SC’s 7Judge Bench to Examine Lawmaker Immunity Amidst Criminal Allegations

A seven-judge bench of the Supreme Court on Wednesday stated that it will deal with the issue of whether immunity granted to lawmakers is available if there was criminality attached to their acts.

The bench headed by Chief Justice DY Chandrachud commenced hearing to reconsider the top court’s 1998 verdict granting MPs and MLAs immunity from prosecution for taking bribes to make a speech or vote in Parliament and state legislatures.

A constitution bench headed by Chief Justice DY Chandrachud stated, “We have to deal with the immunity as well and decide a narrow issue, can the immunity (to the lawmakers) be attached when there is an element of criminality.”

Solicitor General Tushar Mehta, at the outset, stated that possibly the controversy can be narrowed down in view of the fact that the offence of bribery is complete when a bribe is given and accepted by the lawmaker.

The law officer stated, now whether the lawmaker performs the criminal act is irrelevant for the question of criminality and it is a question under the Prevention of Corruption Act, rather under Article 105 which deals with the immunity available to the lawmakers.

The bench, referring to the 1998 judgement, stated that it was held that irrespective of the criminality, immunity is available to the lawmakers.

“We will ultimately have to deal with the issue of immunity,” stated that the bench which also comprised justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Misra.

Nearly 25 years after the JMM bribery scandal rocked the country, the apex court on September 20 agreed to reconsider its 1998 judgment, stating that it was an important issue having a significant bearing on “morality of polity”.
A 5-judge bench of the apex court decided to refer the issue to a larger 7-judge bench.

The apex 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 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 court in respect of anything stated 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 Ranjan Gogoi, which heard an appeal filed by Sita Soren, JMM MLA from Jama and daughter-in-law of party chief Shibu Soren, who was an accused in the JMM bribery scandal, referred to a 5-judge bench the crucial question, noting it had “wide ramification” and was of “substantial public importance”.

Sita Soren was accused of taking bribes to vote for a particular candidate in the Rajya Sabha election in 2012. She contended that the constitutional provision granting lawmakers immunity from prosecution, which saw her father-in-law being let off the hook in the JMM bribery scandal, be applied to her.

The 3-judge bench had then stated that it will revisit its verdict in the sensational JMM bribery case involving Shibu Soren, a former Jharkhand chief minister and ex-union minister, and 4 other party MPs who allegedly accepted bribes to vote against the no-confidence motion challenging the survival of the 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 Soren and 4 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.

Sita Soren appealed against the Jharkhand High Court order of February 17, 2014 refusing to quash a criminal case lodged against. The CBI accused her of accepting bribes from one candidate and voting for another.