Can MPs/MLAs Taking Bribe For Vote/Speech In Legislature Claim Immunity? Supreme Court 7-Judge Bench Reserves Verdict

A constitution bench of the Supreme Court on Thursday reserved its verdict on whether members of parliament and legislative assemblies could claim immunity under Articles 105(2) and 194(2) of the Constitution for receiving a bribe in contemplation of a vote or speech in the legislature.A seven-judge bench of Chief Justice of India DY Chandrachud, and Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar, and Manoj Misra is considering the correctness of the 1998 PV Narasimha Rao judgment that was referred last month to a larger bench of seven judges.In PV Narasimha, by a 3:2 majority, a five-judge bench of the apex court held that members of the parliament or state legislatures were immune from prosecution in bribery cases revolving around any speech or vote in the house, in the enjoyment of the parliamentary privilege conferred by Articles 105(2) and 194(2) of the Constitution. The majority, led by Justice SP Bharucha, however, clarified that the parliamentary privilege could only be claimed if the legislator in question upheld their end of the bargain for which they received they received a bribe. This verdict was doubted in an appeal by Jharkhand Mukti Morcha leader Sita Soren who was accused of accepting a bribe for a 2012 Rajya Sabha vote. She claimed immunity under Article 194(2) of the Constitution, but the Jharkhand High Court dismissed her plea, leading to her appeal in the Supreme Court.After two days of hearing, the seven-judge constitution bench led by Chief Justice Chandrachud reserved its judgment today on whether this significant 25-year-old ruling on legislative immunity and bribery ought to be reconsidered.Immunity can only be claimed in discharge of essential legislative function: Gopal SankaranarayananBuilding on his remarks yesterday, Senior Advocate Gopal Sankaranarayanan reiterated his objection against the nexus test proposed in the majority judgment of PV Narasimha. Instead, he suggested that the consequence or the effect of the act be examined. In response to Justice Narasimha’s reluctance over the idea of reformulating the scope and extent of parliamentary immunity, Sankaranarayanan explained why the norms for being entitled to the protective cloak of Articles 105(2) and 194(2) needed to be laid down –“One counter-argument is the legislators being targeted by a powerful executive. So when balancing this consideration, you have to be careful of ensuring that the legislators get the immunity that the constitution intended. The cloak cannot be made so small that it disappears. If we are doing that, we have to have some kind of formulation or test on the basis of which we determine the immunity that is deserved.”The senior counsel also urged the court to create a distinction between different activities in the parliament or state legislature, pointing to how non-legislative activities were contrasted against legislative activities by the Supreme Court in K Ajith (2021). In support of the ‘essential functions’ test, Sankaranarayanan also referred to the three categories laid down by the United States Supreme Court, namely, manifestly legislative act, non-legislative act, and illegitimate activities –“In Narasimha Rao, even illegitimate activities are said to receive cloak of protection…Whether an act is essential for undertaking legislative functions is a test I would commend. It is a better test than the proximity of time or to see if the vote had been cast and the speech delivered. The question is only whether an act was part of the essential legislative function. If yes, the legislator will enjoy immunity; otherwise, it cannot be claimed.”Sankaranarayanan also told the bench that the question of claiming immunity would not arise unless there was a crime. The test to determine whether the protective cover of the constitutional provisions could be extended to a legislator would depend on the nature of the crime. The crime, the senior counsel said, is one that would “attend a speech or vote given or not given in the parliament as a consequence of extraneous considerations”. This question would not arise if an act is part of the normal legislative process, he added, referring to parliamentarian Ramesh Bidhuri’s recent speech in Lok Sabha in which he used slurs against his Muslim colleague, Danish Ali. The senior counsel explained –“Two weeks ago, a gentleman hurled expletives in Lok Sabha. I do not know if the phrase ‘parliamentary language’ can be used anymore after this. It was ensured that the words were struck off from the records, but it’s my view that it was a crime having many hues of hate speech and attracting provisions of the Indian Penal Code. But whether we like it or not, or find it palatable, it is something he said during a debate and on a subject. It would not be fair for us to say that the gentleman, however reprehensible his conduct may have been, did not have parliamentary privilege when he said that.”In response to Chief Justice Chandrachud’s...

Can MPs/MLAs Taking Bribe For Vote/Speech In Legislature Claim Immunity? Supreme Court 7-Judge Bench Reserves Verdict

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Can MPs/MLAs Taking Bribe For Vote/Speech In Legislature Claim Immunity? Supreme Court 7-Judge Bench Reserves Verdict

Awstika Das

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Awstika Das

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