Three Decades After JMM Bribery Scandal, SC To Revisit Verdict On MP, MLAs’ Immunity From Prosecution For Taking Bribe To Vote

Three Decades After JMM Bribery Scandal, SC To Revisit Verdict On MP, MLAs’ Immunity From Prosecution For Taking Bribe To Vote

Subject: Polity

Section: Parliament

Context: The Supreme Court on Wednesday agreed to reconsider a 25-year-old verdict by a five-judge bench to grant immunity from criminal prosecution to MPs and MLAs who take bribes to cast their votes or deliver speeches in the House in a “particular manner”

A five-judge bench headed by Chief Justice DY Chandrachud said that a seven-judge bench will examine “the correctness” of the verdict delivered in the 1998 PV Narasimha Rao versus State case.

What is the case?

• The case deals with the interpretation of Articles 105(2) and 194(2) of the Constitution, which protect legislators from criminal or civil proceedings in any court for anything they say or any vote they cast in Parliament or in the State Legislative Assemblies.
• The 1998 case pertained to allegations that Jharkhand Mukti Morcha chief Shibu Soren and four other party MPs had accepted bribes to vote against a no-confidence motion against the PV Narasimha Rao government in 1993. The Narasimha Rao government, which was in a minority, survived the no-confidence vote with their support.
• The Supreme Court had quashed the case registered by the Central Bureau of Investigation, citing the immunity under Article 105(2) of the Constitution.

Why now?

• In March 2019, a three-judge bench headed by former Chief Justice Ranjan Gogoi had referred the appeal to a five-judge bench, noting that it involved interpreting the 1998 verdict. The three-judge bench had said that the case had “wide ramification” and was of “substantial public importance”.
• On Wednesday, the court was hearing an appeal filed by Sita Soren, Jharkhand Mukti Morcha MLA and daughter-in-law of Shibu Soren. She has been accused of taking a bribe to vote for an Independent candidate in Rajya Sabha elections in 2012.The Jharkhand High Court had refused to accept her plea of immunity on February 17, 2014, following which she had approached the Supreme Court.

Why important?

The Supreme Court said it was an important matter that had a significant bearing on “morality of polity”

Origin of Parliamentary Privileges

• The Government of India Act, 1935 first brought this provision to India, with references to the powers and privileges enjoyed by the House of Commons in Britain.
• An initial draft of the Constitution too contained the reference to the House of Commons, but it was subsequently dropped.

Parliamentary Privileges

• Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
• These privileges are defined in Article 105 of the Indian Constitution.
• Article 105 of the Constitution expressly mentions two privileges, that is, freedom of speech in Parliament and right of publication of its proceedings.
• Apart from the privileges as specified in the Constitution, the Code of Civil Procedure, 1908, provides for freedom from arrest and detention of members under civil process .
• The privileges are claimed only when the person is a member of the house.  As soon as s/he ends to be a member, the privileges are said to be called off.
• This immunity extends to certain non-members as well, such as the Attorney General of India or a Minister who may not be a member but speaks in the House.
• Parliament has not made any special law to exhaustively codify all the privileges. They are rather based on five sources:
  • Constitutional provisions
  • Various laws made by Parliament
  • Rules of both the Houses
  • Parliamentary conventions
  • Judicial interpretations.

Freedom of Speech in Parliament:

• The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from the freedom of speech and expression provided to a member of the parliament.
• It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulate the proceedings of the parliament.

Limitations:

• Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
• Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court.

Freedom from Arrest:

• The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session.
• No member can be arrested from the limits of the parliament without the permission of the house to which s/he belongs so that there is no hindrance in performing their duties.
• If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, of the reason for the arrest.
• But a member can be arrested outside the limits of the house on criminal charges against him under the Preventive Detention act, the Essential Services Maintenance Act (ESMA), the National Security Act (NSA), or any such act.

SC Observation :

• A five-judge Bench of the apex court ruled that the ordinary law would not apply to the acceptance of a bribe by an MP in case of parliamentary proceedings.
• “Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament,” the court said, giving a wider ambit to the protection accorded under Article 105(2).
• In July 2021, the Supreme Court rejected Kerala government’s plea to withdraw criminal cases against its MLAs who were charged in the assembly.
• The Supreme court stated that Parliamentary Privileges are Not Gateways of Immunity and the legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution.

Right to Prohibit the Publication of Proceedings:

• Article 105(2) of the Constitution, no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the either house of parliament .
• For paramount and national importance, it is essential that the proceedings should be communicated to the public to aware them of what is going on in the parliament.

Collective privileges of the house:

• Various privileges such as internal autonomy, power to punish for contempt in case of breach of privileges and also external interferences by strangers, freedom of speech in the debates, and the passing of resolutions expressing the collective opinion of the members for the public interest, rule-making powers, etc. can be enjoyed collectively by the House itself.