New Delhi: The Central Government has told the Supreme Court that the immunity granted to Members of Parliament and State Assemblies under the Constitution does not protect them from prosecution under the Prevention of Corruption (PC) Act if they take bribe to vote or ask questions in the House. Can. Court on Wednesday.
Clarifying its stand before a seven-judge Constitution bench, the Center said the parliamentary privilege available to MPs and MLAs inside legislative houses cannot be extended to the act of taking bribes outside Parliament or state legislatures.
Solicitor General Tushar Mehta, appearing for the Center before a bench led by Chief Justice of India Dhananjay Y Chandrachud, said the question of exemption under Articles 105(2) and 194(2) of the Constitution would not arise in cases where bribes were given. She goes. is offered, and it is accepted by the legislator.
“Whether the legislator fulfills his part of the bargain or not; or whether any vote is cast or any question asked is immaterial if the offense of bribery is committed outside the Legislative House. That is why if the said offense has been committed outside the Legislative House itself, then none of the House privileges that exist for actions within the Hall of the House arise,” Mehta told the bench.
The Centre’s arguments came on a day when the Constitution bench, also comprising Justices AS Bopanna, MM Sundaresh, PS Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Mishra, was to examine the veracity of the 25-year-old judgment by a five-judge bench. The bench of judges had held with a majority that MPs and MLAs taking bribes and voting or asking questions in the House would be exempted under the Constitution.
The bench was considering the issue of whether immunity given to MPs is available if their acts involve criminality and the Centre’s statement made it clear that it will not press for any parliamentary privilege in bribery cases.
On September 20, the apex court had decided to revisit the 1998 Constitution bench judgment in the PV Narasimha Rao versus State case, as the judgment was relied upon by former Jharkhand Assembly member, Sita Soren of Jharkhand Mukti Morcha (JMM). did. , who allegedly accepted a bribe from an independent candidate for voting in the 2012 Rajya Sabha elections. The 1998 judgment, interestingly, protected MPs who voted or asked questions after taking bribes, but it did not protect those who took bribes but did not. Keep your end of the bargain.
Article 105(2) states that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or voted in Parliament or any committee thereof. A related provision granting immunity to members of state legislatures is contained under Article 194(2).
On Wednesday, as the seven-judge bench began the hearing, S-G Mehta stood up to state the Centre’s stand in the case. Mehta argued that it is necessary to provide security to MLAs in the discharge of their legislative and deliberative functions, but the act of bribery is a separate offense and punishable under the PC Act.
“The real issue is not the outline of legislative privileges in relation to Parliament or the State Legislatures, but the brief question on which the present context can be decided is – whether the offense of bribery is accomplished outside the legislative House? If the offense has been committed outside, then no question of parliamentary privilege arises,” he said.
Citing Section 7 of the PC Act, the S-G said the offense of bribery could be stated completely independent of, without reference to, “anything said or vote given” in Parliament or a State Legislature. There is also no question of legislative privilege. Attraction may arise if the member is prosecuted for taking a bribe for a speech or vote. Section 7 provides for a prison sentence of up to seven years.
As Mehta said that the dispute in the present case pertains more to the PC Act than the question of parliamentary privilege, the bench noted that the issue of immunity to lawmakers would still remain a point of discussion.
“The majority decision held that immunity applies regardless of criminality. And the only exception was for the person who did not fulfill his part of the bargain. We will ultimately have to deal with the issue of immunity also,” the CJI told the S-G.
Responding, Mehta said the question of privilege does not arise as the alleged act was committed outside the House.
“You are right. Then, you will have to say immunity does not attach,” the bench asked Mehta, who responded in agreement. “So, the controversy narrows down. We don’t have to say whether there is immunity or not. We will have to say that when the offence is committed outside, there is no question of immunity attaching under Article 105 or 194. Immunity can never attach when there is an element of criminality,” the court added.
At this point, the S-G requested the bench not to broaden the scope of the matter by revisiting the constitutional protection to lawmakers afresh, pointing out that there has been a line of jurisprudence in the matter outlining the privilege available to MPs and MLAs.
Accepting Mehta’s request, the bench replied: “You are entirely right. We should not be entering into issues that do not strictly arise before us. The law on this point has evolved in our country by way of interstitial steps…So, we will not revisit all that except in cases of bribery.”
It also acknowledged Mehta’s submissions that the legislature must have independence inside the House. “The whole purpose of the constitutional provisions is to encourage free speech and unrestrained dialogue in Parliament and state legislatures. And that, we must preserve. It’s a very important part of our nation and democracy,” said the bench, as it started hearing the matter.
Senior advocate Raju Ramachandran, appearing for Sita Soren, opposed review of the 1998 judgment, contending 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.
The bench, however, replied that the constitutional immunity will have to be read with what the Constitution intended, and it could be in two parts – First, immunity from prosecution to a vote or a speech; and second, criminal liability with respect to an illegal act done irrespective of the bargain. “Should we grant immunity to political corruption on an apprehension of a misuse of law? Because an apprehended misuse of law is always amenable to protection from court,” it added.
During the day, senior advocate PS Patwalia, who appeared in the matter as amicus curiae, also supported the view that there must not be any immunity for a legislator accepting bribes. Senior counsel Gopal Sankaranarayanan, representing intervenor in the case, advocate Ashwini Upadhyay, echoed Patwalia’s view. The bench will continue hearing the case on Thursday.
The 1998 judgment had come in the backdrop of the Jharkhand Mukti Morcha bribery scandal that rocked the Congress government, headed by PV Narasimha Rao in 1993. The Narasimha Rao government allegedly bribed several parliamentarians across parties to defeat a no-confidence motion.
The top court, by 3-2, decided that MPs who took the bribe 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 order prosecution of then MP Ajit Singh, who allegedly took a bribe but abstained from voting.
Before it agreed to reconsider the 1998 verdict, the apex court had on two previous occasions refused to do so. A review petition filed by the Central Bureau of Investigation (CBI) challenging the majority view of the judgment was dismissed in 2001 on grounds of delay. In July 2002, a writ petition filed by NGO Centre for Public Interest Litigation (CPIL) questioning the decision was not entertained as only a curative petition would lie after dismissal of review petition.
But on September 20, a five-judge bench of the Supreme Court, headed by the CJI, noted that the object of Articles 105(2) and 194(2) does not prima facie appear to be to render immunity from the launch of criminal proceedings for a violation of the criminal law, which may arise independently of the exercise of the rights and duties as a Member of Parliament or of the legislature of a state. It further noted the anomaly of the majority judgment in 1998 that protected such lawmakers who took a bribe and acted as per the bargain but left others to fend for themselves if they did not vote or ask question in a particular manner.
“Prima facie, at this stage, we are of the considered view that the correctness of the view of the majority in PV Narasimha Rao should be reconsidered by a larger bench of seven judges,” the September 20 order on reference said.
