New Delhi: The Supreme Court Wednesday said it will examine whether the immunity granted to lawmakers (MPs/MLAs) is available if there was criminality attached to their acts. However, the apex court said it will restrict itself to the question of re-examining the question of privileges only so far as the offence of bribery is concerned.
A constitution bench of seven judges headed by Chief Justice D Y Chandrachud said “We have to deal with the immunity as well and decide a narrow issue, can the immunity (to the lawmakers) be attached when there is an element of criminality”.
The top court began the hearing to reconsider its 1998 verdict granting MPs and MLAs immunity from prosecution for taking bribes to make a speech or vote in Parliament and state assemblies.
At the beginning of the hearing, Solicitor General Tushar Mehta, representing the Centre, said that the controversy can be possibly narrowed down in view of the fact that the offence of bribery is complete when a bribe is given and accepted by the lawmaker.
Mehta said both majority and minority opinions (in Rao judgment) go into two aspects – immunity etc under Article 105 and Prevention of Corruption Act as to when the offence is complete.
That is the statutory position prior to the amendment of the PC Act in 2017 and even thereafter, and Rao is before 2017, he said, adding that the PC Act was amended thereafter in 2017 and the offence of bribery is complete “when I offer money to an MP or MLA and they accept”.
Mehta said whether the lawmaker performs the criminal act is irrelevant for the question of criminality and it is a question under the Prevention of Corruption Act, instead of Article 105 – which is regarding the immunity available to the lawmakers.
The bench – also comprising justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra – said it was held that irrespective of the criminality, immunity is available to the lawmakers, while it referred to the 1998 judgment.
The bench said it should not be entering on issues which strictly don’t arise before it, and “we will not revisit except on the issue of bribery”.
The apex court is re-examining the “the correctness” of a 1998 five-judge constitution bench judgment in the P V Narasimha Rao case, where the majority had held that legislators were immune to prosecution on bribery charges for their speech or vote in Parliament.
Mehta said both him and Attorney General R Venkataramani would be arguing that the minority view in the Rao case by justice S C Agarwal “is the correct view”.
The Chief Justice said the majority has held that irrespective of the criminality, immunity attaches and the only exception they made was to a person who does not fulfil their part of the bargain.
The bench observed that they said the words used in Article 105 are in the past tense, votes given or speech made, therefore they say if there is no vote cast or no speech made though the bribe was taken, then there is no immunity.
The bench said it will ultimately have to deal with the issue of immunity as well as to whether they are right on the broader immunity, and also look at all the circumstances, what is the extent of the immunity enjoyed. “We have to decide a very narrow issue, will immunity be attached when there is an element of criminality?” It asked.
Mehta said whether the lawmaker voted or did not vote or whether he spoke or did not speak “may not have relevance because the offence is committed outside the House”, and in this case the privilege question will not arise. Mehta said the interpretation of the PC Act may be more relevant than Article 105.
Citing the majority judgment in Rao’s case, the bench said “the question is therefore whether you stretch that... to cover an underlying motive or an underlying consideration being criminal, as also being immune”.
It further added that, or does it stop with the vote cast or the speech which is given? And does it really also extend to the possible criminal demeanours in the casting of the vote or the giving of the speech?
Senior advocate Raju Ramachandran, representing the appellant Jharkhand MLA Sita Soren, requested the court not to interfere with “a carefully considered and well-reasoned judgment”, and the judgment “was not unconscious of constitutional morality and there is no ground to upset the view taken”.
Senior Advocate P S Patwalia, amicus curiae in the case, said “what is essential for the court to see is what is the object and what is the purpose for which this immunity has been granted under Article 105. Patwalia said, according to his understanding, the object is not to give protection to an individual from ordinary criminal laws.
The Chief Justice said there will be a problem in saying that the immunity attaches only where there is an overt act in the form of a vote given or speech made. He gave an example, suppose an MP criticises plastic manufacturers association and the general secretary of the association says its falsehood and sues him for damages.
The Chief Justice said now look at it another way, suppose somebody files a suit against an MP saying that by keeping quiet on such an important issue, you have made yourself liable for an action in tort or civil wrong, can that MP not say I didn’t speak and I am equally immune?
Patwalia replied that the MP can claim immunity and the important point is the participation. The Chief Justice said that even remaining quiet is participation.
The matter was posted for further hearing on Thursday.
In 2019, a bench led by then chief justice Ranjan Gogoi, which 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, had referred to a five-judge bench the crucial question, noting it had “wide ramification” and was of “substantial public importance”.
