Professor Satya Narayan Misra in Bhubaneswar, March 9, 2024: First, it was Arun Jaitley’s Machiavellian electoral bond scheme of 2018, which a Supreme Court bench unanimously decreed that the opaque scheme violated the voters’ right to information enshrined in Article 19(1)(a) of the Constitution and directed the sale of bonds to be stopped forthwith. Now, the Supreme Court has called the bluff that the MPs and MLAs do not have untrammeled power to vote after taking a bribe under Articles 105 and 194 respectively.

In the process, in the Sita Soren Vs UOI case, a unanimous judgment today has turned on its head a split decision of the Supreme Court (3-2) in the JMM Bribery Case (1998) that no MP is answerable in a court of law for what he has said or voted for, given the absolute immunity he/she enjoys under Article 105 of the Constitution. The split verdict in the JMM bribery case (1998), where MPs were paid to vote in favor of P V Narasimha Rao to save the minority government in a No Confidence motion is considered by discerning analysts as a low watermark in the history of Supreme Court decisions. CJI Bharucha speaking on behalf of the majority held that “No MP is answerable in a court of law for what he has said in the Parliament.

A vote is an extension of speech and is given the protection that the spoken word has. “Interestingly Bharucha also wrote “We are acutely aware of the seriousness of the offense that the alleged bribe taker is said to have committed. Our sense of indignation should not lead us to construe the Constitution narrowly, impairing the guarantee to effective participation”. The last part of the observation is particularly difficult to digest.

On the other hand, the dissenting judges referred to global practices in other countries and highlighted how legislators in Australia and Canada are liable to be prosecuted for bribery in connection with their legislative actions. Concerning the UK Bill of Rights (1989) which assures freedom of speech and debates and proceedings in Parliament ought not to be questioned in any court of law, the judges brought out the Salmon Commission, which enjoins upon the Parliament to bring corruption, bribery or attempted bribery of a MP within the ambit of criminal law. Equality before law, for the Commission, is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe an MP from the Bill of Rights is a serious mistake, the Commission noted. In the USA involving Brewster for taking a bribe, CJ Burger noted:”

Taking a bribe is, obviously, no part of the legislative process or function. CJ DY Chandrachud in the Sita Soren Vs UOI case seems to be driven by the logic adduced by CJ Burger in the Brewster Case and Salmon Commission. In the present case, an appeal was filed by Sita Soren, daughter-in-law of Sibu Soren of the infamous JMM bribery case as the Jharkhand High Court refused to quash the charge sheet filed by the CBI alleging that she took a bribe for voting in Rajya Sabha in 2012.

The seven-judge bench unanimously decreed that parliamentary privileges are not gateways to claim privileges from the general law of the land. Corruption and bribery of MLAs and MPs, the Court held, erode the foundation of Indian democracy. It dismissed the notion that whittling down parliamentary immunity would expose a vote or a speech made by the lawmakers in the house to criminal investigation and thus enhance the possibility of abuse of law. Bribed lawmakers were destructive to the ‘aspiration and ideals of the Constitution and create a polity which deprives citizens of a responsible, responsive and representative democracy’.

The Supreme Court has applied a two-fold test, to identify areas where full immunity should be given to MLAs and MPs inside the house to speak and vote. One is where the action of a legislator enhances the dignity and authority of the house. Second, if they were in the exercise of his right to free speech, protest, and freedom from arrest. Quite clearly, be it, Sita Soren, in 2012 or her fatherin-law in 1993 to bail out Narasimha Rao’s minority government after allegedly taking bribes do not remotely fit into the twofold test of the Supreme Court.

The judgment has turned anti-corruption law on its head. The judgment has interesting ramifications on issues like freedom under Art 105 enjoyed by MPs inside the Parliament being independent of Art 19, which provides freedom of speech and expression to Indian citizens. Many believe freedom under 105 is independent of Art 19 which imposes reasonable restrictions by the state and gives full freedom in casting of his votes.

The present judgment has cleared that cobwebs and busted the myth of full immunity from corruption as MPs are public servants and come within the purview of the Prevention of Corruption Act 1998, An interesting aside from the judgment is that Mr. Modi has hailed this judgment as ‘it will ensure clean politics’ while the SBI has filed an application seeking time beyond the elections to disclose names of donors to electoral bonds in the past.

As the largest recipient of electoral bond money, BJP is understandably worried that its nexus with the corporate world by providing favors and largesse would be exposed. It’s equally ironic that it has anointed Bharat Ratna on PV Narasimha Rao of Congress, who had such a sordid role to play in the JMM bribery case. Memories also go back to cash for query scam (2005), in which bundles of notes were displayed inside the House of Parliament.

Mr L K Advani, then as Leader of opposition, called the scandal as act of stupidity, not deserving expulsion. Mr Somnath Chatterjee as the speaker misused his privilege as the speaker and did not allow the truth to come out. Mr MC Setalvad, as Attorney General, at the inauguration of the Supreme Court, in 1950 had said: Like all human institutions, the Supreme Court will earn reverence through truth.

Fali Nariman, the distinguished jurist writes in his book Before Memory Dies: It is not enough for judiciary to be independent of judiciary. They should be seen as men of courage. ‘Given the sordid underbelly of most political parties, with corruption not the IPR of any party, the Supreme Court would earn reverence by speaking the truth by being courageous and calling the bluff on Parliamentary immunity.