SC revisits immunity to lawmakers if 'element of criminality' attached to acts

The bench headed by Chief Justice DY Chandrachud began the hearing to reconsider the apex court's 1998 verdict giving this immunity from prosecution for MPs and MLAs for taking bribes to make a speech or vote in parliament and state legislatures.

“We have to deal with the immunity as well and decide a narrow issue, can the immunity (to lawmakers) be attached when there is element of criminality,” the constitution bench asked.

Solicitor General Tushar Mehta argued that the offence of bribery was complete when a bribe was given and accepted by a lawmaker.

Whether the lawmaker performs the criminal act was irrelevant for the question of criminality and it was a question under the Prevention of Corruption Act, rather under Article 105 which deals with the immunity available to the lawmakers, he said.

Morality of polity

The Bench, referring to the 1998 judgement, said it was held that irrespective of the criminality, immunity was available to the lawmakers.

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

Nearly a quarter century after the Jharkhand Mukti Morcha (JMM) bribery scandal rocked the country, the apex court had on September 20 this year agreed to reconsider its 1998 judgment, saying it is an important issue having a significant bearing on "morality of polity".

1998 verdict

The apex court had in a 1998 five-judge constitution bench verdict delivered in the PV Narasimha Rao-versus-CBI case held that MPs have immunity under the Constitution against criminal prosecution for any speech made and vote cast inside the House.

In 2019, a bench headed by then chief justice Ranjan Gogoi, which was hearing 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 five-judge bench the crucial question, noting it had "wide ramification".

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 be applied to her.

Shibu Soren, a former Jharkhand chief minister, and four other party MPs allegedly accepted bribes to vote against the no-confidence motion challenging the PV Narasimha Rao government in 1993.

The Narasimha Rao government had survived the no-trust vote with their support.

(With agency inputs)