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The Supreme Court said on Monday the 1998 verdict in the Jharkhand Mukti Morcha bribery case resulted in a "paradoxical outcome" as it rewarded a lawmaker who accepted the bribe and voted on agreed terms with immunity but prosecuted those who accepted illegal gratification but voted independently.
A seven-judge bench headed by Chief Justice DY Chandrachud, which overruled the 1998 verdict said, the majority judgement created an artificial distinction between those who received illegal gratification and performed their end of the bargain and those who received the same illegal gratification but did not carry out the agreed task.
"Indeed, to read Articles 105(2) and 194(2) in the manner proposed in the majority judgment (of 1998 verdict) results in a paradoxical outcome. Such an interpretation results in a situation where a legislator is rewarded with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but may eventually decide to vote independently will be prosecuted," it said.
The bench, also comprising Justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra, said such an interpretation belied not only the text of Articles 105 and 194 but also the purpose of conferring parliamentary privilege on members of the legislature.
Articles 105 and 194 deal with the powers and privileges of MPs and MLAs.
The minority judgment of the 1998 verdict has highlighted the prima facie absurdity in the paradox created by the majority judgment, it said.
The bench said under Section 7 of the Prevention of Corruption Act, the mere obtaining, accepting or attempting to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence and it is not necessary that the act for which the bribe is given be actually performed.
"In the formulation of a legislator accepting a bribe, it does not matter whether she votes in the agreed direction or votes at all. At the point in time when she accepts the bribe, the offence of bribery is complete," it said.
The bench, in its 135-page verdict, "The purpose of the proceedings which a House may conduct is to restore its dignity. Such a proceeding may result in the expulsion from the membership of the House and other consequences which the law envisages. Prosecution for an offence operates in a distinct area involving a violation of a criminal statute," it said.
The bench said the power to punish for criminal wrongdoing emanates from the power of the State to prosecute offenders who violate the criminal law and it applies uniformly to everyone subject to the sanctions of the criminal law of the land.
"The purpose, consequences, and effect of the two jurisdictions are separate. A criminal trial differs from contempt of the House as it is fully dressed with procedural safeguards, rules of evidence and the principles of natural justice," it said, while rejecting the submission that the jurisdiction of the House excludes that of the criminal court for prosecuting an offence under the criminal law of the land.
The bench said a member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote.
"This action may bring indignity to the House of Parliament or Legislature and may also attract prosecution. What it does not attract is the immunity given to the essential and necessary functions of a member of Parliament or Legislature," it said.
The bench said prosecution for bribery is not excluded from the jurisdiction of the criminal court merely because it may also be treated by the House as contempt or a breach of its privilege.
"Therefore, we hold that clause (2) of Article 105 does not grant immunity against bribery to any person as the receipt of or agreement to receive illegal gratification is not "in respect of" the function of a member to speak or vote in the House," it said.
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 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."
The bench also referred to international position and law on parliamentary privileges in countries like the UK, the US, Canada and Australia.
It said the courts in the UK have held that its jurisdiction is not ousted by the immunity of members or the ability of the House to take contempt action against bribery.