Supreme Court's fiv judge bench has referred the issue to a larger seven-judge bench
Nearly 25 years after the Jharkhand Mukti Morcha (JMM) bribery scandal rocked the country, the Supreme Court on Wednesday agreed to reconsider its 1998 judgment granting MPs and MLAs immunity from prosecution for taking bribes to make a speech or vote in Parliament and state legislatures, saying it is an important issue having a significant bearing on "morality of polity".
A five-judge bench of the top court referred the issue to a larger seven-judge bench.
The top court in its 1998 five-judge constitution bench verdict delivered in the PV Narasimha Rao versus CBI case held that parliamentarians have immunity under the Constitution against criminal prosecution for any speech made and the vote cast inside the House as per Article 105(2) and Article 194(2) of the Constitution.
Article 105(2) of the Constitution stipulates that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote cast in Parliament or any committee thereof. A similar provision exists for MLAs under Article 194(2).
In 2019, a bench headed by then Chief Justice of India Ranjan Gogoi, hearing an appeal filed by Sita Soren - JMM MLA and daughter-in-law of party chief Shibu Soren. Ms Soren, 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".
She was accused of taking a bribe to vote for a particular candidate in the Rajya Sabha election in 2012. She contended that the constitutional provision granting lawmakers immunity from prosecution be applied to her.
The three-judge bench had then said it would revisit its verdict in the sensational JMM bribery case involving Shibu Soren, a former Jharkhand Chief Minister, and ex-Union Minister, and four other party MPs who had accepted bribes to vote against the no-confidence motion against the then PV Narasimha Rao government in 1993. The Narasimha Rao government, which was in a minority, survived the no-confidence vote with their support.
The CBI registered a case against Shibu Soren and four other JMM Lok Sabha MPs but the Supreme Court quashed it citing the immunity from prosecution they enjoyed under Article 105(2) of the Constitution.
Today, a five-judge constitution bench headed by Chief Justice DY Chandrachud said it will set up a seven-judge bench to examine the matter afresh and "straighten" the law even as Attorney General R Venkataramani opposed reconsideration of the 1998 judgment.
"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 that 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 bench said.
As the proceedings commenced today before the bench, also comprising Justices AS Bopanna, MM Sundresh, JB Pardiwala, and Manoj Misra, senior advocate Raju Ramachandran, appearing for Sita Soren, submitted the mater was a regular criminal appeal which involves the question of application of the PV Narasimha Rao case verdict.
Venkataramani, appearing for the Centre, referred to the facts of Sita Soren's case and said to qualify for protection under Article 194(2) of the Constitution, applicable to MLAs, a bribe had to be taken for proceedings for business or function of the House.
"(Shibu) Soren had received a bribe for the no-confidence motion (for voting against it) in the Parliament. There is nothing (in Sita Soren's case) to do with the business of the House. The function must have a nexus with the legislative business or purpose," he said.
Rebutting his submission, the bench asked, "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?
"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," the bench said.
Senior advocate PS Patwalia, who was appointed amicus curiae in the matter, stated there was a "fractured" kind of concurrence in the PV Narasimha Rao judgment which necessitated that the matter be referred to a larger bench.
Senior advocate Gopal Sankaranarayanan, appearing for one of the intervenors, echoed the views of the amicus curiae.
Sita Soren had appealed against the Jharkhand High Court order of February 17, 2014, refusing to quash a criminal case lodged against her for allegedly taking bribes to vote for a particular candidate in the 2012 Rajya Sabha elections. The CBI had accused her of accepting bribes from one candidate and voting for another.
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