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? A seven-judge bench of the Supreme Court is now set to consider this question. Or rather, reconsider.
“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 asked Wednesday.
It was referring to a 1998 judgment. Back then, a five-judge Constitution bench of the Supreme Court ruled that legislators could enjoy immunity from prosecution under Article 105 of the Constitution when it came to matters involving their speeches or votes in Parliament.
This verdict stemmed from the notorious 1993 ‘JMM bribery scandal’. In this case, had been alleged that several MPs from the Jharkhand Mukti Morcha (JMM) and Ajit Singh’s Janata Dal faction were bribed to bail out the Narasimha Rao government during a no-confidence vote in the Lok Sabha.
Subsequently, in a 3:2 decision, the Constitution Bench asserted that Article 105 was a shield, safeguarding MPs from any court proceedings that “related to, concerned, or had a connection or nexus with anything said, or a vote given, by him in Parliament.”
However, Wednesday, a five-judge Constitution bench of the Supreme Court — comprising Chief Justice of India DY Chandrachud and Justices AS Bopanna, MM Sundresh, JB Pardiwala, and Manoj Misra — decided to take a relook at this verdict and referred it to a seven-judge bench.
“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,” the bench observed.
However, it also noted that this should not translate to a free pass: “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.”
Here’s a look at what the 1998 judgment said and why the court is going to revisit the ruling.
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What was the 1993 bribery case & what 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.
Then, in July 1993, Communist Party of India (Marxist) leader Ajoy Mukhopadhyay brought a vote of no confidence in the monsoon session of 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 the 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.
What gave them some armour was Article 105 of the Constitution, which provides for the powers and privileges of the Houses of Parliament, MPs, and committees.
It states, among other things: “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 decided in favour of the MPs. In its judgment, 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 is the case before SC again?
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.
Sita 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. The trial court then took cognisance of offences under provisions of the Prevention of Corruption Act and Section 120B (Criminal Conspiracy) of the Indian Penal Code. Soren challenged this order before the Jharkhand High Court, claiming immunity under Article 194 of the Constitution.
In February 2014, the high court ruled that the principle under which Ajit Singh was denied parliamentary immunity would be applicable to Soren as well. It explained that in the 1998 judgment, the apex court observed that Ajit Singh did not have the protection of immunity since he did not cast a vote. Similarly, protection would not be available to Soren, since she did not vote for Agarwal.
The HC also said that the immunity granted to legislators under Article 194 did not apply to MLAs who accept a bribe to vote a certain way, but then flip and cast their ballot in another way.
The court observed that the alleged bribe had “no nexus” with the vote that Soren cast, which meant she did not have immunity under Article 194.
This 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, noting that it was “a matter of substantial public importance” with wide ramifications.
What has happened so far?
The case came up for hearing before the five-judge bench last year, 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 Soren’s appeal.
Arguing for Soren, senior advocate Raju Ramachandran contended that the Jharkhand High Court had incorrectly interpreted 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 as amicus curiae.
During the hearing Wednesday, Ramachandran argued that the Sita Soren case before the Supreme Court now only concerned an application of the 1998 judgment. He pointed out that neither party had challenged the legitimacy of the 1998 judgment. Attorney General for India R Venkataramani raised a similar point.
On the other hand, Patwalia, as well as senior advocate Gopal Sankarnarayanan, who was appearing for an intervenor, argued in favour of referring the judgment to a larger bench.
Sankaranarayanan submitted that the case revolved around the interpretation of the phrase “in respect of” in Articles 105 and 194.
He then pointed out that such an immunity did not exist in countries like the US and the UK, and that India stood out “like a sore thumb” because of the judgment.
Sankarnarayanan also questioned the “absurdity” of the fact that legislators who took bribes and voted accordingly were granted immunity, while those who voted differently were not.
“I ask myself that if I were to have taken a bribe and then have second thoughts — a prick of conscience — and I decide not to vote as the bribe demanded, I wouldn’t have my immunity,” he was quoted as saying in LiveLaw.
“But if I were a good boy and acted as per the bribe and went and voted in accordance with that, I would suddenly be immune,” he added. “This absurdity has led to criticism.”
(Edited by Asavari Singh)
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