The Supreme Court on March 4 ruled that MPs and MLAs can be prosecuted for corruption if they take bribe to ask questions or make speeches in Parliament or assembly, reversing its 1998 order that gave immunity to lawmakers.
The seven-judge bench order comes weeks after Trinamool Congress leader Mahua Moitra was expelled from the Lok Sabha for alleged unethical behaviour. Moitra is also facing CBI and ED probes for allegedly sharing parliamentary login credentials for asking questions in Parliament allegedly in return for money and other gifts. She has denied the charges and challenged her expulsion in court.
As per the Constitution, members of Parliament and assemblies enjoy immunity for their actions and speeches inside the respective Houses. However, the leader of the House can suspend or remove a member for unethical behaviour.
Moneycontrol explains why the Constitution gives immunity to lawmakers, how the Supreme Court is reviewing the issue, and what are the latest developments in the case.
Why does the Constitution protect lawmakers?
Article 105 of the Constitution of India allows freedom of speech in parliament. In order to uphold the same, MPs must not be prosecuted in a court of law for what they said or how they voted in the house.
According to Article 105 (2), “No member of parliament 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.”
Members of a state legislative assembly also enjoy similar immunity from prosecution for anything said or a vote cast in the assembly, as per article 194 of the constitution.
The question of whether an MP can be prosecuted in a court of law for taking a bribe to speak or vote on an issue has been considered by the Supreme Court twice – 25 years apart.
The first time was in 1998, when the apex court ruled that MPs were immune from prosecution in court on bribery charges for their speech or vote in parliament. The case pertained to allegations that some MPs were bribed to help defeat a no-confidence motion against the Congress party led by PV Narasimha Rao, in July 1993.
The second occasion was in 2023 in a case against Jharkhand Mukti Morcha (JMM) leader Sita Soren, who allegedly accepted a bribe to vote for an independent candidate in the RS elections of 2012.
The Narasimha Rao case
The Congress emerged as the single largest party in the 1991 general elections and formed the government with Rao as the Prime Minister, although at 251 seats, it was 14 seats short of a simple majority.
Ajay Mukhopadhyaya, a CPM MP, introduced a no-confidence motion against the government in the Lok Sabha on July 26, 1993, during the monsoon session. The motion was subsequently defeated, with 265 votes against and 251 in favour, on July 28, 1993.
Opposition leaders approached the Central Bureau of Investigation (CBI) alleging that the ruling party had bribed MPs to vote against the motion, and said the matter must be prosecuted in a court of law. The CBI registered cases against JMM MPs.
The case ultimately reached the SC, where it was referred to a five-judge constitution bench. The SC, by a majority of 3:2, held that legislators were immune to prosecution on bribery charges for their speech or vote in parliament, because Article 105 (2) confers immunity on them.
However, the minority view held that the immunity granted under article 105 (2) and 194 (2) of the constitution would not extend to cases where bribery is alleged for making a speech, or voting in a particular manner.
The Sita Soren case
In 2023, the SC said it would reconsider the judgement in the 1998 case involving the Rao government. A bench of the court said this in relation to the bribery allegations against Soren.
It was alleged that during the 2012 election to choose two RS members from Jharkhand, Soren, an MLA, accepted a bribe from an independent candidate to vote in his favour. However, she did not vote in favour of the alleged bribe-giver, who then filed a complaint against her, which culminated in a charge sheet against her.
Soren moved the high court to quash the charge sheet. However, the court refused to do so, stating that she had not cast her vote in favour of the alleged bribe-giver and hence was not entitled to protection.
Considering the similarities with the Rao case, this case was placed before a five-judge constitution bench.
Reference to seven-judge bench
In September 2023, the case came up for hearing before the five-judge bench led by CJI Chandrachud. The bench decided to place the case before a seven-judge bench with the intent of revisiting its ruling in the Rao case.
The apex court made the reference on three grounds:
1. The intent behind granting immunity to lawmakers is only to enable free speech in parliament and the legislature. However, it may not be for immunity from criminal proceedings for a violation of criminal laws independent of their rights and duties as a member of parliament or a state legislature.
2. What would happen if a lawmaker received a bribe not to speak or vote on an important issue? Would the immunity still apply?
3. If a lawmaker accepts a bribe and subsequently does not fulfil the purpose for which the bribe was taken, would it still be an offence?
The seven-judge bench heard the case at length on October 4 and 5 and reserved its judgment.
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