By Dr Swati Jindal Garg
In a landmark move, the Supreme Court recently decided to reconsider its 1998 ruling where legal immunity was granted to legislators under Articles 105(2) and 194(2) of the Constitution. This protects them against criminal prosecution on bribery charges for any speech or vote in Parliament. This legal immunity or parliamentary privilege, as it is usually called, grants protection to legislators against civil or criminal liability for actions done or statements made in the course of their legislative duties.
But now, the Supreme Court has decided to revisit this 1998 ruling by referring the matter to a seven-judge Constitution bench on whether the legal immunity of legislators protects them from being prosecuted in a criminal court for the offence of offering or accepting a bribe.
In its 1998 ruling, the top court had held that legislators have immunity against criminal prosecution on bribery charges for any speech or vote in Parliament. Observing the need to examine the correctness of the same, the chief justice of India has now referred the verdict to a larger bench.
The controversy and the need to revisit the said verdict started with a plea filed by Sita Soren, a member of the JMM, who was accused of accepting a bribe to cast her vote for a certain candidate in the Rajya Sabha elections of 2012. After these accusations came to the fore, a complaint was filed before the Chief Election Commissioner to conduct a CBI probe in this case. Subsequently, the CBI filed a chargesheet against Soren, accusing her of various offences under the IPC and the Prevention of Corruption Act, 1988, such as bribery, criminal conspiracy and criminal misconduct by a public servant.
Soren then approached the Jharkhand High Court for quashing the chargesheet and criminal proceedings initiated against her on the grounds of immunity under Article 194(2). This was rejected. Soren then approached the Supreme Court for relief, wherein a two-judge bench, noting the nature of the issue and the fact that it was “substantial and of general public importance”, recommended that it should be placed before a larger bench of three judges. This was further placed before a five-judge bench of Justices AS Bopanna, MM Sundresh, JB Pardiwala and Manoj Misra.
Considering the gravity of the issue, they referred it to a larger bench of seven judges, saying that it was an “important issue that concerns our polity”. The Court also added that the purpose of Articles 105(2) and 194(2) was to ensure that members of Parliament and state legislatures can discharge their duties in an atmosphere of freedom without fearing the consequences that may ensue for how they speak or exercise their right to vote on the floor of the House. “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.”
Ironically, the 1998 judgment refers to the 1993 JMM bribery case concerning Shibu Soren, who is the father-in-law of Sita Soren. In Shibu’s case, he, along with some of his party MPs, were accused of taking bribes to vote against a no-confidence motion against the then PV Narasimha Rao government. Out of the five judges on the bench in this case, two opined that protection under Article 105(2) or 194(2) and the immunity granted could not extend to cases concerning bribery for making a speech or vote in a particular manner in the House.
However, the majority view was that while the Court was “acutely conscious of the seriousness of the offence”, the bench’s “sense of indignation” should not lead to a narrow construction of the constitutional provisions as this may result in hampering the guarantee of “parliamentary participation and debate”.
The seven-judge bench comprising of Chief Justice of India DY Chandrachud and Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Manoj Misra and Sanjay Kumar has now finally reserved its verdict on whether lawmakers can claim immunity from criminal prosecution for taking bribes. During the hearing, the apex court was told that a regime of immunities was not inconsistent with the Rule of Law. It was also submitted that “one of the pillar of constitutionalism has been a regime of immunities, so there is no inconsistency with the rule of law….the offence of bribery is not dependent on the performance of promised favour”.
On the other hand, Solicitor General Tushar Mehta, speaking for the centre, said that the opinion of Justice SC Aggarwal in the PV Narasimha judgment was correct. He also added that the present issue was more a question of offence under the Prevention of Corruption Act rather than Article 105 of the Constitution. “Suppose the MP does not act after taking the bribe…then the question of immunity does not arise. Therefore, the interpretation of the PC Act is much more important,” Mehta said.
Senior counsel Raju Ramachandran submitted that the offence of bribery under criminal law was complete when the bribe was given and was not dependent on the performance of the promised favour, and this was of no consequence to constitutional immunity. Senior Advocate PS Patwalia, assisting the bench as an amicus curiae (friend of court), said that it did not intend to give protection to an individual from ordinary criminal laws, but to protect the integrity of the legislative process.
In written submissions filed by the Citizen’s Rights Trust, the Supreme Court has been apprised that the provisions of the Constitution must be so interpreted that persons committing a crime are brought to justice and are not able to claim any immunity from criminal liability in the garb of parliamentary privilege. The Court was also informed that persons with criminal backgrounds entering Parliament and legislative assemblies and making laws have a serious impact on the democratic set up in the country. Hence, constitutional provisions regarding parliamentary privilege and immunity from prosecution by the legislators must be interpreted having due regard to the context of large scale criminalisation of politics and on the touchstone and through the prism of constitutional morality.
Over the years, it has been observed that “corruption cases against influential persons are difficult to conclude due to the complexity in prolonged legal procedures in aggregation with their money, political, bureaucratic powers. And if they are at all convicted, punishment/temporary monetary losses have no impact whatsoever on their social, financial & political life”.
Corruption, it is seen, not only undermines democracy and rule of law, and leads to violations of human rights, it also distorts markets, erodes quality of life and allows organized crime like separatism, terrorism, naxalism, radicalism, gambling, smuggling, kidnapping, money laundering and extortion and other threats to human security to flourish, they said.
It cannot be denied that political corruption and misuse of law is a fact of life. The apex court has time and again come to the help of citizens and lawmakers who have suffered unjust persecution. And law-makers were given immunity from prosecution to protect them from unjust harassment. But the question that the Court asked is whether it should grant immunity to political corruption just on the ground of apprehension of misuse of the law?
The CJI also said: “We should not be entering into issues which do not arise before us. The law has evolved in our country….Because the whole purpose was to encourage free speech and free dialogue in Parliament and in state legislatures and that we must preserve. The legislatures in both the Union and the states are an important part of the nation.”
He further delved into the scenario where even if a legislator has taken a bribe for casting a vote in a particular manner or making a speech, “the court cannot invalidate the vote because it was motivated by a bribe. Suppose a person is convicted for an offence of bribery, can the court say the vote should be excluded from counting parliamentary majority. It’s still a valid vote”. The bench went on to clarify that immunity cannot be attached when there is a criminal wrongdoing.
The bench also asked whether immunity against prosecution would be available if bribe is paid to lawmakers to not speak or vote. To which the amicus replied: “The offence (of bribery) is complete if the bribe is accepted… Even under normal law, if you take a bribe for doing a legal act, you are guilty. Even if you take a bribe and don’t do the act, you are guilty. Only offer and acceptance have to be proved. That is the law.”
Whether the parliamentary immunity regarding bribery is granted or not, it is a fact that change is constant. Revisiting a ruling passed in 1998 by the apex court is ample proof of that.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi