondly, the manner in which this insult is perpetrated. The
cornerstone of this provision is the requirement of intent, where
the accused must possess a deliberate intention to affront or
83
insult the modesty of a woman. This intent sets apart ordinary
speech or actions from those that amount to an offence under
Section 509. The insult itself can take place through two distinct
modes. It can occur verbally or visually by uttering specific
words, making sounds, or displaying gestures or objects, with
the deliberate intent that these words, sounds, gestures, or
objects are heard or seen by the woman involved. Alternatively,
insult can manifest as an intrusion upon the woman’s privacy,
meaning thereby encroaching upon her personal space or
violating her sense of privacy intentionally, in a manner that
affronts her modesty. In essence, Section 509 emphasizes that
intent is the linchpin of this offence, necessitating a deliberate
affront to a woman’s modesty for the Section to be invoked.
iii. Difference between Section 354 and Section 509 of IPC
19. While discussing the jurisprudence of outraging the
modesty of a woman, the discussion cannot be complete without
discussing the difference between Section 354 IPC and
Section 509 IPC. Section 354 IPC and Section 509 IPC both use
the word ‘Outraging the modesty of a woman’ though by
different means.
20. Section 354 IPC reads as under:
“…354. Assault or criminal force to woman with
intent to outrage her modesty.–Whoever assaults or
uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine, or with both…”
21. In essence, both Section 354 and Section 509of Penal
Code, 1860 addressed the issue of outraging the modesty of a
woman, but they do so in distinct ways. Section 354 primarily
deals with cases involving physical assault or the use of force
against a woman, wherein her modesty is violated through
actions that involve direct contact or physical harm. On the
other hand, Section 509 concerns instances where words,
gestures, or acts are employed with the deliberate intent to
insult or offend a woman’s modesty, without necessarily
84
involving physical force. This distinction in legal provisions
reflects the recognition that outraging a woman’s modesty can
take various forms, both physical and verbal, and the law seeks
to address each of these forms distinctly to ensure justice and
protection for women in different situations. In the present case,
the complainant has raised allegations solely under
Section 509 of the Penal Code, 1860 against the accused.
... ... ...
THE TEST OF OUTRAGING MODESTY OF A WOMEN
i. Defining 'Modesty'
30. According to Shorter Oxford English
Dictionary (Third Edition) modesty is the quality of being
modest and in relation to woman means “womanly
propriety of behaviour; scrupulous chastity of thought,
speech and conduct”. The word ‘modest’ in relation to
woman is defined in the above dictionary as “decorous in
manner and conduct; not forward or lewd;
shamefast”. Webster’s Third New International
Dictionary of the English language defines modesty as
“freedom from coarseness, indelicacy or indecency; a
regard for propriety in dress, speech or conduct”. In
the Oxford English Dictionary (1933 Ed) the meaning of
the word ‘modesty’ is given as “womanly propriety of
behaviour; scrupulous chastity of thought, speech and
conduct (in man or woman); reserve or sense of shame
proceeding from instinctive aversion to impure or coarse
suggestions”. Cambridge Dictionary defines modesty as
‘Correct or socially acceptable behavior and clothes,
representing traditional cultural values”.
31. In view of the above, “Modesty”, as defined by
various dictionaries, encompasses a range of meanings
that converge on a common theme of propriety, chastity,
and adherence to societal norms. In the context of
women, modesty signifies a commitment to, scrupulous
chastity in thought, speech, and conduct, and a sense of
shame-fastness that arises from an aversion to impure or
coarse suggestions. It also implies freedom from
85
coarseness or indecency, emphasizing the importance of
adhering to accepted social norms in one’s actions and
expressions. This multifaceted concept underscores the
significance of maintaining moral purity, integrity, and
decorum in one’s conduct, reflecting a sense of reserve
and propriety that transcends mere modesty and extends
to broader cultural and societal expectations.
ii. Defining ‘Outrage’
32. The Shorter Oxford English Dictionary (Third Edition)
defines ‘outrage’ as a strong feeling of shock and anger; an act
or event that is violent, cruel or very wrong that shocks people
or makes them very angry. Cambridge Dictionary defines
outrage as ‘(an unfair action or statement) to cause someone to
feel very angry, shocked, or upset’.
