No immunity from prosecution to MPs, MLAs for taking bribe to vote in legislature: SC

New Delhi: The Supreme Court on Monday held that MPs and MLAs do not enjoy immunity from prosecution for taking bribe to make a speech or cast a vote in the legislature.

A seven-judge constitution bench headed by Chief Justice D Y Chandrachud unanimously overruled the 1998 verdict delivered by a five-judge bench in the JMM bribery case by which MPs and MLAs were granted immunity from prosecution for taking bribe to make a speech or vote in the legislature.

Pronouncing the verdict, the CJI said bribery is not protected by parliamentary privileges and the interpretation of the 1998 verdict is contrary to Articles 105 and 194 of the Constitution.

The bench, led by Chief Justice of India Dhananjaya Y Chandrachud, declared that members of Parliament (MPs) and members of legislative assembly (MLAs) will not have immunity from prosecution for taking a bribe to make a speech or vote in Parliament and state legislatures.

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

Reading out the unanimous verdict on behalf of the bench, the CJI held that individual members 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 the 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,” said the bench, adding corruption and bribery have wide ramifications on public interest, probity in public life and parliamentary democracy.

Article 105(2) lays down that no MP 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. A corresponding provision giving immunity to members of state legislatures is contained under Article 194(2).

“Bribery is not rendered immune under Articles 105(2) and the corresponding provision of Article 194(2) 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 same principles apply to bribery in connection with the speech in the House or a committee,” said the bench.

It added that the offence of bribery is agnostic to the performance of the agreed action and crystallized on the exchange of illegal gratification. “It does not matter whether the vote is cast in the agreed direction or if the vote is cast at all. The offence of bribery is complete at that point in time,” clarified the bench, adding the principles enunciated by the judgment regarding the parliamentary privilege will apply equally to elections to Rajya Sabha or to the office of president and vice-president.

On September 20, the court decided to re-look at the 1998 judgment in the PV Narasimha Rao Vs State (CBI) case after this judgment was relied upon by a former member of the Jharkhand assembly, Sita Soren of the Jharkhand Mukti Morcha (JMM), who allegedly accepted a bribe from an independent candidate for voting in the Rajya Sabha elections of 2012.

The 1998 decision by a five-judge bench, by a 3-2 majority, had held that MPs and MLAs accepting bribes and voting or asking questions in the House would enjoy immunity under the Constitution. This judgment, curiously, protected those lawmakers who voted or asked questions after receiving bribes, but it did not protect those who received bribes but did not keep their end of the bargain.

The 1998 judgment came against the backdrop of the JMM bribery scandal that rocked the Congress government, headed by PV Narasimha Rao in 1993. The Rao government allegedly bribed several parliamentarians across parties to defeat a no-confidence motion.

The court, in a 3-2 verdict, decided in 1998 that MPs who took bribes and voted in the House could not be prosecuted as they enjoyed immunity under Article 105(2) of the Constitution. However, such protection will not be available to an MP who received a bribe but abstained from voting or making a speech, the judgment added. It was this anomaly that led the court to clear the prosecution of then MP Ajit Singh, who allegedly took a bribe but abstained from voting.

The seven-judge bench on October 5 last year reserved its verdict on the correctness of the 1998 ruling. The Union government implored the bench to nullify the precedential value of the 1998 judgment while emphasising that any act of bribery outside legislative Houses is prosecutable under the Prevention of Corruption (PC) Act.

While making the request to declare the 25-year-old judgment “per incuriam” (rendered in ignorance of a statute), the government, represented through attorney general R Venkataramani and solicitor-general Tushar Mehta, also proposed that an in-house committee, to be coined as “speech and vote watch”, could be a worthwhile alternative to the judicially mandated guidelines that the seven-judge Constitution bench may consider.

The government maintained that the controversy could be resolved by the court holding that the Narasimha Rao judgment is “per incuriam” because it failed to consider the statutory scheme of the PC Act, which criminalises an act of bribery if takes place outside legislative Houses.

The government also emphasised that the bench should limit its ruling to stating that the 1998 ruling should not be regarded as precedent in any situation where a lawmaker accepts bribes. It added there was no need to delve into the larger issue of immunity granted to the lawmakers under Articles 105(2) and 194(2) of the Constitution.

Venkataramani said the court ought to refrain from issuing any “inflexible norms” in the matter. He argued the remit of prescribing enforceable norms should be with Parliament and state legislatures considering the purpose and objective of the constitutional protection and the varied roles that a legislator is expected to perform inside as well as outside the House.

Mehta cited Section 7 of the PC Act, contending that the offence of bribery can be said to be completely independent of, and without reference to, “anything said or any vote given” in Parliament or state legislature, no question of any legislative privilege being attracted can arise if the member is prosecuted for taking a bribe for the speech or vote. Section 7 prescribes a punishment of up to seven years in jail.

Senior advocate Raju Ramachandran, who appeared for Sita Soren, opposed a review of the 1998 judgment. He submitted that issues of constitutional privileges and immunities are not in derogation to the rule of law but a distinct pillar in constitutional edifice to protect lawmakers who are also prone to political persecution.

Senior advocate PS Patwalia, who appeared in the matter as amicus curiae, supported the view that there must not be any immunity for a legislator accepting bribes. Senior counsel Gopal Sankaranarayanan, representing the intervenor in the case, advocate Ashwini Upadhyay, echoed Patwalia’s view.