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Nullify order shielding lawmakers in cash-for-votes, Centre urges SC

Oct 06, 2023 02:50 AM IST

The bench was dealing with the issue of whether immunity granted to lawmakers is available if there was criminality attached to their acts.

The Union government on Thursday implored the Supreme Court to nullify the precedential value of a 1998 ruling that allowed lawmakers to go scot-free after receiving bribe for casting votes or making speeches on the floor of the House, emphasising that any act of bribery outside legislative Houses are prosecutable under the Prevention of Corruption (PC) Act.

The Union government implores the Supreme Court to nullify order that shields lawmakers after receiving bribes for casting votes in the House. (ANI)
The Union government implores the Supreme Court to nullify order that shields lawmakers after receiving bribes for casting votes in the House. (ANI)

Read here: No immunity for cash for vote: Centre clarifies its stand in Supreme Court

While making the request to declare the 25-year-old judgment in the PV Narasimha Rao Vs State (CBI) case “per incuriam” (rendered in ignorance of a statute), the Centre also proposed that an in-house committee, to be coined as “speech and vote watch”, could be a worthwhile alternative to the judicially mandated guidelines that the seven-judge Constitution bench may consider.

As the bench reserved its verdict on the correctness of the 1998 ruling, the Centre maintained that the controversy could be resolved by the top court holding that the Narasimha Rao judgment is “per incuriam” because it failed to take into account the statutory scheme of the PC Act, which criminalises an act of bribery if takes place outside legislative Houses.

“Instead of declaring Rao not to be a good law, this court may have an option of saying that it is per incuriam because it doesn’t take into account the statutory scheme of the PC Act...When everything is outside the House, there is no question of privilege being claimed or immunity being established as a defence,” solicitor general Tushar Mehta submitted before the bench led by Chief Justice of India Dhananjaya Y Chandrachud.

Mehta stressed the point that the bench should confine itself to the limited point of declaring that the 1998 judgment should not be treated as a precedent by any other court whenever an issue of a member of Parliament or state legislatures accepting bribe is concerned, and that there was no need to delve into the larger issue of immunity granted to the lawmakers under Articles 105(2) and 194(2) of the Constitution. Article 105(2) lays down that 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. A corresponding provision giving immunity to members of state legislatures is contained under Article 194(2).

Attorney general R Venkataraman was more emphatic in asking the court to refrain from issuing any “inflexible norms” in the matter, arguing that the remit of prescribing enforceable norms should be with Parliament and state legislatures considering the purpose and objective of the constitutional protection and the varied roles that a legislator is expected to perform inside as well as outside the House.

“It can be said that conduct which is otherwise unlawful will not ordinarily receive the protection against liabilities. However, as matter of prudence and without sacrificing ethical and moral standards in the political field, it would be worthwhile to propose an in-house committee of the respective legislatures to be the ‘speech and vote’ watch, whose recommendations can be basis for all liabilities,” Venkataramani told the bench, which also comprised justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Misra.

The A-G cited the Tenth Schedule of the Constitution as a “parallel”. The Tenth Schedule relates to the anti-defection law, which empowers the Speaker to act as a tribunal to decide such complaints and rule on disqualification of a legislator.

“While the desirability of delineating and setting down the principles which may govern the scope and application of the ‘speech and vote’ clause, is not to be doubted, the matter of laying down enforceable norms, may warrant a wide debate and legislative interventions, including intervention by state legislatures, having regard to the multitude of functions of legislative bodies, discharged both directly and through their committee proceedings,” Venkataramani added.

Even as the A-G requested the court to keep in mind a spectrum of relevant factors, including overlapping of legislative and political activities of a legislator, he clarified that anything that is clearly proscribed by statute cannot have a refuge under Articles 105 and 194. “I don’t think any responsible government or public authority can take that stand,” he added.

After hearing the two sides, the Constitution bench on Thursday reserved its verdict on the correctness of the 1998 decision by a five-judge bench, which by 3-2 majority, had held that MPs and MLAs accepting bribes and voting or asking questions in the House would enjoy immunity under the Constitution.

The bench was dealing with the issue of whether immunity granted to lawmakers is available if there was criminality attached to their acts. The Centre’s statement made it clear that it would not press for any parliamentary privilege in cases of bribery.

On September 20, the top court decided to have a relook at the 1998 judgment in the Narasimha Rao case after the judgment 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. The 1998 judgment, curiously, protected those lawmakers who vote or ask questions after receiving bribes, but it did not protect those who received bribes but did not keep their end of the bargain.

On Wednesday, as the seven-judge bench commenced the hearing, S-G Mehta stood up to convey the Centre’s stand. While it is necessary to protect legislators in the discharge of their legislative and deliberative functions, Mehta said, the immunity available to MPs and MLAs under the Constitution cannot shield them from prosecution under the PC Act if they accept bribes to vote or ask questions on the floor of the House.

Citing Section 7 of the PC Act, the S-G had on Wednesday added the offence of bribery can be said to be complete independent of, and without reference to, “anything said or any vote given” in Parliament or state legislature, no question of any legislative privilege being attracted can arise if the member is prosecuted for taking a bribe for the speech or vote. Section 7 prescribes punishment up to seven years in jail.

Senior advocate Raju Ramachandran, appearing for Sita Soren, opposed a review of the 1998 judgment, contending that issues of constitutional privileges and immunities are not in derogation to the rule of law but a distinct pillar in constitutional edifice to protect lawmakers who are also prone to political persecution.

Senior advocate PS Patwalia, who appeared in the matter as amicus curiae, also supported the view that there must not be any immunity for a legislator accepting bribes. Senior counsel Gopal Sankaranarayanan, representing intervenor in the case, advocate Ashwini Upadhyay, echoed Patwalia’s view.

Read here: Cash-for-vote: Supreme Court notifies bench to reconsider 1998 ruling

The 1998 judgment came in the backdrop of the Jharkhand Mukti Morcha bribery scandal that rocked the Congress government, headed by PV Narasimha Rao in 1993. The Narasimha Rao government allegedly bribed several parliamentarians across parties to defeat a no-confidence motion.

The top court, in a 3-2 verdict, decided in 1998 that MPs who took the bribe and voted in the House could not be prosecuted as they enjoyed immunity under Article 105(2) of the Constitution. However, such protection will not be available to an MP who received a bribe but abstained from voting or making a speech, the judgment added. It was this anomaly that led the court to clear prosecution of then MP Ajit Singh, who allegedly took a bribe but abstained from voting.

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