The
Supreme Court said on Wednesday it will examine whether the immunity granted to
lawmakers from prosecution for taking bribe to make a speech or vote in
Parliament and state legislatures extends to them even if criminality is
attached to their actions, as it began reconsideration of its 1998 judgement in
the JMM bribery scandal that rocked the country 25 years ago.
The
apex court's 1998 verdict granted MPs and MLAs immunity from prosecution for
taking bribes to make a speech or vote in legislature.
At
the outset of the day-long proceedings, Solicitor General Tushar Mehta urged
the seven-judge constitution bench headed by Chief Justice D Y Chandrachud that
the court need not go into the immunity aspect under Article 105 of the
Constitution and the controversy, possibly, 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, something which can be tackled under the Prevention of
Corruption Act.
Article
105(2) stipulates that no member of Parliament shall be liable to any
proceedings in court in respect of anything said or any vote cast in Parliament
or any committee thereof. A similar provision exists for MLAs under Article
194(2).
The
bench, referring to the 1998 judgement, said it was held that irrespective of
the criminality, immunity is available to the lawmakers.
We
will have to ultimately deal with the issue of immunity as well. Since we are
sitting in the combination of seven (judges), we are not required to see the
immunity in all circumstances. We have to decide a very narrow issue whether
that immunity is attached (to lawmakers) when there is an element of
criminality, said the bench, which also comprised justices A S Bopanna, M M
Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra.
The
bench, however, took note of the submissions of the solicitor general that it
should not venture into the larger conspectus of immunity available to the
lawmakers.
Senior
lawyer Raju Ramchandran also urged the court to not interfere with the
carefully considered and well reasoned 1998 judgement which was not unconscious
of constitutional morality and that "there is no ground to upset the view
taken".
Political
corruption is the fact of life and misuse of law is equally a fact of life...
and this court has come to help the citizens and lawmakers who have suffered
unjust persecution, Ramchandran told the court, adding lawmakers were given
immunity from prosecution to protect them from unjust harassment.
Should
we grant immunity to political corruption just on the ground of apprehension of
misuse of the law? Chief Justice Chandrachud quipped.
Since
this apprehension of misuse has been at the root of grant of parliamentary
privilege from historical times, the court is only being asked to continue what
has stood the test of time, Ramachandran said.
We
should not be entering into issues which do not arise before us. The law has
evolved in our country... Because the whole purpose was to encourage free
speech and free dialogue in Parliament and in state legislatures and that we
must preserve. The legislatures in both the Union and the states are an
important part of the nation, the CJI said.
The
court referred to Article 105(2) and Article 194(2) of the Constitution
relating to immunity to lawmakers.
Suppose
a legislator has taken a bribe for casting a vote in a particular manner or
making a speech...the court cannot invalidate the vote because it was motivated
by a bribe. Suppose a person is convicted for an offence of bribery, can the
court say the vote should be excluded from counting parliamentary majority.
It's still a valid vote, the bench said.
The
bench, however, said immunity cannot be attached when there is criminal
wrongdoing.
So
once an MP either casts his vote and speaks in the House, he will not be
answerable to any court or in any proceedings for the vote which he has cast
and the speech made, it said, adding one cannot dispute a legislation on
grounds that the votes cast in its favour was vitiated by criminal wrongdoing.
But
that immunity, which attaches to vote, does not attach to crime that takes
place independent of casting of vote or rendering of speech, the bench
observed.
Senior
advocate P S Patwalia, assisting the bench as an amicus curiae (friend of
court), said the object of Article 105 was not to protect lawmakers against
ordinary criminal law but to protect the integrity of House and its legislative
proceedings.