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'SC should reconsider its ruling in JMM case'

delhi Updated: Sep 13, 2011 23:33 IST
Satya Prakash
Satya Prakash
Hindustan Times
Satya Prakash

Four JMM leaders’ admissions before the Income Tax Appellate Tribunal that they received money from the Congress to save the Narasimha Rao government in 1993, has raised several questions of political morality and constitutional propriety.

Should there be blanket protection to MPs from prosecution for their conduct in the House even when they act in the manner the JMM MPs did?

Article 105(2) of the Constitution states: “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 provision is aimed at ensuring MPs’ 'freedom of speech' and 'right to vote' and making them immune to prosecution for anything said or any vote given in the House. It does not expressly cover the conduct of MPs outside Parliament.

Can Article 105(2) afford protection to MPs taking bribe to vote in a particular manner or to ask a question in the House?

On April 17, 1998, a five-judge Constitution Bench of the SC delivered a strange verdict which, many feel, defies constitutional logic and political morality. By a majority of 3:2, the SC held that the MPs who voted against the July 28, 1993, no-confidence motion after taking bribe were immune to prosecution under Article 105(2) and could not be tried for bribery and criminal conspiracy in the JMM bribery case.

But it held that those MPs who accepted the bribe but chose to abstain were liable to prosecution. It ruled that the bribe-giving MPs were also liable to prosecution for corruption. Interestingly, the SC dismissed a petition seeking review of the ruling on the ground of delay.

But the SC’s interpretation of Article 105(2) has become untenable after its 2007 verdict, upholding Parliament’s decision to expel 12 MPs in ‘cash-for-query’ scam.

If an MP can be expelled from Parliament and prosecuted for taking bribe to ask a question in the House, why can’t he/she meet the same fate for taking money to vote in a particular manner in the House?

Should SC revisit its ruling in JMM case? “Yes,” says Prof. C Raj Kumar, dean of Jindal Global Law School. “Article 105(2) could not have been envisaged to provide immunity to MPs for bribes received in the course of exercising their legislative duties. It doesn't make sense for constitutional protection to be offered to anybody, let alone MPs, for subverting the constitutional process by engaging in bribery or corruption for their actions in Parliament,” Kumar said.