Constitution Bench of Supreme Court reserves verdict on whether legislators are immune from bribery cases

A seven-judge Constitution Bench of the Supreme Court on Thursday reserved its verdict on whether the legal immunity enjoyed by legislators under Articles 105(2) and 194(2) of the Constitution protects them from prosecution for taking bribes [Sita Soren v. Union of India]..The bench Chief Justice of India (CJI) DY Chandrachud with Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, PV Sanjay Kumar and Manoj Misra finished hearing arguments of the Central government as well as rejoinder submissions by the petitioner today.Attorney General (AG) R Venkataramani suggested a functional test to determine immunity, saying that it could extend to speech or acts of voting needed to discharge the duty of a legislator, without fear of consequences..Article 105(2) confers on Members of Parliament (MPs) immunity from prosecution in respect of anything said or any vote given by them in Parliament or on any parliamentary committee. Article 194(2) grants similar protection to Members of Legislative Assemblies (MLAs)..Background.The issue before the Supreme Court arose from a plea filed by Sita Soren, sister-in-law of current Jharkhand Chief Minister Hemant Soren. She was accused of taking a bribe to vote for a particular candidate in the 2012 Rajya Sabha Elections.A complaint was filed in 2012 with the Chief Election Commissioner of India seeking a Central Bureau of Investigation (CBI) probe into the case. Soren was charged with the offences of criminal conspiracy and bribery under the Indian Penal Code (IPC), and for criminal misconduct by a public servant under the Prevention of Corruption Act.In 2014, while hearing her plea seeking quashing of the case, the Jharkhand High Court noted that Soren had not cast her vote for the person who had offered her the bribe. The High Court thus held that Soren was not immune from prosecution since there was no direct nexus between the voting and the bribe. This led to the present appeal before the Supreme Court.Earlier in 1998, a Constitution Bench of the Supreme Court had held in PV Narasimha Rao v. State that Article 105(2) even protects MPs from facing bribery charges. A 3:2 majority had reasoned that 105(2) applies not only to voting but anything connected to voting including taking bribes that influenced the voting.Before the apex court, Soren contended that the decision in PV Narsimha Rao should be interpreted broadly so that politicians can speak their mind without fearing legal action.The Supreme Court had on September 20 referred the matter to a seven-judge Constitution Bench to decide whether the judgment in PV Narasimha Rao needs to be reconsidered..Hearing.On the first day of hearing on Wednesday, Solicitor General Tushar Mehta, appearing for the Central government, argued that the case primarily concerns the Prevention of Corruption Act rather than parliamentary privileges.Senior Advocate Raju Ramachandran and advocate Vivek Singh appeared for the petitioner in the case Sita Soren, and argued that once a speech is made and vote is given, the nexus between the two is fulfilled."(Legislative) members need protection. Regarding criminal prosecution, you cannot differentiate between corruption and defamation. Political corruption is the way of modern life, the Court out of a sense of moral outrage should not proceed further...it is not the job of the Court to find solutions to all moral problems or conundrums."The CJI responded that courts cannot question speeches or votes in Parliament. However,"This does not seek to implicate other aspects such as that of criminality, political morality etc, is dealt by the Tenth Schedule."Ramachandran then stated that if political corruption is the way of life, then misuse of law is also the way of life. "Politicians have faced discrimination at the hands of probe agencies of different states. This Court should not interfere with a carefully considered and well reasoned judgment, PV Narsimha Rao. The judgment which was not unconscious of constitutional morality and there is no ground to upset the view taken.".Amicus Curiae and Senior Advocate PS Patwalia, assisted by Advocate Gaurav Agarwal, argued that constitutional interpretation must strengthen the document. The CJI then said that applying the legal immunity only when a legislator is speaking, will make it very restrictive.Senior Advocate Gopal Sankarnarayanan, appearing for an intervenor, argued that the Narasimha Rao judgment overlooks the offences under the Prevention of Corruption Act and makes bribe-takers immune upon speaking in Parliament."Bargain that underpins the democratic system is completely undone when we let that person to get off, that is what is happening.".On Thursday, Sankaranarayanan continued his submissions saying that such a judgment allowed legislators to thus become immune to a criminal act."If I disable the member to take legislative process ahead or deny someone to cast a balancing vote, then it is an interference in the legislative process. We have to see what sort of crime is this. Crime is in relation to vote given or not given, speech given or not given."Senior Advocate Vijay Hansaria, appearing for an intervenor, stressed on the dangers of criminalisation of politics in today's times.AG Venkataramani said he too is against the criminalisation of politics and thus is personally estopped from saying anything to the contrary. "Lines are drawn to push the protection one way or other. What is the non-legislative function for a person who is elected to be in the Parliament? The question is whether a line can be drawn between external and internal activity and drawing that line is problematic. Whole case in Parliament depends on information flow, so often, the two get mixed up unwittingly," he explained. He added that the issue would have to be treaded upon carefully, but not through the basic structure doctrine."Once there is freedom of speech, it has a broader implication. It concerns freedom of the Member of Parliament. Let us not get into Article 14 or the basic structure doctrine.".CJI Chandrachud observed that if a Parliamentarian makes a speech outside Parliament, there is no immunity.SG Mehta added that privilege entails voting and performing duties fearlessly."Self-regulation is an essential ingredient for separation of powers. Bribery can never be a subject matter of immunity, unless one out of thousand cases takes place inside the House."He explained that is not the case that parliamentary privilege overrides all principles of public responsibility or application of laws applicable to common citizens.Rather, it is to ensure free and unimpeded functioning of parliamentary activities in a manner that is constitutionally sacrosanct.Advocate Abhimanyu Bhandari, appearing for an intervenor, submitted that the conduct of Parliamentarians in the course of their duty can never be questioned.Further, for prosecution to bring home a charge the alleged crime has to be independent and cannot rely on the speech or how a Parliamenatrian voted inside the house. Bhandari stressed that a charge of bribery is independent, and can be made without actually looking at the content of the speech or how one voted..As the hearing drew to a close, the CJI expressed his apprehensions against blanket immunity."You (petitioner) are submitting that if vote is a consequence of antecedent criminality, then that also is within the ambit of immunity. When defamation takes place on the floor of the House, then that act is immune from any prosecution. But the conspiracy? I am not really sure about your interpretation, if the act is illegal then," he said.