New Delhi: An elected lawmaker can be criminally prosecuted for corruption in case he or she accepts bribes to act in a particular manner inside Parliament or a state assembly, a seven-judge bench of the Supreme Court ruled Monday.
Led by Chief Justice of India D.Y. Chandrachud, the bench overruled a 1998 verdict — called the P.V. Narasimha Rao case — that had granted immunity to Parliamentarians as well as legislators from prosecution for alleged corruption.
The top court had said at the time that lawmakers enjoyed protection under Article 105 of the Constitution when it came to matters involving their speeches or votes in Parliament. This ruling was by a bench of five judges.
However, the seven-judge bench said Monday that a Member of Parliament or MLA cannot claim immunity from prosecution on charges of bribery.
“The judgement in P.V. Narasimha Rao, which grants immunity from prosecution to a member of a legislature who has allegedly engaged in bribery for casting a vote or making a speech has wide ramifications on public life, and parliamentary democracy. This is a grave danger of this court allowing the errors to be perpetuated if the decision were not reconsidered,” the court said.
Tracing the history of constitutional privilege granted to lawmakers, the bench held it cannot be meant for those who accepted bribes for a vote or a speech inside Parliament. The seven judges unanimously opined that the principle laid out in the 1998 verdict failed to fulfil the two-fold test of first being “tethered to the collective functioning of the House, and second, being necessary for the discharge of the essential duties of a legislator”.
The Supreme Court had in September 2023 agreed to have a relook at the 1998 verdict and referred to a seven-judge bench the issue of whether lawmakers can claim immunity from criminal prosecution for taking bribes in connection with a speech or vote in Parliament or a state Assembly.
“As a Constitution bench, if we have a particular issue which deeply affects the morality of our polity, shouldn’t we take an opportunity to straighten the law?” the bench had observed while making the reference.
The issue that cropped up for reconsideration before the larger bench stemmed from the 1993 Jharkhand Mukti Morcha bribery scandal. In this case, MPs from the JMM and Ajit Singh’s Janata Dal faction were bribed to back then prime minister Narasimha Rao’s government and bail it out during a no-confidence vote in the Lok Sabha.
By a 3:2 judgement, the five-judge bench had then asserted that Article 105 extended immunity to MPs, safeguarding them from any court proceedings “related to, concerned, or had connection or nexus with anything said, or a vote given, by him in Parliament”.
The five-judge bench, which referred the matter to the larger bench observed in its order: “The purpose of Article 105(2) and Article 194(2) is to ensure that members of Parliament and of state legislatures are able to discharge duties in an atmosphere of freedom without fear of the consequences that may follow.”
However, it also noted: “The object clearly is not to set apart the members of the legislature as persons who wield higher privileges in terms of immunity from the application of the general criminal law of the land.”
In its decision Monday, the top court remarked that Articles 105 and 194 of the Constitution sought to “sustain an environment where debate and deliberation can take place within the legislature”.
“This purpose is destroyed when a member is inducted to vote or speak in a particular manner because of an act of bribery. Bribery is not rendered immune under Articles 105 or 194 because a member engaging in bribery indulges in a criminal act which is not essential for the function of casting a vote or giving a speech in the legislature. Corruption and bribery by members of the legislature erode probity in public life,” the bench said.
What led to the 1998 judgement
Two years after a Congress-led coalition formed its government at the Centre, the Communist Party of India (Marxist) leader Ajoy Mukopadhyay brought a vote of no confidence in the Monsoon Session of Parliament in 1993. Congress leader P.V. Narasimha Rao was then prime minister.
While the motion was defeated by a margin of 14 votes, three years later, the Central Bureau of Investigation (CBI) received a complaint alleging that some MPs belonging to the JMM and Ajit Singh’s faction of the Janata Dal were bribed to vote in favour of Rao.
Meanwhile, the MPs allegedly involved in the case demanded immunity from criminal prosecution, citing Article 105. They said their act of voting occurred inside Parliament and as per Article 105, no member of Parliament is “liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof”.
The 1998 ruling favoured the allegedly bribed MPs. The top court held the MPs who accepted the bribe and voted on the no-confidence motion would be immune from criminal prosecution as the alleged kickbacks were “in respect of” a parliamentary vote.
However, the court ruled that Ajit Singh, who was allegedly party to the conspiracy but didn’t cast a vote, wasn’t entitled to similar protection.
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Alleged bribe of JMM leader re-opened case
In 2012, Sita Soren, a leader of the JMM, was accused of accepting a bribe to vote for industrialist R.K. Agarwal, an independent candidate in a Rajya Sabha election.
Soren is the daughter-in-law of JMM chief and former Jharkhand chief minister Shibu Soren, who was one of those accused in the 1993 cash-for-votes case.
Although Sita Soren did not vote for Agarwal, a criminal prosecution was launched against her by the CBI for corruption. Her plea for immunity was rejected by the trial court as well as the Jharkhand High Court.
In its decision given in February 2014, the HC ruled that the principle under which Ajit Singh was denied parliamentary immunity would be applicable to Soren as well. The 1998 judgement did not give protection of immunity to Ajit Singh and, therefore, Sita Soren too was not entitled to the protection as she did not vote for Agarwal, the court held.
The high court also said the immunity granted to legislators under Article 194 did not apply to MLAs who accepted a bribe to vote a certain way, but then flipped and cast their ballot in another way.
This judgement was challenged before the Supreme Court in March 2014 and was placed before a three-judge bench. On 7 March 2019, the case was sent to a five-judge and then to a seven-judge bench.
Centre seeks reconsideration of 1998 verdict
During the hearing, the court had clarified that it would restrict its re-examination to only one question and that was whether immunity to MPs could be extended as far as offence of bribery was concerned.
Appearing for the central government, both Attorney General R. Venkataramani and Solicitor General Tushar Mehta submitted that bribery could never be a subject matter of immunity. The objection of Article 105 was meant for the “fearless” performance of legislative duty only, they argued.
According to the central government, the offence of bribery was complete when a bribe was given and accepted by a lawmaker and this offence could be tackled under the Prevention of Corruption Act. The Article 105 protection would not apply in such a scenario as the act of bribery was completed outside the House, the court was told.
(Edited by Tikli Basu)