33. ‘Outrage’ is a term that encapsulates the profound
emotions of shock and anger in response to actions, events, or
statements perceived as morally reprehensible, cruel, unjust, or
deeply offensive. It signifies an intense and visceral reaction,
often triggered by the violation of accepted societal norms or
standards. In essence, outrage is a powerful emotional response
that highlights the gravity of perceived wrongdoing, aiming to
draw attention to and condemn actions or events that shock
people’s conscience and evoke a sense of moral indignation.
iii. Defining Outraging Modesty of a Women
34. ‘Modesty of women’ refers to a culturally and
socially defined set of behaviors, manners, and dress
codes that are intended to preserve a woman’s sense of
privacy, decency, and dignity. It encompasses the idea of
maintaining a respectful and reserved demeanor,
particularly in terms of appearance to safeguard a
woman’s personal space, honor, and reputation. The
concept of modesty can vary across different cultures and
societies and is often associated with norms related to
interactions, and conduct in public and private settings. It
is rooted in the belief that certain behaviors and
appearances are deemed appropriate to protect a
woman’s honor and prevent any potential harm or
exploitation.
86
35. The intent of the legislature is to safeguard a
woman’s integrity and ensuring that she is not subjected to any
form of unwarranted or inappropriate behavior that could
undermine her self-respect or social standing.
36. Modesty often intersects with traditional gender roles
and societal expectations. In many cultures, women are held to
higher standards of modesty than men, with emphasis placed on
covering the body and maintaining a demure demeanor. This
can sometimes lead to gender inequality and restrict women’s
freedoms.
37. Crucially, the interpretation of what constitutes an
outrage to modesty can be context-specific, as it depends on
societal norms, cultural values, and individual perspectives.
What may be considered an affront to one person’s sense of
modesty might not be the same for another. Therefore, legal
systems often rely on objective standards to evaluate these
violations, taking into account the reasonable person’s reaction
in a given situation.
38. In essence, “outraging the modesty of a
woman” transcends a mere definition; it is an
embodiment of the collective commitment to respect,
equality, and the preservation of individual rights. It
underscores the importance of upholding the dignity and
self-worth of every woman, acknowledging the unique
and multifaceted nature of this concept in different
cultural and societal contexts. Ultimately, it reinforces
the imperative to protect and empower women, ensuring
their right to live free from insults, affronts, or abuses to
their feminine sense of propriety and decorum.
iv. Defining Intention in context of Section 509 IPC
39. Outraging modesty has been defined as
circumstances involving indecent conduct on the part of the
accused, wherein the accused’s behaviour or actions are such
that they deliberately and egregiously offend or insult the
modesty, dignity, and self-respect of a woman.
40. Indeed, an essential aspect of outraging the
modesty of a woman is the presence of indecent
87
intention. In legal terms, it’s not merely the act itself but
the intent behind it that matters. To qualify as an outrage
to modesty, the accused must have a deliberate and
indecent intention in their actions or behaviour. This
means that their conduct is not accidental or innocent but
is driven by a specific purpose to offend or insult the
modesty, dignity, or self-respect of a woman. The
requirement of indecent intention serves as a crucial
element in distinguishing between regular interactions
and actions that constitute an offence against a woman’s
modesty, emphasizing the need to prove both the act and
the intent in such cases.
41. In the assessment of an accused individual’s
intention to outrage the modesty of a woman, a
comprehensive examination of numerous factors
becomes essential. This evaluation extends beyond the
mere act itself, delving into the accused’s intent and the
context in which the action occurred. Factors such as the
nature of the act, the choice of words or gestures, the
surrounding circumstances, the accused’s background,
and the complainant ‘s perspective are all meticulously
considered. Furthermore, cultural and social norms, as
well as any independent evidence, play pivotal roles in
this determination. By scrutinizing these multifaceted
elements, the legal system strives to discern whether the
accused possessed the indecent intention to insult,
offend, or abuse the woman’s modesty. Such a thorough
approach recognizes the complexity of human behaviour
and ensures that justice is met with a comprehensive
understanding of the unique circumstances of each case.
42. Indeed, a delicate balance must be struck when
construing the intention of the accused in cases of
outraging the modesty of a woman. It is not appropriate
to automatically presume the existence of this intention
without thoroughly considering the multifaceted
elements mentioned above. Precise and context-specific
assessments are required to ensure that justice is both
fair and accurate. This balanced approach acknowledges
the need to protect the rights and dignity of women while
also recognizing the complexities and nuances of human
88
behaviour, as well as the importance of considering the
specific circumstances and background of each case.”
