New Delhi: Can lawmakers claim immunity from criminal prosecution for taking bribes in connection with a speech or vote in Parliament or a state assembly? This is exactly what the Supreme Court is now going to consider. Or rather, reconsider.
In 1998, a five-judge Constitution Bench of the Supreme Court ruled that parliamentarians were afforded such immunity under Article 105 of the Constitution.
The verdict pertained to the 1993 ‘JMM Bribery Scandal’, a case that involved allegations of several MPs from the Jharkhand Mukti Morcha (JMM) and Ajit Singh’s faction of the Janata Dal having been bribed to help bail out the Narasimha Rao government in the Lok Sabha.
In a 3:2 ruling, the Constitution Bench held that Article 105 “protects a member of Parliament 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”.
Twenty-five years later, a five-judge Constitution Bench comprising justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, and B.V. Nagarathna will consider whether the ruling needs to be reconsidered by a larger bench.
Here’s what the 1998 judgment said and why the court is now considering revisiting the ruling.
What happened in 1993 and what the court said
The 1991 general election threw up a hung Parliament, with the Congress (I) emerging as the single largest party. The Congress, with support from several regional parties, went on to form a government under P.V. Narasimha Rao.
In July 1993, Communist Party of India (Marxist) leader Ajoy Mukhopadhyay brought a vote of no-confidence in the monsoon session of the Parliament. The motion was eventually defeated by a margin of 14 votes.
However, in 1996, the Central Bureau of Investigation (CBI) received a complaint alleging that some MPs belonging to JMM and Ajit Singh’s faction of the Janata Dal were given bribes to vote for Rao’s government.
Meanwhile, the MPs allegedly involved in the case demanded immunity from criminal prosecution because their act of voting occurred inside Parliament.
Article 105 of the Constitution provides for the powers and privileges of the Houses of Parliament, their members and committees. Among other things, the provision says, “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”.
Article 194 affords the same immunity to MLAs.
In 1998, a five-judge bench of the Supreme Court ruled in favor of the MPs. In its 3:2 judgement, the court ruled that 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.
Why’s the case before SC again
Soren is the daughter-in-law of party 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 and the court took cognisance of offences under provisions of the Prevention of Corruption Act and Section 120B (Criminal Conspiracy) of the Indian Penal Code.
In February 2014, the Jharkhand High Court ruled that the principle under which Ajit Singh was denied parliamentary immunity would be applicable to Soren as well.
The court ruled that the immunity granted to legislators under Article 194 wouldn’t apply to MLAs who accept a bribe to vote a certain way but cast their ballot in another way.
“Thus, I’m of the view that the act of the petitioner of receiving money pursuant to the conspiracy and the agreement with R.K.Agarwal, will have no nexus with the vote on account of the fact that she did not cast vote in favor of the said R.K.Agarwal and, thereby, she will have no immunity as guaranteed under Sub-clause (2) of Article 194 of the Constitution of India,” the court said in its ruling.
The judgment was challenged before the Supreme Court in March 2014 and was placed before a three-judge bench.
On 7 March 2019, the bench referred the case to a larger bench, “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of substantial public importance.”
What’s happened so far
The case came up for hearing before the five-judge bench Tuesday when the Union government, as well as Sita Soren, submitted that the 1998 judgment was the correct position of law with regard to MPs and legislators.
Arguing for the Union government, Solicitor General Tushar Mehta called the 1998 verdict a “constitutionally correct” principle and urged the court to send the case back to a two- or three-judge bench to hear Sita’s appeal.
Arguing for Soren, senior advocate Raju Ramachandran contended that the Jharkhand High Court had incorrectly applied the 1998 judgment.
Since both the central government and Soren backed the 1998 verdict, the bench appointed senior advocate P.S. Patwalia and lawyer Gaurav Agrawal to assist it.
Posting the case for hearing on 6 December, the court said: “If we accept the majority verdict in the P.V. Narasimha Rao case, then the matter ends here. But if not, then it has to go to a larger bench”.
(Edited by Uttara Ramaswamy)