Mahua Moitra appears to be in far more trouble than she might have imagined. The big question on everyone’s mind in the backdrop of the sordid “cash for query” controversy in which the fiery MP from West Bengal finds herself embroiled in, is this – will she face criminal prosecution? In an opinion article published recently in these columns, it has been argued that she would enjoy absolute immunity under subclause (2) of Article 105 of the Constitution of India. However, a closer look at three Supreme Court judgments that deal directly with this issue make it abundantly clear that the Trinamool MP will most certainly face prosecution. And the cloak of constitutional immunity does not cover the act of asking questions for cash.
The no confidence case
In PV Narasimha Rao [(1998) 4 SCC 626], a five-judge bench of the Supreme Court dealt with the infamous “no confidence” case in the Lok Sabha against Rao’s minority government. The support of 14 members was crucial to defeat the motion. In the final tally, 251 members voted in support and 265 against. While these events transpired on a humid July 1993 afternoon, it was only after a few years that a member of the Jharkhand Mukti Morcha complained to the CBI that there had in fact been a conspiracy pursuant to which 10 members had voted against the motion in exchange for bribes. This triggered a prosecution against the alleged bribe takers, and cognizance was taken by the trial court in Delhi.
The case eventually reached the Supreme Court, where the parties argued that they were immune from prosecution in terms of Article 105(2) rendering them protected against penal provisions of the Prevention of Corruption Act, 1988. Although the Court, deciding 3-2, in favor of the petitioners, agreed that the parties were indeed immune from prosecution, it restricted such immunity to matters of voting and speeches, specifically.
While Mahua’s lawyers will try desperately to expand the scope of immunity available under Article 105(2), they will face a stumbling block. The judgment of the Supreme Court in Raja Ram Pal’s case [(2007) 3 SCC 184], where the Court in a 4-1 decision, dealt with three crucial issues.
First, it held that it possessed the jurisdiction to decide the scope of powers, privileges and immunities of the Legislatures and its Members. Second, it affirmed the power of the legislatures in India, in reference to Article 105, to be able to expel its own members. Third, it affirmed its own jurisdiction in being able to interfere in the exercise of the aforesaid powers and privileges conferred on Parliament. Particularly intriguing is the lone dissent of Justice Raveendran who specifically dealt with PV Narsimha Rao and indicated without any equivocation that immunity under Article 105(2) is restricted only to matters in respect of “a vote” and none other.
Besides, the facts in Rao’s case were entirely different, and it is an elementary principle of law that the ratio of a particular case applies to the facts of that case alone. In Raja Ram Pal, the Court not only upheld Parliament’s right to expel the 10 members who had taken bribes for asking questions but had also paved the way for their eventual prosecution which began in the year 2007.
Also read: Lok Sabha Ethics Committee looking into Mahua Moitra case — how it was formed & what are its powers
The definition of immunity
The last hurdle and it will perhaps be the most significant one for Mahua’s lawyers, is the recent judgment of the Supreme Court in Sita Soren’s case (2023 SCC OnLine SC 1217). The Supreme Court while referring the matter to a seven-judge bench, once again reaffirmed the principle that immunity attaches to a member of Parliament exclusively with regard to conduct concerning either a vote which has been given, or a speech which has been made. The key takeaway being that corrupt activities such as ‘taking bribes for asking questions’ have not been extended the cover of immunity. While relying on and upholding the ratio in PV Narsimha Rao, it was made clear that constitutional immunity will only attach to speeches and voting, and nothing else.
The members of the Constituent Assembly while debating the rationale behind the immunity imbedded in Article 105(2), envisaged an India where Members of the House would be able to not only speak or vote freely on any issue that concerned their constituents, but they also recognised the importance of being able to do so without fear or favor. Jagat Narain Lal, Member from Bihar, had the incredible prescience to foresee the dangers in expanding immunity beyond what is now the text of Article 105. He observed, “…If a member, for example wants to deliver a speech in the parliament, not for the purpose simply of making an honest speech, but for the purpose of maligning some body or some institution and he starts straightaway by delivering a speech and publishing the same in so many other papers outside, I should say, that is not an honest expression of opinion and that is not a bona fide expression of opinion either. Therefore, I would like honourable Members to confine the privileges which are given and the immunity which is sought to be given to members of parliament only to those two which are contained in clause (2).”
The irony in Mahua’s case is hard to miss. Her former friend has alleged that she abused her authority as MP to further the business interest of a particular group by attacking their direct rival. Conveniently, as is often the case in politics, she thought this to be the ideal bargain. Unfortunately, for Moitra, her plan failed. The prospect of being able to help her “dear friend” Darshan Hiranandani while attacking Prime Minister Narendra Modi to further her own political career might have seemed like a sweet deal. But destiny often has other plans.
Adil Zafar @AdilZafar111120 is a final-year law student at Jamia Millia Islamia, New Delhi. Views are personal.
(Edited by Anurag Chaubey)