Immunity won’t protect legislators taking bribes to vote in Parliament from criminal prosecution: Supreme Court

The criminal liability would lie even if a legislator, after accepting the corruption money, chooses to not vote or speak in favour of the bribe-giver, the Constitution Bench clarified

Chief Justice of India (CJI) D.Y. Chandrachud. | Photo Credit: ANI

A seven-judge Bench of the Supreme Court on Monday declared that parliamentary privilege or immunity will not protect legislators who take bribes to vote or speak in Parliament or State Legislative Assemblies from criminal prosecution.

“Privileges and immunities are not gateways to claim exemptions from the general law of the land… Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy,” the Supreme Court observed.

The unanimous verdict authored by Chief Justice of India D.Y. Chandrachud overruled a 25-year-old majority view of the Supreme Court, laid down in the infamous JMM bribery case judgment of 1998, that lawmakers who took bribes were immune from prosecution for corruption if they go ahead and vote or speak in the House as agreed.

The seven-judge Bench said the majority on the five-judge Bench in JMM bribery case had erred. The court did not want to perpetuate the grave error. Representative democracy was at stake. Chief Justice Chandrachud clarified that the offence of bribery was complete the moment the corruption money was accepted. Culpability of the legislator did not depend on whether he actually delivered for the bribe-giver on the floor of the House.

“The legislator will face criminal prosecution whether or not he makes a speech or votes in favour of the bribe-giver. The offence of bribery is complete on the acceptance of the money or on the agreement to accept money being concluded,” Chief Justice Chandrachud observed.

The Constitution Bench dismissed notions that whittling down of parliamentary immunity would expose a vote or a speech made by Opposition lawmakers in the House to criminal investigation and thus enhance the possibility of abuse of the law by political parties in power.

Bribed lawmakers, the court said, were destructive to the “aspirational and deliberative ideals of the Constitution and create a polity which deprives citizens of a responsible, responsive and representative democracy”.

Chief Justice Chandrachud reasoned that the freedom of speech and expression, which include voting in the House, and attendant immunities granted to legislators under Article 105 and 194 did not extend to giving or taking bribes.

“Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery,” Chief Justice Chandrachud noted.

The judgment said parliamentary immunity would kick in only if a legislator acts in furtherance of “fertilising a deliberate, critical and responsive democracy”.

Two-fold test

The shield of immunity or parliamentary privilege could be claimed in two circumstances. One, if the actions of a legislator were meant to enhance the dignity and authority of the House and its members as a collective body and, secondly, if they were in exercise of his rights to free speech, protest and freedom from arrest, among others. A claim for immunity would not survive if it failed this two-fold test, the court said.

“An interpretation which enables an MP to claim immunity from prosecution for an offence of bribery would place them above the law. This would be repugnant to the healthy functioning of parliamentary democracy and subversive of the rule of law,” Chief Justice Chandrachud observed.

Criminal courts and Houses of legislature have parallel jurisdiction over allegations of bribery. One cannot negate the jurisdiction of the other. “The jurisdiction exercised by a competent court to prosecute a criminal offence and the authority of the House to take action for a breach of discipline in relation to the acceptance of a bribe by a member of the legislature exist in distinct spheres,” Chief Justice Chandrachud laid down.

The reference came in an appeal filed by JMM leader Sita Soren, who was accused of taking a bribe to vote for a particular candidate in the Rajya Sabha elections of 2012. Though she later denied culpability on the ground that she voted for the official nominee of her own party, the CBI had filed a chargesheet in the case. The Jharkhand High Court had refused to quash the chargesheet, following which she had moved the apex court.

Sita Soren is the daughter-in-law of JMM chief and former Union Minister Shibu Soren, who was involved in the alleged JMM bribery case. In 1993, four JMM MLAs and eight other MPs were allegedly bribed to ensure the survival of the then P.V. Narasimha Rao government during a no-confidence vote. They voted accordingly, and when the scandal broke, claimed immunity from criminal prosecution because their act of voting had happened inside Parliament.

In its 1998 majority verdict in the JMM bribery case, the apex court had held that bribed legislators were immune from prosecution provided they go ahead and perform their “legislative function” of casting their votes or giving their speeches.

While reserving the review case in October last year, Chief Justice Chandrachud had observed that the majority view had turned the anti-corruption law on its head.