(Emphasis supplied)
The High Court of Delhi in elaboration considers whether the words
“GandiAurat” uttered against a woman in front of entire staff would
amount to outraging the modesty of a woman as obtaining under
Section 509 of the IPC or otherwise.
25. The High Court of Bombay in the case of JOSEPH PAUL
DE SOUSA v. STATE15 has held as follows:
“…. …. ….
8.7 As enunciated in the above cases, there is
absolutely no quarrel with the principle that the
interpretation of a provision is related to the intent of the
legislature. In fact, the mischief sought to be addressed
by Section 509 of the I.P.C. is an insult or affront to the
dignity of a woman which outrages her modesty. When
the manner in which this mischief plays up arises for
determination, it is the bounden duty of the Court to
adopt a purposive approach of interpretation; i.e., which
gives rational meaning to the language of the legislature.
Advent of modern technology has opened-up wide
spectrum of means to communicate an insult. When an e-
mail containing objectionable content likely to outrage
the modesty of a woman stares at her, can we permit the
perpetrator to walk away undaunted, simply because the
insult is written and not spoken. Interpretation must
correspond to societal transformations and re-evaluate
legal principles to ensure fairness, justice, and equity.
15
2024 SCC OnLine Bom.2719
89
8.8 As society evolves, so must the interpretation of the
law to address emerging challenges and promote social
progress. The law is a dynamic entity capable of reflecting and
adapting to a society’s changing needs and values. As Lord
Denning cautioned in the case of Seaford Court Estate that, ‘the
English language is not an instrument of mathematical
precision’. It must be understood to support legislative intent.
The intention of the legislature is to deter action of the offender
as could be perceived as one which can shock the sense of
decency of a woman. The manner in which the offender does
this is not restricted to oral abuse or gesture alone. The word
‘utterances’ include statements, speeches, exclamations, notes
and all of it can well be in a text form relayed physically or by
electronic medium.
8.9 In the case of R v. Ireland it is held that, the rule of
strict construction does not also prevent the Court in
interpreting a statute according to its current meaning and
applying the language to cover developments in science and
technology not known at the time of passing of the statute.
Thus psychiatric injury caused by silent telephone calls was held
to amounts to ‘assault’ and ‘bodily harm’ under Sections 20 &
47 of the Offense Against Persons Act, 1861.
8.10 Closer home, the State of Chhattisgarh by an
amendment to Section 509 of the I.P.C. has introduced a new
category of offense of outraging the modesty of a woman.
Section 509-B of the I.P.C. is inserted to include harassment of
a woman by ‘means of telecommunication device or other
electronic mode including internet’ also made punishable.
Although there is no such amendment made in the State of
Maharashtra, penal statutes are known to be interpreted having
regard to the subject matter of the offense and the object of law
it seeks to achieve. The purpose of law is not to allow the
offender to sneak out of the meshes of law. Criminal
jurisprudence does not say so.
8.11 According to us the word ‘utterance’ must not
be given a pedantic interpretation. If such narrow
interpretation is accepted, many a men will walk away,
unhindered by consequences merely by shooting e-mails
or using social media platforms to malign and insult a
woman and outrage her modesty. Modern technology
90
makes such manner of perpetrating the offense verily
real. Similarly, to ‘exhibit’ an object is not restricted to
actually and physically exhibiting it by the accused
himself, but the exhibition can be by way of an agency of
a device such as a personal computer, mobile phone or
any other electronic device.
8.12 In a decision of this Court in the case
of Emperor v. Tarak Das Gupta (supra), both the learned Judges
separately opined that, a letter sent by post is included in the
act of ‘exhibiting an object’ even if it be not by the accused
himself but by the agency of a post office. Fawcett, J.
(Madgavkar, J. concurred) held as under:
“The only point of substance that has been
urged by Mr. Sopher for the petitioner is that the case
does not come under the words “exhibits any object”
contained in section 509, which is the part of the
section on which the conviction rests. No doubt the
word “exhibit” does ordinarily express the idea of
actually showing a thing to a person. On the other
hand, such showing need not be immediate. It was
admitted by Mr. Sopher that “exhibit” was practically
equivalent to the word “expose”, and a thing can be
exhibited or exposed to a person, although at first it
may be wrapped in something which prevents that
person from actually seeing the object contained in
the wrapper.
xxx
…In the present case, the accused did not
himself go to the complainant and show her the letter,
but he employed the agency of the Post Office for the
purpose of securing its receipt by her. The natural
result of his posting the letter would be its receipt by
the addressee and her opening the envelope and
seeing its contents. In my opinion, the fact that the
accused used these means for letting the complainant
see the letter, instead of himself taking it and showing
it to her is immaterial. The maxim qui facit per alium
per se is one entirely applicable to the present
circumstances; and the mere fact that the letter was
in a closed envelope before it reached the
complainant, and that the accused did not himself tear
91
open that envelope but that this was done by the
complainant, does not prevent it being a case falling
within the meaning of the words “exhibits any
object”.”
