Not Privileged Enough

The apex court’s recent big order, curtailing the privileges of parliamentarians and other lawmakers, has the potential to clean up Indian politics while leaving lawmakers vulnerable to allegations of bribery

By Sujit Bhar

The Supreme Court’s recent big order is about parliamentarians and other lawmakers and their privileges. It will have far reaching consequences in the political arena of today. A Constitution bench of Chief Justice of India DY Chandrachud and Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, PV Sanjay Kumar and Manoj Misra, while overturning the 1998 PV Narasimha Rao order that legislators are immune from being prosecuted for even taking bribes to vote a certain way in a legislative house, observed that MPs and MLAs cannot claim any immunity from prosecution under Article 105 and Article 194 (2) of the Constitution. This refers to instances where they have been accused of taking bribes.

This is a judgment which has narrowed down the elbow space in privileges for an MP or MLA. The Constitution bench, which analysed majority and minority decisions of the Narasimha Rao judgment, disagreed and overruled the judgment. The bench added that allowing the majority of the 1998 judgment can be cause for grave danger.

The argument of the bench was that this immunity, under Articles 105(2) and 194(2) in respect of anything said or done in Parliament or in a legislative assembly is connected to the collective functioning of the legislative house. It elaborated that while these provisions are meant to sustain an environment that facilitates free deliberations, if a member is bribed to deliver a speech in a certain way, such an act would vitiate the atmosphere.

The Court went further in its observations, maintaining that just the act of taking a bribe could expose the legislator to criminal charges. It said that it is not required for the legislator accepting the bribe to do any further act in response to the bribe, which will mean that this charge will count even if the legislator has not acted on the financial or other impetus by any act, such as delivering a speech or voting in a certain way. The premise of this is basic morality and that bribery erodes probity in public life.

Hence, the act of bribery itself remains a crime and is agnostic, which means that it does not matter if the end result indicates otherwise.

The Political Fallout

The specific and immediate fallout of this judgment will be experienced by Sita Soren, sister-in-law of former Jharkhand Chief Minister Hemant Soren. Jharkhand Mukti Morcha’s (JMM) Sita was accused of taking a bribe to vote for a particular candidate in the 2012 Rajya Sabha elections. Hemant Soren is now in jail in a PMLA case.

Interestingly, the PV Narasimha Rao case itself was about a no-confidence motion against his government in July 1993. The minority government survived 265-251, but allegations surfaced soon after, saying JMM legislators had taken bribes to vote in support of the government.

At that time (1998), the Supreme Court had held that the lawmakers’ immunity from prosecution extended to their votes and speeches inside the House. Hence the bribery allegation had failed to stick.

The Current Scenario

In the Sita Soren case, she had lodged a plea in the top court, against a complaint registered in 2012 with the Chief Election Commissioner of India, seeking a CBI probe into the case. In the absence of this new judgment of the top court, and with the earlier (1998) judgment standing, Sita was then charged with the offences of criminal conspiracy and bribery under the Indian Penal Code as well as 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 had noted that Sita had not cast her vote for the person who had offered her the bribe. Eventually, the matter reached the Supreme Court after Sita filed an appeal against the High Court’s decision to dismiss her plea.

Here is where the specific Supreme Court order on bribery itself being the crime, and agnostic of the outcome, comes into effect.

Another Victory for the BJP

The Opposition’s political cookie has crumbled and the Bharatiya Janata Party (BJP) comes out trumps. Prime Minister Narendra Modi has praised this Supreme Court judgment. 

Already the PMLA case against Hemant Soren has resulted in his resigning from his post as chief minister and the JMM isin a fix as to how to handle all the cases that jam every political portal. This new top court judgment is as binding as it gets for the JMM.

The memory of Shibu Soren’s controversial reign on Jharkhand is still fresh in public memory. Even the other day, the Lokpal ordered the CBI to probe within six months two properties belonging to JMM president Shibu Soren. This will be done under the Lokpal and Lokayuktas Act, 2013. That looks like another long, threatening nail and all the doors seem to be shutting on JMM and Hemant, who will have to pay for refusing the BJP’s overtures. It could also further weaken the INDIA alliance.

The Mahua Issue

While speaking of the INDIA alliance, the current Supreme Court judgment also firmly puts in the dock Trinamool Congress lawmaker Mahua Moitra, who was recently expelled from Parliament by an ethics committee decision.

The allegation against Moitra was that she had not only released her login details to a Dubai-based businessman, but had also probably asked specific questions in Parliament after having received gifts from that businessman. While no financial transaction towards this end has been found, these gifts have been categorised as “bribe”.

Moitra has gone to the Supreme Court on this, but the latest Constitution bench judgment will surely backfire on her.

The Overall Picture

MPs asking questions in the House on behalf of their constituencies is the basic principle of a representative democracy. At this point, the line separating a bribe-induced question and a real issue brought to the surface can get blurred through systemic inadequacies of the country.

While the judgment itself is pioneering, bringing in more accountability and a fair degree of openness to the entire parliamentary process, the implementation of the same can be tedious. In the case of Moitra, there possibly remain arguments on two fronts. The first is whether the ethics committee has the power to recommend a disqualification of an MP, which was the case, and whether the Speaker of the House should look into the powers of such committees.

The second is establishing whether expensive gifts, even if they were given, constitute a bribe per se. These questions should, again, be decided in a court of law before such expulsions happen.

Also, from this point, lawmakers would be careful while exercising their privileges. That is the moot point and the goodness of this judgment.

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