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Bribery can never be a subject matter of immunity and parliamentary privilege is not meant to place a lawmaker above the law, the Centre on Thursday told the Supreme Court which reserved its verdict on reconsideration of its judgment of 1998 when it held that MPs and MLAs enjoy immunity from prosecution for taking bribe to make a speech or cast a vote in legislature.
Attorney General R Venkataramani and Solicitor General Tushar Mehta conveyed the Centre's stand before a seven seven-judge Constitution bench headed by Chief Justice D Y Chandraachud.
”This is my respectful submission that bribery can never be the subject matter of immunity unless even one out of 1000 cases (of bribery) takes place inside the house,” Mehta told the bench, which also comprised justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra.
Mehta urged the court to not go into the immunity aspect under Article 105 of the Constitution and said, ”The offence of bribery is complete when a bribe is given and accepted by the lawmaker. It can be tackled under the Prevention of Corruption Act.”
”I am of the opinion that anything that is clearly proscribed by the statute, cannot have a refuge under these Articles (105 and 194). I do not think any responsible government or public authority can take that stand,” attorney general Venkataramani said.
The top-most government law officer, however, added that the elected representative must be free to perform legislative functions without being impaired or exposed to undue ”exertions and coercion”.
”Parliamentary privileges are not personal immunity but occupational immunity. They are provided to ensure that the duties of representatives may be carried out perfectly. This immunity is not meant to place a member of Parliament above the law, but to protect him from possible groundless proceedings or accusations that may be politically motivated...,” solicitor general Mehta said.
At the outset, senior advocate Gopal Sankarnarayanan referred to several judgements and said the consistent point in all was that ”nobody enjoys protection against criminal prosecution".
He dealt with the submission that legislators needed immunity as they were often targeted for their acts inside the House.
”So, while balancing this, you (SC) have to be careful of ensuring that legislators get the immunity which the Constitution intended... If we are doing that, then we have to have some kind of formulation or test on the basis of which we determine the immunity that is deserved,” he said.
He then referred to the recent alleged hate speech made by BJP MP Ramesh Bidhuri in the Lok Sabha and said, "Unfortunately, Your Lordships must have seen a live example of his two weeks ago, when a gentleman hurled expletives in Parliament. I don't know if the phrase 'parliamentary language' can be used anymore after this.”
Parliament ensured that those words were struck off, but in my view it was a crime, he said.
”So an action of criminal defamation would not lie on the basis of the speech?” the bench asked the lawyer.
The senior lawyer responded, ”In my view, no. Our hands are tied. Obviously, we find it repulsive. The court's hands are also tied because that is the deference we give to the parliamentary process.”
The bench said, possibly the court cannot get into this and say that these offending words of the MP were ”unnecessary for the speech”.
”We expect responsible Parliament and parliamentarians to expect more stringent action,” the senior lawyer said.
Another senior advocate, Vijay Hasaria, supported the reconsideration of the 1998 verdict and gave the example of pendency of more than 5,000 criminal cases against lawmakers.
The court told him it was dealing with the limited issue of bribery in relation to votes cast and speeches made in legislatures.
”Privilege must be interpreted in a manner that will not let criminality among politicians or political class flourish, and will curb criminalisation of politics,” he said.
The solicitor general focussed his submissions on the offence of bribery as defined under the Prevention of Corruption Act and said if the offence is completed outside the House, then the court does not need to go into the aspect of immunity enjoyed by a lawmaker for acts done inside the legislature.
”Of course, this is on a very strong footing that bribery is complete outside the house,” the bench said.
”If offence is said to be complete independently under Section 7 of the PC Act then, there cannot be any question of privilege or immunity,” Mehta reiterated, and added, ”It is nobody's case that there should not be privilege or immunity. Performance of legislative duty fearlessly is the object of the provisions. But the only question is whether bribery should be covered by this privilege or immunity.”
The judgment in the case was reserved after two day-long arguments advanced by a battery of lawyers including the attorney general, solicitor general, Raju Ramachandran and amicus curiae P S Patwalia, who was assisting the court in the matter.
The seven-judge bench is reconsidering the 1998 verdict delivered in the JMM bribery case by a five-judge bench by which the MPs and MLAs were granted immunity from prosecution for taking bribes to make a speech or vote in legislature.
The apex court is revisiting the judgment 25 years after the JMM bribery scandal rocked the country.
On Wednesday, the court said it will examine whether the immunity granted to lawmakers from prosecution for taking bribes to make a speech or vote in Parliament and state legislatures extends to them even if criminality is attached to their actions.
The apex court had on September 20 agreed to reconsider its judgment, saying it was an important issue having a significant bearing on "morality of polity".
A five-judge bench of the apex court had decided to refer the issue to a larger seven-judge bench.
A five-judge Constitution bench had in its majority verdict delivered in the PV Narasimha Rao versus CBI case held that parliamentarians have immunity against criminal prosecution for any speech made and vote cast inside the House under Article 105(2) and Article 194(2) of the Constitution.
The issue came under the Supreme Court's lens again in 2019, when 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 scandal.
The Justice Gogoi-led bench had referred to a five-judge bench the crucial question, noting it had "wide ramification" and was of "substantial public importance".
Sita Soren was accused of taking bribe 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 three-judge bench had then said it will revisit the SC verdict in the sensational 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 Narasimha Rao government, which was in a minority, survived the no-confidence vote with their support.
The CBI registered a case against Soren and four other JMM Lok Sabha MPs but the Supreme Court quashed it citing immunity from prosecution they enjoyed under Article 105(2) of the Constitution.