8.13 In the case of M. M. Harries v. State of
Kerala (supra) the Learned Single Judge, while holding that a
bunch of anonymous letters received by a woman containing
offensive and foul words, outraging her modesty falls within the
scope and ambit of the offense under Section 509 of the I.P.C.,
observed as follows:
“8. …But, what does the expression ‘gesture’
actually mean? Lord Denning, an English Judge
cautioned in Seaford Court Estates’s
case (vide [1949] 2 All ER 155) that ‘the English
language is not an instrument of mathematical
precision’. To an Indian Judge, English is even more
intrinsic being a foreign language. So, to understand
the real meaning of an English word, I shall safely
depend upon the dictionary first.
9. A reference to the dictionary is inevitable in
this case because the word ‘gesture’ not defined
under the Penal Code, 1860. The meaning of the
word ‘gesture’ as per Concise Oxford
Dictionary,eighth edition is, “a significant movement
of a limb or the body; the use of such movements
esp. to convey feeling or as a rhetorical device; an
act to evoke a response or convey intention”. As
per Collins Cobuild ‘English Dictionary for advanced
learners’ third edition, ‘gesture’ is “something that
you say or do in order to express your attitude or
intentions, often something that you know will not
have much effect”. As per Law Lexicon, the word
‘gesture’ means “a posture or movement of the
body; an action expressive of the sentiment or
passion of intended to show inclination or
disposition”.
10. It is thus clear from the above discussion
that the word ‘gesture’ refers not merely to body
signs. Though the word ‘gesture’ is ordinarily used to
92
mean movement of the limbs or body to convey a
person’s feelings, it can also connote an act done by
a person to convey his intentions. According to
dictionary meaning, an act done by a person to
express his attitude or intentions also is a ‘gesture’.
A person can express his attitude or convey his
intentions in a number of ways. For example, by
speaking, giving, looking, writing etc., etc. In that
sense of the word, a person can make a gesture by
doing an act without involving any body signs.
xxx
13. But the question is whether the
interpretation of the expression ‘making gesture’
referred to in Section 509 I.P.C., going by the mere
dictionary-meaning will in any way be in conflict with
the intention of the legislature or whether it will be in
consonance with the same. While answering this
question, I shall bear in mind, the cardinal principles
which are to be followed in interpreting a word or
expression in a statute. As observed in Chief Justice
of A.P. v. L.V.A. Dixitulu, (1979) 2 SCC 34 “the
primary principle of interpretation is that a
constitutional or statutory provision should be
construed ‘according to the intent of they that made
it'(Coke). Normally, such intent is gathered from the
language of the provision”.
xxx
18. Later, legislature found that a woman
must be protected not only from physical
aggressions made in the course of outraging her
modesty, but she should also be shielded from
various other acts which do not involve even a touch.
Legislature was quite aware that a woman’s modesty
can be insulted or outraged in various ways. A mere
word, a wink, a touch or even a look would suffice to
insult the modesty of a Woman. Physical advances
may not be necessary in all cases. Everything
depends on the intention of the mischief-maker and
the manner in which he conveys his intentions. It is
evident that legislature intended that any aggression
into a woman’s modesty whether by any word, deed,
touch or look need be curbed and deterred.
93
19. That is why even a verbal attack on a
woman, a gesture and other acts stated in
Section 509 I.P.C. were brought under the said
Section. It is clear from a reading of
Section 509 I.P.C. that by introducing the said
provision, legislature intended that any sort of
aggression into a woman’s modesty whether by any
word, deed or act should be deterred, as evident
from the title to the Section itself. Thus, the acts
which are done intending to insult the modesty of a
woman which may not necessarily involve even any
physical advances are also brought within the sweep
of a separate provision viz., Section 509 I.P.C.
