The Supreme Court’s seven-judge bench of Chief Justice of India DY Chandrachud, and Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar, and Manoj Misra on March 4 held that the Members of Parliament and legislative assemblies cannot claim immunity for receiving bribes for vote or speech in the legislature.
It was on September 25 last year that the Supreme Court of India decided that a Constitution Bench comprising seven judges would hear the appeal against its 1998 judgment that provided immunity to the MPs under Articles 105(2) and 194(2) for taking bribes to make a speech or vote in parliament and state legislatures.
The SC held, “We disagree with and overrule the judgment of the majority on this aspect. We have concluded that first, the doctrine of stare decisis is not an inflexible rule of law. A larger bench of this court may reconsider a previous decision in appropriate cases bearing in mind the tests which have been formulated by this court. The judgment in the PV Narasimha Rao case, which grants immunity from prosecution to a member of a legislature who has allegedly engaged in bribery for casting a vote or making a speech has wide ramifications on public interest, probity in public life, and parliamentary democracy. There is a grave danger of this court allowing the error to be perpetuated if the decision were not reconsidered".
It further added, “Articles 105 and 194 of the Constitution seek to sustain an environment where debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a particular manner because of an act of bribery…Bribery is not rendered immune under Articles 105 or 194 because a member engaging in bribery indulges in a criminal act which is not essential for the function of casting a vote or giving a speech in the legislature. Corruption and bribery by members of the legislatures erode probity in public life…We hold that bribery is not protected by Parliamentary privileges".
What was the 1998 Judgment?
By a majority of 3:2, the five-judge bench of the apex court in 1998 PV Narasimha Rao vs State held that the Members of Parliament or state legislatures were immune from prosecution in bribery cases revolving around any speech or vote in the house, as they have parliamentary privilege conferred by Articles 105(2) and 194(2) of the Constitution.
The verdict was doubted in an appeal by Jharkhand Mukti Morcha leader Sita Soren who was accused of accepting a bribe for a 2012 Rajya Sabha vote. She claimed immunity under Article 194(2) of the Constitution, but the Jharkhand High Court dismissed her plea, after which she moved the Supreme Court. After a two-day-long hearing, the seven-judge bench reserved its verdict last October.
Let’s take a look at the privileges that the MPs are conferred with.
Parliamentary privileges can be divided into two broad categories: (1) Collective Privileges and (2) Individual Privileges, which mean privileges enjoyed by the members individually and those which belong to the House as a collective body respectively.
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, 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.
Article 194(2): 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.
Freedom from Arrest
Section 135A of the Code of Civil Procedure, 1908 exempts a member legislative body from arrest and detention under civil process. It states: (1) No person shall be liable to arrest or detention in prison under civil process.
(a) if he is a member of (i) either House of Parliament, or (ii) the Legislative Assembly or Legislative Council of a State, or (iii) a Legislative Assembly of a Union territory, during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;
(b) if he is a member of any committee of— (i) either House of Parliament, or (ii) the Legislative Assembly of a State or Union territory, or (iii) the Legislative Council of a State, during the continuance of any meeting of such committee;
(c) if he is a member of— (i) either House of Parliament, or (ii) a Legislative Assembly or Legislative Council of a State having both such Houses, during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or, Houses of the State Legislature, as the case may be, and during the 40 days before and after such meeting, sitting or conference.
According to DD Basu, another privilege that legislators enjoy is ‘Freedom from Attendance as Witness’. Basu writes in his book ‘Introduction to the Constitution of India’ that “according to the English practice, a member cannot be summoned, without the leave of the house, to give evidence as a witness while the Parliament is in session.
Article 105 of the Indian Constitution is an important article that mentions the privilege conferred to the Members of Parliament or the State Legislatures. The article reads: (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(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, 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.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act,1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
It means that the Constitution has extended these privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees. These include the Attorney General and Union Ministers.
M Laxmikant in his book ‘Indian Polity’ writes that Parliament till now has not made any special law to exhaustively codify all the privileges. They are based on five sources that include (1) Constitutional provisions (2) Various laws made by the Parliament (3) Rules of both the houses (4) Parliamentary conventions (5) Judicial interpretations.
While overruling the earlier judgment, the bench observed that “Bribery is not rendered immune under Article 105 (2) or 194 of the Constitution and it erodes probity in public life".
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