Immunity of legislators
Source: By Khadija Khan: The Indian Express
The Supreme Court 20 September 2023 referred to a seven-judge bench on the question of whether the legal immunity of legislators under Articles 105(2) and 194(2) of the Constitution protects them from being prosecuted in a criminal court for the offence of offering or accepting a bribe.
Observing the need to examine the “correctness” of its 1998 constitution bench ruling in PV Narasimha Rao vs. State, a five-judge Bench led by Chief Justice of India DY Chandrachud referred the verdict to a larger bench for fresh consideration. In its 1998 ruling, the top court had held that legislators have immunity against criminal prosecution on bribery charges for any speech or vote in Parliament.
What are the provisions that grant legislators immunity from prosecution?
Broadly, Article 105 of the Constitution deals with the “powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof”.
Article 105(2) states, “No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”
In a nutshell, this provision exempts MPs from any legal action for any statement made or act done in the course of their duties. For example, a defamation suit cannot be filed for a statement made in the House.
Additionally, this immunity extends to certain non-members, like the Attorney General of India or a Minister who may not be a member but speaks in the House. In cases where a member oversteps or exceeds the contours of admissible free speech, the Speaker of the House will deal with it, as opposed to the court.
Meanwhile, Article 194(2) extends this immunity to MLAs and states, “No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings.”
In the present case, the court has to decide if the legal immunity enjoyed by parliamentarians extends to prosecution for demanding or taking a bribe.
What is the current case with the SC?
The case arose out of a plea filed by Sita Soren, a member of the Jharkhand Mukti Morcha (JMM), who was accused of accepting a bribe to cast her vote for a certain candidate in the Rajya Sabha elections of 2012.
After these accusations came to the forefront, a complaint was filed before the Chief Election Commissioner of India to conduct a CBI probe in this case. Subsequently, the Central Bureau of Investigation (CBI) filed its chargesheet against Soren, accusing her of various offences under the IPC and the Prevention of Corruption Act, 1988, such as bribery, criminal conspiracy, and criminal misconduct by a public servant.
Seeking to quash the chargesheet and the criminal proceedings against her, Soren approached the Jharkhand HC, contending that she was protected by the immunity granted to her by Article 194(2). However, her plea was rejected by the Jharkhand High Court in 2014. This led her to petition the apex court against the High Court’s order.
What has the SC said?
In 2014, when Soren approached the SC, a two-judge Bench had noted that since the issue was “substantial and of general public importance”, it should be placed before a larger Bench of three judges.
On 7 March 2019, a three-judge Bench led by then CJI Ranjan Gogoi took up the appeal and observed that the Jharkhand HC judgement dealt with the 1988 Narasimha Rao verdict and hence should be referred to a larger Bench. In the 1988 case, the court held that parliamentarians are entitled to immunity from criminal prosecution when it comes to their speech and votes in the House.
Finally taking up the matter, the 5-judge Bench, also comprising Justices AS Bopanna, MM Sundresh, JB Pardiwala, and Manoj Misra, said, “We are of the considered view that the correctness of the view of the majority in P V Narasimha Rao (case) should be reconsidered by a larger Bench of seven judges.” It said it is an “important issue that concerns our polity.”
The court also added that the purpose of Articles 105(2) and 194(2) is to ensure that members of Parliament and state legislatures can discharge their duties in an atmosphere of freedom without fearing the consequences that may ensue for how they speak or exercise their right to vote on the floor of the House. “The object clearly is not to set apart the members of the Legislature as persons who wield higher privileges in terms of immunity from the application of the general criminal law of the land,” the Bench said.
What was the 1998 ruling that the SC is referring to?
The PV Narasimha Rao case refers to the 1993 JMM bribery case concerning Shibu Soren, who also happens to be the father-in-law of Sita Soren, the petitioner in the present case. In Shibu’s case, he, along with some of his party MPs, was accused of taking bribes to vote against the no-confidence motion against the then PV Narasimha Rao government.
Out of the five judges on the Bench in this case, two opined that protection under Article 105(2) or 194(2) and the immunity granted could not extend to cases concerning bribery for making a speech or vote in a particular manner in the House.
However, the majority view was that while the court was “acutely conscious of the seriousness of the offence”, the Bench’s “sense of indignation” should not lead to a narrow construction of the constitutional provisions, as this may result in hampering the guarantee of “parliamentary participation and debate”.
Thus, the top court in 1998 quashed the case against the JMM MPs, citing immunity under Article 105(2). Essentially, this five-judge bench ruling saved Soren from criminal prosecution
