The Supreme Court on Wednesday referred to a seven-judge Constitution Bench the question of whether the legal immunity enjoyed by legislators under Articles 105(2) and 194(2) of the Constitution protects them from prosecution for taking a bribe. Article 105(2) confers on Mps immunity from prosecution in respect of anything said or any vote given by them in parliament or any parliamentary committee. Article 194(2) grants similar protection to MLAs.
A Constitution Bench of the Supreme Court in JMM bribery case involving former Prime Minister PV Narasimha Rao had held that Article 105(2) even protects MPs from facing bribery charges. A 3:2 majority reasoned that 105(2) applies not only to voting but anything connected to voting including taking bribes that influenced the voting. A larger bench will now be constituted to reconsider this judgment.
A Bench of Chief Justice of India DY Chandrachud and Justices AS Bopanna, MM Sundresh, JB Pardiwala and Manoj Misra noted that MPs and MLAs must be free to express their views on the floor of the house without fear of consequences, but are not necessarily immune to criminal action. “While Article 19(1)(a) recognises individual right to free speech, the object of Articles 105(2) and 194(2) does not prima facie look to render immunity from launch of penal proceedings for violation of criminal law which may arise independently from the exercise of rights and duties as a member of Parliament...purpose of 105(2) and 194(2) is...not to make them separate with higher privileges than the common man who has remedies before the criminal law,” the Bench said.
The five-judge Constitution Bench was hearing a case dealing with the question of whether the legal immunity given to MPs and MLAs protects them from prosecution for taking a bribe even if the amount was not used as per the demand of the bribe-giver. The issue arose in a plea filed by Sita Soren, sister-in-law of current Jharkhand Chief Minister Hemant Soren, who was accused of taking a bribe to vote for a particular candidate in the 2012 Rajya Sabha Elections.
A complaint was filed in 2012 with the Chief Election Commissioner of India seeking CBI probe into the case. Soren was charged with the offences of criminal conspiracy and bribery under the Indian Penal Code (IPC), and for criminal misconduct by a public servant under the Prevention of Corruption Act. In 2014, while hearing her plea seeking quashing of the case, the Jharkhand High Court noted that Soren had not cast her vote for the person who had offered her the bribe.