20. In such circumstances, can it be for a
moment presumed that the legislature intended that
a person who writes a letter to a woman with the
intention to insult her modesty should go
unpunished? If such a person, instead of uttering the
insulting words, puts in writing all what he
determines to utter against a woman and sends it to
her, intending to insult her modesty, will any Court
be justified in holding that the legislature expected
such person to escape safely? was it the intention of
the legislature that such a culprit must go unhurt
only because he used his pen and not his tongue, to
insult the victim? After suffering all the trauma,
when a woman comes before Court with the best
proof for the assault or violence made on her
modesty by producing the letter, can the Court
refuse to look into the same on the ground that the
legislature never intended to bring cases involving
writings within the purview of Section 509 I.P.C.?
21. I find it extremely difficult to reach a
conclusion which will defeat the very object of
Section 509 I.P.C. There can be little doubt that the
legislature would not have intended that a person
who insults the modesty of a woman by his writings
must be kept out of the province of
Section 509 I.P.C. In a country like India, legislature
would not have ever intended that a person who
expresses his attitude or intention to insult modesty
94
of a woman by sending a letter should be absolved
from criminal liability. I am of view that the very
object of the provision will be defeated if a contrary
view is taken. Thus, while interpreting the meaning
of the relevant expression in Section 509 I.P.C. in
the light of the relevant rules of interpretation, I find
that ‘writing of letter’ to a woman, intending to insult
her modesty can be construed as ‘making a gesture’
under Section 509 I.P.C. I feel quite confident to
hold that Indian legislature’s intention will not be
contrary to what I have already concluded.”
8.14 This decision in the case of M. M. Haries v. State of
Kerala (supra) was tested before the Apex Court24. The Apex
Court upheld the decision only expunging the words ‘an offense’
under Section 509 of the I.P.C. will clearly be attracted’
appearing in paragraph no. 22 of the decision, at the behest of
the counsel appearing in the matter. Thus, the ratio of the
decision is upheld by the Supreme Court thereby ratifying the
overarching interpretation of the words ‘utterance’ and ‘gesture’
to remove the mischief in interpretation of the section.
… … …
8.17 The above stated judgment of the Apex Court
underscores that, the offense of outraging a woman’s modesty
hinges primarily on the intention or knowledge of the accused
rather than the woman’s actual reaction. It clarifies that the
legal requirement is that the act must be done “intending to
outrage or knowing it to be likely that he will thereby outrage
her modesty.” This places the emphasis on the accused’s intent
or awareness and the woman’s emotional response is not the
determining factor. The judgment acknowledges the variability
in women’s senses of modesty and the impracticality of proving
the accused’s knowledge of an individual woman’s standard of
modesty. Instead, it suggests that a reasonable person,
considering the circumstances and the woman’s characteristics,
should assess whether the accused intended to or knew that the
act was likely to outrage the woman’s modesty.
… … …
95
8.21 Thus, from the plain reading of the F.I.R. and
the subject e-mails, we are of the considered opinion that
the e-mails prima-facie intrude upon the privacy of the
Respondent No. 2 apart from being prone to outrage her
modesty.
… … …
8.26 Lastly, Mr. Jagtiani relied on the decision of
the Supreme Court in the case
of Khushboo v. Kanniammal (supra), where F.I.R.s were
lodged against a well-known actress. She expressed her
personal opinion to a magazine conducting a survey on
the subject of sexual habits of people residing in bigger
cities in India to the effect that increasing incidence of
premarital sex, especially in the context of live-in
relationships, called for societal acceptance of the same.
The Supreme Court observed that, offense under
Section 509 of the I.P.C. cannot be made out when the
Complainants’ grievance is with publication of what
Khushboo had stated in written form. Mr. Jagtiani laid
emphasis on this observation that, the Petitioner cannot
be held liable for ‘publication’ of the e-mails. This
argument is totally misconceived. The case was primarily
relating to the opinion expressed by Khushboo being
protected by Article 19(1)(a) of the Constitution of India.
The transmission by the Petitioner of the offensive e-
mails to her and other residents in the society
demonstrates clear intent of the Petitioner to insult the
Respondent No. 2. As we have already discussed
hereinabove that, no matter that the offensive material
was transmitted through electronic media, it would still
be ensconced in the interpretation of the words ‘utter’
and ‘gesture’ and ‘exhibit’. Alternatively, it intrudes on
the Respondent No. 2’s privacy.
