The Supreme Court on Wednesday said it would re-examine its 1998 judgement granting immunity to lawmakers from prosecution for taking bribe to make a vote or a speech in the house.
The five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) DY Chandrachud said a seven-judge bench would be set up to examine the matter in a fresh manner.
In 1998, a five-judge bench of the Supreme Court ruled that MPs and MLAs have total immunity in all matters related to voting in the house, which means they are immune to prosecution even if they have taken bribe to cast a vote. Now, that judgement is set to be re-examined.
Here we explain the case that led to the 1998 judgement, what legal and constitutional provisions are involved, and what the road ahead is expected to be.
What was the 1998 judgement?
In 1998, the Supreme Court delivered a judgement in the Jharkhand Mukti Morcha (JMM) bribery case.
The case was related to taking of bribe by five JMM MPs, including the party patriarch Shibu Soren, in 1993 to vote against the no-confidence motion faced by the Congress government led by Prime Minister PV Narasimha Rao. The Rao-led government, which was in minority in Lok Sabha, survived the motion. The CBI registered a case against five JMM MPs, which was quashed by a five-judge bench of the Supreme Court in 1998.
The Supreme Court ruled that, as par Article 105 (2) of the Constitution of India, the actions of the MPs related to a speech made or a vote cast in the hall are immune from any prosecution.
Article 105 (2) states, "No member of Parliament shall be liable to any proceedings in any court in respect of any thing 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."
In the same case, however, Ajit Singh was convicted, notes SC Observer, as he had taken a bribe but had not cast a vote, which meant he did not have any immunity.
"In its 1998 judgment, the Supreme Court didn’t extend immunity under Article 105(2) to one of the accused – Ajit Singh. Unlike those who enjoyed immunity under Article 105(2), Singh never cast a vote. The Supreme Court reasoned that this prevented him from claiming protection under Article 105(2)," notes SC Observer.
Why is the SC re-examining the JMM bribery case order?
The Supreme Court has decided to re-examine the JMM bribery case judgement while hearing an appeal in a case related to the taking of a bribe by an MLA in 2012 for vote in the Rajya Sabha elections.
Incidentally, the MLA in the 2012 bribery case is Sita Soren, an MLA from JMM at the time and daughter-in-law of Shibu Soren, who was involved in the earlier bribery case decided in 1998. She allegedly took bribe to vote for one candidate but voted for another.
A case was subsequently filed against Sita and the Jharkhand High Court in 2014 ruled that she is not immune from prosecution. She challenged the case in the Supreme Court and the matter came before a three-judge bench of the Supreme Court.
"The High Court interpreted this to mean that there must be a nexus between the bribe and the vote. It held that there was no nexus between the bribe [Sita] Soren received and the vote she cast. While Soren allegedly took a bribe to vote for candidate ‘X’, she ultimately voted for candidate ‘Y’. Drawing parallels to Ajit Singh, the High Court held she couldn’t claim immunity under Article 194(2), as the bribe she received did not influence her vote. Further, the allegations were made against her even before she voted," notes SC Observer.
In 2019, a three-judge bench of the Supreme Court referred the matter to a five-judge bench. This is how the matter reached the five-judge Constitution Bench headed by CJI Chandrachud.
Now, in 2023, the Constitution Bench of the Supreme Court has referred the case to a seven-judge bench that would finally re-examine whether lawmakers are immune from prosecution if they take bribe to cast a vote.
What did the Supreme Court say while ordering re-examination?
The five-judge Constitution Bench of the Supreme Court noted that this was an opportunity to "straighten the law".
The Supreme Court also set the purpose of the immunity from prosecution is to provide for the freedom of speech without fear of consequences to lawmakers and not to provide them a higher degree of freedom that the rest of the people do not have, as per PTI.
The SC said, "We are of the considered view that correctness of the view of the majority in PV (Narasimha Rao case) be reconsidered by a bench of seven judges. The purpose of Article 105 is to ensure that members of the Parliament and the state legislatures are able to discharge their duties in an atmosphere of freedom without fear of consequences which may follow for the manner in which they speak or exercise their vote on the floor of the house. The object is not to set apart the members of the legislature as persons who wield higher privileges in terms of immunity of general law of the land which citizens of the land do not possess."
The SC also noted that the matter involved "morality of the polity".
"As a constitution bench, if we have a particular issue which deeply affects the morality of our polity, shouldn't we take an opportunity to straighten the law," said the bench during the proceedings on Wednesday, as per PTI.
The bench said that "four eminent counsels" were appearing in the case and this was the opportunity to "set the law straight", as per PTI.
"We have four eminent counsels appearing in this. What better opportunity to straighten the law? Normally you don't want to get into a broader issue of law where you may not feel that you'd get the correct assistance because then the entire burden is on us. Even then we take up the burden sometimes. But here you have squarely a conflict between the viewpoints...we should set the law straight," said the SC.
