Centre backs verdict protecting lawmakers from prosecution if they accept cash for vote in House

New Delhi: Calling it a “constitutionally correct” principle, the Union government on Tuesday backed in the Supreme Court a 1998 ruling that shields MPs and MLAs from prosecution if they accept bribes in lieu of their votes in Parliament or in state assemblies.

Arguing before a Constitution bench led by justice SA Nazeer, the Centre opposed a reconsideration of the 1998 judgment in the PV Narasimha Rao (JMM bribery) case on the ground that even the gross facts of a case will not justify taking away the immunity granted to the legislators under the Constitution for their acts on the floor of the House.
Solicitor general (SG) Tushar Mehta, representing the Centre, submitted that the majority view of three judges on the five-judge bench in the 1998 verdict is the correct view, requiring no re-look at the provisions of immunity accorded to legislators under constitutional provisions.

Article 105(2) of the Constitution states that no member of Parliament (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 similar provision exists for MLAs under Article 194(2).

“We are accepting the Narasimha Rao judgment… we are saying the immunity cannot be diluted just because facts of one particular case is gross or peculiar,” the SG told the bench, which also included justices BR Gavai, AS Bopanna, V Ramasubramanian, and BV Nagarathna.

The court was hearing a reference to examine the correctness of the majority ruling in the 1998 judgment in providing absolute immunity to legislators from prosecution for bribery. By 3-2, the Supreme Court in the Narasimha Rao case held that MPs and MLAs were screened from prosecution in such cases since the alleged kickbacks were in respect of a parliamentary vote, which is guarded by parliamentary immunity under the relevant constitutional provisions.

However, in 2014, the Jharkhand high court drew a fine distinction and held that parliamentary immunity from prosecution will not protect a legislator who accept a bribe to vote in a certain manner, and does not vote in that manner. The high court order came while rejecting a petition by Sita Soren, a member of the Jharkhand Mukti Morcha (JMM) who allegedly accepted a bribe to vote for a particular candidate in the Rajya Sabha elections of 2012 but did not do so.

Subsequently, Soren challenged the high court judgment in the top court, pressing that she is entitled to an absolute immunity as per the 1998 verdict in the Narasimha Rao case. However, in March 2019, a three-judge bench noted that since the issues involve “substantial public importance” with “wide ramifications”, it should be heard by a five-judge bench, congruent in strength to the Narasimha Rao case.

On Tuesday, Mehta opened the arguments stating that he supports the majority view of the 1998 ruling and that the matter should be sent back to a bench of two or three judges where the Centre may argue on merit against Soren. “On the facts of this case, we oppose the petition, but on the matter of constitutional principle, we support the 1998 judgment,” he added.

On his part, senior advocate Raju Ramachandran, representing Soren, also relied on the 1998 judgment and found fault with the high court judgment in paving way for his client’s prosecution for the “betrayal” since she did not vote for the candidate for whom she allegedly accepted a bribe.

At this point, the bench quipped: “So, it’s a case of cash outside the House and conscience inside the House… and you were held guilty of the breach of contract. Had you carried out the specific performance, you would have been entitled to the relief.”
On Mehta’s request to refer it back to a smaller bench for a decision on the facts, the Constitution bench said that it would have to examine the preliminary issue after the reference. However, since both the government and the petitioner were on the same side, the court proceeded to appoint senior counsel PS Patwalia and advocate Gaurav Agrawal as amicus curiae to assist it. It fixed the matter for December 6 to decide whether the previous judgment needs a review.

The Constitution bench judgment in 1998 came after criminal prosecutions were sought to be launched in the wake of 10 MPs belonging to the JMM and the Janata Dal casting their votes to defeat a no-confidence motion moved in the Lok Sabha against the minority government of Prime Minister PV Narasimha Rao in 1993.
The Supreme Court at that time held that the bribe-taking MPs who voted on the no-confidence motion are entitled to immunity from criminal prosecution for the offences of bribery and criminal conspiracy conferred on them by Article 105(2) of the Constitution. The court reasoned that the term “in respect of” occurring in the Article accorded parliamentary immunity against any liabilities “that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament”. Once such a functional connection was established, immunity prevailed, it declared.