Supreme Court 7-Judge Bench Examines Scope Of Immunity For MPs/MLAs Taking Bribes For Speech/Vote In Legislatures

A constitution bench of the Supreme Court on Wednesday questioned whether immunity should be granted to legislators accused of corruption, merely on an apprehension that the absence of such immunity could be misused by the executive to target political opposition.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 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 the challenge in the Supreme Court.Today, the seven-judge constitution bench led by Chief Justice Chandrachud began reexamining this significant judgment on legislative immunity and bribery, which has held the field for more than 25 years. At the outset of the hearing, Solicitor-General Tushar Mehta insisted that the issue should be narrowed down to an analysis of the Prevention of Corruption Act, 1988 without revisiting Article 105, arguing that the performance of the offending act was irrelevant to determine criminality. In response, the Chief Justice said that the question of immunity would ultimately have to be discussed since the majority of three judges in PV Narasimha Rao held that immunity could be claimed irrespective of criminality, with the only exception being a legislator who accepts a bribe but does not cast a vote or deliver a speech as promised. At the same time, Chief Justice Chandrachud assured the law officer, “We will not be dealing with issues that do not strictly arise.”Legislators need protection from a powerful executive misusing their powers: Raju RamachandranOpening the debate, Senior Advocate Raju Ramachandran argued against overruling PV Narasimha Rao on the ground that it did not pass muster of the tests laid down by the Supreme Court for overturning judicial precedents. He called for caution when embarking on this exercise, pointing to the limitations imposed by the court on itself, especially because the impugned ruling has held the field undisturbed for over a quarter of a century. Next, addressing an argument that the interpretation given by the PV Narasimha Rao bench was the ‘antithesis of the rule of law’, Ramachandran said that the concept of constitutional privileges and immunities was not in derogation to the rule of law but a distinct pillar of the constitutional edifice. The senior counsel also invoked the literal or plain meaning rule of interpretation, arguing that any attempt to whittle down the protective scope of Articles 105(2) and 194(2) in an attempt to adhere to what is ‘seemingly logical, fair, or reasonable’, would be constitutionally unjustified. The minority judgment penned by Justice SC Agarwal proposed to restrict the scope, Ramachandran told the bench –“There is no justification for this. This would be violence to the plain language. This reading flows from moral outrage. This is the error in Justice Agarwal’s judgment. He is conscious that the power of expulsion is there, but he says that this is not a satisfactory solution. It is not for the court to find perfect solutions to all moral and political conundrums.”Next, Ramachandran traced the historical evolution of the regime of immunities and privileges and highlighted its importance in the context of insulating legislators from executive influence. He said –“Independence of legislators from the crown, and in a democracy, a democratic executive, is a key consideration. A powerful executive – whatever the political party – is a fact of political life today in India, just as it is a fact that the law is misused. If a legislator is to vote fearlessly, they should be free from fear of prosecution. This is not an amoral judgment. The majority was just as anguished and shocked as any conscientious citizen or a court should feel. Nevertheless, they decided to read the Constitution as written to ensure that legislators are granted the protection they need.”In response to Ramachandran’s apprehensions of a ‘misuse of law’, Chief Justice Chandrachud asked, “Should we grant immunity to political corruption on an apprehension of a misuse of law, because an apprehended...

Supreme Court 7-Judge Bench Examines Scope Of Immunity For MPs/MLAs Taking Bribes For Speech/Vote In Legislatures

Awstika Das

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