… … …
9.1 Thus, we are of the view that a plain reading of
the F.I.R. and the e-mails mentioned therein prima-facie
discloses commission of the alleged offenses under
Section 509 of the I.P.C. & Section 67 of the I.T. Act only
and not under Sections 354 & 506(2) of the I.P.C.”
(Emphasis supplied)
96
The High Court of Bombay holds that on a plain reading of the
subject e-mails therein, was indicative of the fact that it intruded
upon the privacy of the complainant, apart from being prone to
outrage her modesty. The Bombay High Court holds that whether
words, spoken or written, would not make any difference.
UNDERMINING OF DIGNITY:
26. Respect and reputation of a woman in any civilized
society, shows basic civility of any such civilized society. No citizen,
in a civilized society, can afford to conceive the idea that he can
create a hollow in the honour of a woman. Such thinking is not
only lamentable, but deplorable. What forms the fulcrum of the
conundrum is certain words spoken on the floor of the house, not
by an ordinary citizen, but a responsible representative of the
people.
27. The issue in the lis is not physical acts of the petitioner,
but, verbal acts, which has the effect of outraging the modesty of a
woman. Section 79 is section 509 of the earlier regime, the IPC.
Section 509 was amended to make it punishable by Act 13 of 2013.
97
Therefore, it was inserted by Act 13 of 2013 to make any word or
gesture, which in effect insults the modesty of a woman to become
punishable. The alleged words that the petitioner has uttered is
calling the complainant a “prostitute”. This undoubtedly forms the
ingredient of both Sections 75 and 79 of the BNS. Whether such
word spoken is immune from any action. The unequivocal and
emphatic answer is, a “NO”. The alleged word spoken, if
spoken, or gesture made, if made, against a woman,
certainly outrages her modesty and it above all, can have no
nexus to the functioning of the House or no relation to a
transaction of the business of the House.
28. Factually, whether the petitioner has spoken or uttered
the word “prostitute” against the complainant or has used such
gestures which would demean her dignity or outrage her modesty is
till now a mystery, as it has to be investigated into. There is an
allegation and the complaint, registered with alacrity, is vivid that
words have been spoken. Therefore, these acts which eroded the
dignity of a woman or outraged her modesty cannot be protected
under the parasol of legislator’s privilege of anything done inside
98
the House. Immunity from any proceedings is, as observed by the
Apex Court in the case of K.AJITH supra, is not absolute. Criminal
acts inside the House are not immune from prosecution. In the case
at hand it is still under investigation. The subject issue is
answered accordingly.
29. The submission of the learned senior counsel for the
petitioner is that it would open a pandora’s box where every
legislator tomorrow will knock at the doors of constitutional Courts
alleging that fellow legislator has defamed him, insulted him or
otherwise, it is a submission that is noted only to be rejected,
owing to the facts obtaining in the case at hand, as it concerns the
dignity or modesty of a woman and allegedly calling a woman, a
fellow legislator, a ‘prostitute’, on the floor of the house, not only
prima facie outrages her modesty, but sullies the sanctity of the
House. In that light, I find no merit in the challenge to the
registration of crime in Crime No.186 of 2024. Calling a fellow
woman Legislator a prostitute, in the legislature has no nexus to
the functioning of the House nor has nexus to the transaction of
business in the House. No Nexus; No Privilege.
99
EPILOGUE:
In the grand tapestry or the labyrinth of democracy,
the privilege of legislative speech is a vital thread.
Therefore, it must be woven with the fibers of responsibility
and ethical conduct. The legislature is an exalted forum for
deliberation, not a forum for personal vilification. While this
Court will always remain the sentinel of legislative
autonomy, it cannot permit invocation of privilege to stymie
the imperatives of justice. The distinction sought to be
drawn between the spoken word and overt physical actions,
within the house is a tenuous one. The legislature is not a
sanctuary for defamation or gendered invective, rather an
institution where robust debate must be tempered with
decorum and respect. I find neither in the alleged acts of
the petitioner.
30. For the aforesaid reasons, the petition lacking in merit
should necessarily meet its rejection. It is accordingly rejected.
100
It is made clear the observations made in the course of the
order are only for the purpose of considering the case of the
petitioner under Section 482 of the Cr.P.C. The observations would
not influence or bind the investigating agency or the concerned
Court.
Interim order of any kind operating, shall stand dissolved.
SD/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