Quite disappointing
We will look at immunity of MPs and MLAs if acts involve element of criminality: SC
THE SUPREME Court said Wednesday that it will examine if MPs or MLAs are entitled to immunity in respect of a vote given or speech made in Parliament or Assembly where there is criminality attached to such acts but added that it will restrict itself to the question of reexamining the question of privileges only so far as the offence of bribery is concerned.
“You are entirely right because we should not be entering issues which strictly don’t arise before us…We will not revisit except on the issue of bribery,” said Chief Justice of India D Y Chandrachud, presiding over a 7-judge Constitution Bench, which is re-examining “the correctness” of a 1998 five-judge Constitution Bench judgment in the P V Narasimha Rao case, where the majority had held that legislators were immune to prosecution on bribery charges for their speech or vote in Parliament.
At the very outset, Solicitor General Tushar Mehta, appearing for the Centre, told the bench, also comprising Justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra, that he and Attorney General R Venkataramani would be arguing that the minority view in the Rao case by Justice S C Agarwal “is the correct view”.
The minority ruling said that an MP “does not enjoy immunity under Article 105(1) or under Article 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof”.
“Both majority and minority opinions (in the Rao judgment) go into two aspects – immunity etc under Article 105 and Prevention of Corruption Act as to when the offence is complete… Irrespective of contours of immunity, privilege etc, both come to the conclusion that offence is complete when there is an offer for bribe and it is accepted. That is the statutory position prior to the amendment of the PC Act in 2017 and even thereafter. Narasimha Rao is before 2017. The PC Act was amended thereafter in 2017. That is the position,” Mehta said.
“The offence of bribery is complete when I offer money to an MP or MLA and they accept. Whether they perform the part of their bargain inside the House or not has nothing to do with the criminality attached,” he said, adding that it is therefore “essentially… more a question of interpretation of the PC Act rather than Article 105”.
The CJI, however, said: “But a further question as to whether there is immunity still survives. Because the majority has held that irrespective of the criminality, immunity attaches. And the only exception they made was to a person who does not fulfil their part of the bargain. Because they said the words used in Article 105 are in the past tense – votes given or speech made. So they say if there is no vote cast or no speech made though the bribe was taken, then there is no immunity…”
“So we will have to ultimately deal with the issue of immunity as well as to whether they are right on the broader immunity. And what we have to do is this — since we are sitting in a bench of 7, we need not look at all the circumstances, what is the extent of the immunity enjoyed, we have to decide a very narrow issue, will immunity be attached when there is an element of criminality?”
Mehta said that in the event the part of the bargain by the elected member is not relevant, whether he voted or did not vote or whether he spoke or did not speak “may not have relevance because the offence is committed outside the House. Then the privilege question will not arise”.
“Therefore, the respectful interpretation of the PC Act may be more relevant than Article 105,” he said.
The CJI said: “That’s how we approach it. You are right. But it’s good. Now the controversy really narrows down because you are also of the view that the view of Justice Agarwal speaking for two judges is the more correct view…. ”
The SG said that “the only worry is because of the facts of bar bribery etc, (Article) 105 may not be revisited except in case of bribery”.
With the CJI agreeing to the suggestion, Mehta said that in which case his submission would be that inside the House, the legislator would have as much independence as in any other organ of the state.
“Absolutely, the whole purpose is to encourage free speech, have an unrestrained dialogue in Parliament and state legislatures. And that we must preserve. It’s a very important part of our nation – the legislature, both in the union and the states,” the CJI responded.
During the hearing, the CJI said that “what seems to have weighed with the majority (in the Rao judgment) is if you cannot be responsible in respect of a vote given or a speech made to any court in a proceeding, then the underlying motive for the casting of the vote or the speech, whether it’s criminal or otherwise is equally immune…”.
He said “the question is therefore whether you stretch that… to cover an underlying motive or an underlying consideration being criminal, as also being immune. Or does it stop with the vote cast or the speech which is given? And does it really also extend to the possible criminal demeanours in the casting of the vote or the giving of the speech?”
Senior Advocate Raju Ramachandran, appearing for the appellant, Jharkhand MLA Sita Soren, in whose case the question of revisiting the Rao judgment had arisen, urged the court to not interfere with what he said was “a carefully considered and well-reasoned judgment”. He said the judgment “was not unconscious of constitutional morality and there is no ground to upset the view taken”.
Senior Advocate P S Patwalia, who was appointed Amicus Curiae in the case, said: “What is essential for the court to see is what is the object and what is the purpose for which this immunity has been granted under Article 105. Because, according to me and according to the law as I have understood, after P V Narasimha Rao and even on the international arena, the object is not to give protection to an individual from ordinary criminal laws. The object instead is to protect the integrity of the legislative process by ensuring the independence of the individual legislator. And once that be the objective, the view of Justice Agrawal is the correct view and unless there is participation in a legislative process, there is no question of immunity kicking in.”
The CJI said there will be a problem in saying that the immunity attaches only where there is an overt act in the form of a vote given or speech made.
Illustrating this, he said, “Suppose an MP criticises plastic manufacturers association. The general secretary of the association says it is falsehood and sues him for damages. Not permissible. Now look at it another way. Suppose somebody files a suit against an MP saying that by keeping quiet on such an important issue, you have made yourself liable for an action in tort or civil wrong, can that MP not say I didn’t speak and I am equally immune?”
Patwalia responded that the MP can claim immunity and added that what is important is participation.
The CJI said that even remaining quiet is participation. Stating that a lawyer who keeps quiet in court, knowing that he has a difficult case and the judge is against the petitioner, “is equally participating… Likewise in Parliament also, immunity attaches to every constituent member of Parliament irrespective of what you are doing there, whether you are actually speaking or giving your vote”.
The hearing will continue Thursday.
Ananthakrishnan G – 2023-10-05 04:04
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