7 judges to hear ‘cash for votes’
In March 2019, a three-judge bench referred the appeal to a five-judge bench as it involved the interpretation of the 1998 decision
The Supreme Court on Wednesday agreed to examine the correctness of a 25-year old decision by a five-judge bench which held that members of Parliament accepting bribes and voting or asking questions in the House will enjoy immunity available to legislators under the Constitution.
The court reasoned that the object of having such immunity can never be to set apart legislators as persons wielding higher privileges in claiming immunity from the application of criminal law that common citizens do not possess. Instead, the immunity is to institutionalise their right to free speech and expression under Article 19(1)(a) of the Constitution in an atmosphere of freedom without fear of consequences that may follow.
A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud agreed to have a relook at the 1998 Constitution bench decision in PV Narasimha Rao v State after the decision was relied upon by a former member of the Jharkhand assembly, Sita Soren of the Jharkhand Mukti Morcha (JMM), who allegedly accepted a bribe from an independent candidate for voting in the Rajya Sabha elections of 2012.
She sought immunity from being prosecuted for the offence citing Article 194(2) of Constitution which grants immunity to MLAs for any speech made or vote cast in the House. The provision states, “No member of the legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the legislature or any committee thereof.” The corresponding provision giving immunity to members of Parliament is contained in Article 105(2).
In March 2019, a three-judge bench referred the appeal to a five-judge bench as it involved the interpretation of the 1998 decision.
Dealing with the appeal, the CJI-headed bench said, “Prima facie at this stage, we are of the considered view that the correctness of the majority view taken in PV Narasimha Rao case should be considered by a larger bench of seven judges.”
The top court noted an anomaly that while the 1998 decision protected those MPs who vote after receiving bribe, it did not extend the protection to such members who received a bribe but abstained from voting. Notably, the 1998 decision did not extend immunity to then member of Parliament Ajit Singh who allegedly took a bribe but abstained from voting in the House. Further, the order passed on Wednesday said that the majority decision in the 1998 case did not discuss the minority view of two judges who said that the offence of bribery is complete when a legislator is proved to have accepted money and later conduct in the House is irrelevant.
The bench, also comprising justices AS Bopanna, MM Sundresh, JB Pardiwala and Manoj Misra said that the purpose of Articles 105(2) and 194(2), dealing with rights and privileges of legislators, is not to render immunity from launch of criminal proceedings for violation of criminal law that arises independent of the exercise of rights and duties as MPs or MLAs.
“The purpose of Article 105(2) and 194(2) is to ensure that members of Parliament and assemblies are able to discharge duties in an atmosphere of freedom without fear of the consequences that may follow,” it said. “The object clearly is not to set apart the members of the legislature as persons who wield higher privileges in terms of immunity from the application of the general criminal law of the land which citizens of the land do not possess.”
Attorney General R Venkatramani did not support the reference and said that the question of correctness of the 1998 decision does not arise in the facts of the present case. According to him, Sita Soren is not be entitled to any immunity under Article 194 as only the voting for Rajya Sabha election took place in the precincts of the House and cannot be considered as part of “proceedings of the House”. He said that her appeal fails on this ground alone.
In his note submitted to the Court, AG said, “The process of election to the Council of States is not a matter of business or function or work of the House. It is regulated by rules and procedures to be supervised by the competent authority.” He qualified it further by saying, “Casting a vote for the purpose of election of members to the Council of States is not to be equated with the words “vote in the legislature”. Conduct unconnected with the legislative function or business of the house cannot aspire to be covered by the immunity clauses of the Constitution.”
For Soren, senior advocate Raju Ramachandran along with advocate Vivek Singh relied on the 1998 decision and claimed immunity would apply to her as she did not vote for the person alleged to have paid her bribe.
Refusing to accept the submission of AG and Ramachandran, the bench said, “Apart from the significance of issues raised to be explained later, we are not inclined to accept the plea that the reference of the PV Narasimha Rao judgment does not arise in this case.”
Interestingly, the top court has on two occasions in the past refused to reopen the 1998 decision decided by a 3:2 majority. A review petition filed by Central Bureau of Investigation (CBI) challenging the majority view of the judgment was dismissed in 2001 on ground of delay. A year later, in July 2002, a writ petition filed by NGO Centre for Public Interest Litigation (CPIL) questioning the decision was not entertained as only a curative petition would lie after dismissal of review petition.
The Court said, “If it is an issue that deeply affects the morality of our legislators, we should take a call to straighten the law. If it furthers public morality on part of our legislators, we should not leave it to a time in future.”
The Court indicated that it would be setting up the seven-judge bench within two weeks and said, “God knows when this opportunity (to reconsider the 1998 judgment) will again arise for reconsideration.”
The order passed by the Court also cited the minority view of the 1998 decision which held the contrary view that immunity cannot extend to acts of bribery. The 1998 decision came in the context of bribes being paid to members of Parliament for defeating a no confidence motion in Parliament.
The reference was supported by Court-appointed amicus curiae and senior advocate PS Patwalia who showed how the immunity available under Articles 102 and 194 cannot act as a shield from criminal prosecution as bribery stands proved outside the House when the member has accepted cash or consideration to vote in a particular manner.
This also ends the dichotomy between a person who accepts bribe and votes and enjoys immunity as distinct from a person who may abstain from voting on second thoughts after receiving bribe and face prosecution, said senior advocate Gopal Sankaranarayanan appearing for an intervenor Ashwini Kumar Upadhyay who supported reference to a larger bench. These arguments weighed with the Court in passing the final order.Moreover, the Court noted that the order referring Soren’s appeal to a five-judge bench had observed that the matter raised “issues of substantial public importance” and thus required consideration. Soren had earlier failed to get relief from the Jharkhand high court which declined to grant her immunity under Article 194 in February 2013 which led to the appeal filed before the top court that same year.