Twenty-five years after a Constitution Bench of the Supreme Court inoculated MPs and MLAs who take kickbacks to vote or make speeches in a particular manner in the House from criminal prosecution, the Centre told a larger seven-judge Bench on Wednesday that the majority verdict in the infamous JMM bribery case was wrong and a lawmaker commits a crime the moment he accepts the pay-off, whether or not he makes good his promise in the House.
“The offence of bribery is complete the moment there is an offer of bribe outside the House and you [MP or MLA] accept the money. It does not matter if the legislator performs his part of the bargain inside the House. Criminality is attached the moment the bribe is accepted. The performance of the MP or MLA — whether he casts his vote or makes a speech to favour a particular interest — is irrelevant,” Solicitor General Tushar Mehta, for the Centre, addressed the Bench headed by Chief Justice of India D.Y. Chandrachud.
Mr. Mehta said the government’s stand was in tune with the minority view of Justice (retired) S.C. Agarwal on the Bench in the Jharkhand Mukti Morcha (JMM) bribery case in 1998. Justice Agarwal had clearly held that the protective cloak of immunity around an MP or MLA would not extend to bribes received outside the House. The Solicitor General said the court should now focus more on the Prevention of Corruption Act rather than the question of immunity.
The Bench led by Chief Justice Chandrachud is reviewing the JMM bribery case (P.V. Narasimha Rao versus State) judgment. In focus are Articles 105(2) and 194(2) of the Constitution. Both constitutional provisions protect lawmakers from criminal or civil proceedings in any court “in respect of” anything said or any vote given by him or her in Parliament/State Legislative Assemblies. The majority verdict of the five-judge Bench in the JMM bribery case had held that bribe-takers were immune from prosecution provided they go ahead and cast their vote or give the speech, which was a parliamentary function.
Chief Justice Chandrachud agreed the majority view had turned the anti-corruption law on its head.
“The majority [in the 1998 judgment] said legislators would have immunity irrespective of the criminality attached to the taking of a bribe… the only exception they make is for a person who does not fulfill his part of the bargain. If a person [MP/MLA] accepts a bribe and votes, then there is immunity. If a person accepts the bribe and does not fulfill the bargain by abstaining from the vote or does not give the speech, he or she is liable to be punished,” Chief Justice Chandrachud pointed out.
Mr. Mehta said the immunity under Articles 105(2) and 194(2) was meant to protect the independence of the legislators inside the House.
‘Free speech’
Agreeing, the Chief Justice said the objective of constitutional provisions was to “encourage free speech”.
“We must preserve the dialogue in the Parliament and the State legislatures. That is a very important part of our nation,” Chief Justice Chandrachud said.
Earlier, while referring the case to a seven-judge Bench, the Chief Justice had observed that the purpose of the immunity was not to “set apart” MPs/MLAs from ordinary citizens as far as the application of the criminal law was concerned.
The reference to a five-judge Bench, and now to a seven-judge Bench, came in an appeal filed by JMM leader Sita Soren, who was accused of taking a bribe to vote for a particular candidate in the Rajya Sabha elections of 2012. Though she later denied culpability on the ground that she voted for the official nominee of her own party, the CBI filed a chargesheet in the case. The Jharkhand High Court had refused to quash the chargesheet, following which she had moved the Supreme Court.
Ms. Soren is the daughter-in-law of JMM chief and former Union Minister Shibu Soren, who was involved in the alleged JMM bribery case.
In 1993, four JMM MLAs and eight other MPs were allegedly bribed to ensure the survival of the Rao government during a no-confidence vote. They voted accordingly, and when the scandal broke, claimed immunity from criminal prosecution because their act of voting had happened inside Parliament.
