Note for vote: Supreme Court to rule if MPs, MLAs have immunity for taking bribes to speak or vote in House

New Delhi: A seven judge Constitutional Bench of the Supreme Court will pronounce its verdict on Monday on whether MPs and MLAs enjoy immunity from prosecution for taking a bribe to make a speech or cast a vote in parliament.

A bench comprising Chief Justice DY Chandrachud, Justice AS Bopanna, Justice MM Sundresh,.Justice Sanjay Kumar, Justice P S Narasimha, Justice J B Pardiwala and Justice Manoj Mishra will pronounce their judgement on the matter that has been taken up 25 years after the JMM bribery scandal rocked the country. The Supreme Court decided to revisit its judgement when the issue came before it in 2019.

A bench headed by then chief justice Ranjan Gogoi was hearing an appeal filed by Sita Soren, JMM MLA from Jama and daughter-in-law of party chief Shibu Soren, who was an accused in the JMM bribery scam.

Sita Soren was accused of taking bribes to vote for a particular candidate in the Rajya Sabha election in 2012.

She had contended that the constitutional provision granting lawmakers immunity from prosecution, which saw her father-in-law being let off the hook in the JMM bribery scandal, be applied to her.

She had moved the apex court against the Jharkhand High Court order of February 17, 2014 refusing to quash the criminal case lodged against her. The Narasimha Rao government, which was in a minority, survived the no-confidence vote with their support.

The three-judge bench comprising the then CJI Ranjan Gogoi, Justice S. Abdul Nazeer and Justice Sanjiv Khanna had then said it would revisit the SC verdict in the JMM bribery case involving Shibu Soren, a former Jharkhand chief minister and ex-union minister, and four other party MPs who had accepted bribes to vote against the no-confidence motion threatening the survival of the P V Narasimha Rao government in 1993.

The Gogoi-headed bench referred the matter to a five-judge bench, noting it had “wide ramifications” and was of “substantial public importance”.

The five-judge bench was constituted comprising Chief Justice DY Chandrachud, Justice A S Bopanna, Justice MM Sundresh, Justice J B Pardawala, and Justice Manoj Mishra which on September 20, 2023 agreed to reconsider its judgement, saying it was an important issue having a significant bearing on “morality of polity”.

The bench the same day considered the matter to be of utmost importance, and referred the top judiciary’s judgement in P V Narasimha Rao v Sate (1998) to a seven-judge bench.

The seven-Judge bench led by the Chief Justice of India started hearing the matter on October 4, 2023. The bench was tasked to decide the correctness of the P V Narasimha Rao v State (1998) judgement.

In that case, the five-judge bench of the Supreme Court—in a 3:2 majority—had held that parliamentarians enjoy constitutional immunity against criminal prosecution in connection with their speeches and votes in the House.

Articles 105 (2) and 194 (2) extend this constitutional privilege and immunity to parliamentarians and legislative assembly members respectively.

Senior Advocate Raju Ramachandran argued in favour of the precedent. He appeared for Sita Soren, a member of the Jharkhand Mukti Morcha (JMM) who had been accused of taking a bribe to vote for an independent candidate in the Rajya Sabha elections of 2012.

Soren eventually voted for a candidate from the JMM, and not the independent candidate.

Ramachandran contended that the constitutional privileges and immunities are not “antithetical” to the rule of law. Ramachandran argued that immunities are a “distinct pillar in the constitutional edifice.

“He relied on Blackstone’s commentary to explain that the constitutional privilege was made to ensure that members are not “oppressed by the power of the crown” or, in this context, a “democratic executive.”

Ramachandran submitted that the legislators have “absolute protection” if there is a nexus between the act and their conduct in the assembly. He further highlighted that the Constitution has left the factor of “political morality” i.e. the moral implications in the hands of the Parliament. Speakers of the parliament have the power to expel members, he submitted.

He argued that “it is not for the court to find perfect solutions for all moral dilemmas.”

Article 105(2) says “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, ” Ramachandran submitted.

The seven-judge bench led by CJI D.Y. Chandrachud after hearing the arguments of parties for two days reserved its judgement on October 5, 2023, to ascertain the correctness of the Supreme Court’s decision in Narasimha Rao v State. (1998) which will be pronounced on March 4, 2024.

The bench’s decision will determine the scope of a legislator’s immunity in cases of bribery for a speech or a vote in Parliament or a legislative assembly.

Senior Advocates Gopal Sankaranarayanan and Vijay Hansaria, along with four other lawyers argued against the correctness of the majority opinion in Narasimha Rao vs state case.

Attorney General R. Venkataramani and Solicitor General Tushar Mehta argued against the majority opinion in succession.