Landmark Judgement by SC Withdrawing Immunity to Legislators against Taking Bribe

Manas Dasgupta

NEW DELHI, Mar 4: In a landmark judgement, a seven-judge constitution bench of the Supreme Court headed by the Chief Justice of India on Monday overruled a 1998 majority judgement and held that the lawmakers in parliament and state legislatures are not immune from prosecution for accepting bribes to cast a vote or make a speech in the House in a particular fashion.

The verdict set aside a 1998 judgment in which a five-member Constitution bench had upheld the immunity for lawmakers in cases where MPs or MLAs take bribes for a speech or a vote in the House.

Bribery, the court said, was not protected by parliamentary privileges and the interpretation of the 1998 verdict was contrary to Articles 105 and 194 of the Constitution. These two Articles provide elected representatives legal immunity from prosecution to enable them to work without fear. The Articles 105 and 194 deal with the powers and privileges of MPs and MLAs in parliament and legislative assemblies.

Soon after the SC verdict was announced, the Prime Minister Narendra Modi welcomed the judgement and said it would ensure cleaner politics in the country. “Swagatam. A great judgment by the Supreme Court which will ensure clean politics and deepen people’s faith in the system,” Mr Modi said in a post.

The Bench in a unanimous judgment authored by Chief Justice Chandrachud said a legislator would not be protected for parliamentary privilege and would be liable for criminal prosecution under the Prevention of Corruption Act for accepting the bribe. The crime was complete the moment the bribe was accepted, whether or not, he or she had followed it up by voting or making a speech in the manner the bribe giver wanted it, the court held. Equally, the place where the bribe was offered or received did not matter, the court observed in the judgment.

The bench also comprised Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar, and Manoj Misra.

Taking bribes by legislators destroyed the fabric of representative democracy, the Chief Justice held. Voting or speaking in favour of a party in the House after taking money from them amounted to a breach of discipline and was agnostic to the functions of a legislator. It demolished the faith of the people in the debates and grievously affected the foundation of parliamentary democracy, the court said.

The Supreme Court framed a two-point test for claiming parliamentary privilege. One, the act should have been part of the collective functioning of office. Two, the act was part of the obligations and duties of office of a legislator.

The question had arisen in the context of bribery charges against Jharkhand Mukti Morcha MLA Sita Soren in connection with the 2012 Rajya Sabha election for two seats from the state. Sita Soren was accused of accepting a bribe from an Independent candidate for voting for him. She had said she had voted for her party candidate. A fresh election was held later, in which she voted for her party candidate.

Sita Soren had moved the Jharkhand High Court for the quashing of the charge-sheet and criminal proceedings against her, relying on the provisions of Article 194 (2), but the HC declined to do so. She then approached the SC, where a two-judge Bench in September 2014 opined that since the issue was “substantial and of general public importance,” it should be placed before a larger bench of three judges.

On March 7, 2019, a bench of three judges took up the appeal and noted that the HC judgment dealt with the Narasimha Rao verdict, and hence should be referred to a larger bench and it was ultimately referred to the seven-judge bench.

While reading out the operative part of the judgement, CJI Chandrachud said, “The seven of us have arrived at a unanimous verdict… We disagree with and overrule the judgement of the majority on this aspect.”

Ms Soren is the daughter-in-law of JMM chief and former Union Minister Shibu Soren, who was involved in the alleged JMM bribery case. In 1993, four JMM MLAs and eight other MPs were allegedly bribed to ensure the survival of the then P.V. Narasimha Rao government during a no-confidence vote. They voted accordingly, and when the scandal broke, claimed immunity from criminal prosecution because their act of voting had happened inside Parliament.

The seven-judge bench’s judgement said “Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature” and “this purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery.” “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 court said.

“The same principle applies to bribery in connection with a speech in the House or commit committee,” the bench said adding “corruption and bribery by members of the legislature erode probity in public life.”

Reserving judgment in October last year, the seven-judge Bench had orally observed that legislators could not escape from the law by claiming immunity of office or privilege under Articles 105(2) or 194(2) of the Constitution merely because the incident of bribery was completed outside the House.

The court had made it clear orally that the place — whether inside or outside the House — where an MP or MLA completed the crime of bribery really made no difference to prosecution under the Prevention of Corruption Act.

The government’s stand in the case was in tune with the minority view of Justice (retired) S.C. Agarwal on the Bench in the JMM bribery case in 1998. Justice Agarwal had clearly held that the protective cloak of immunity around an MP or MLA would not extend to bribes received outside the House.

The PV Narasimha Rao case had come up in connection with a no-confidence motion against his government in July, 1993. The minority government had survived with a slim margin – 265 votes in favour and 251 against. A year later, however, a scandal emerged and allegations surfaced that legislators of Jharkhand Mukti Morcha had taken bribes to vote in support of the PV Narasimha Rao government. In 1998, the Supreme Court held that the lawmakers’ immunity from prosecution extended to their votes and speeches inside the House.

The court today said a claim for immunity in such situations fails to pass the test of being necessary to discharge legislative functions. “We hold that bribery is not protected by Parliamentary privileges. Corruption and bribery by legislators destroy the functioning of Indian Parliamentary democracy. An MLA taking a bribe to vote in Rajya Sabha elections is also liable under the Prevention of Corruption Act,” the bench said.

“The PV Narasimha judgment,” the Chief Justice said, results in a ‘paradoxical situation’ in which a legislator who accepts a bribe and votes accordingly is protected whereas a legislator who votes independently despite taking a bribe is prosecuted.”

In the review hearings, Chief Justice Chandrachud had observed that the majority view had turned the anti-corruption law on its head. It pointed out that the 1998 majority judgement had resulted 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” but “on the other hand a legislator, who agrees to accept a bribe, but decides to vote independently will be prosecuted.”

The bench said, “The offence of bribery is agnostic to the performance of the agreed action and crystallised on the exchange of the legal gratification. It does not matter whether a 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.” “The doctrine of stare decisis is not an inflexible rule of law” and “a larger bench of the court may reconsider a previous decision in appropriate cases bearing in mind the test which have been formulated in the precedence of this court,” said the bench.

“The judgement of this court in Narasimha Rao, 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 grave danger of this court allowing an error to be perpetrated if the decision were not reconsidered,” it said.

The court pointed out, “Unlike the House of Commons in the 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 phase of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the constitution”.

“Whether a claim to privilege in a particular case confirms to the parameters of the constitution is amenable to judicial review,” it said. “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”.

The SC said, “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 receipt of a bribe by a member of legislature exist in distinct spheres”. “The scope, purpose and consequences of the court exercising jurisdiction in relation to criminal offences and the authority of the House to discipline its members are different.”

The judges said, “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, alleged to have indulged in an act of bribery.”