As SC overturns Narasimha Rao decision, remembering its 1998 ruling in JMM cash-for-votes case

The Supreme Court on Monday (March 4) held that legislators do not enjoy immunity from criminal prosecution for bribery charges in connection with their speech and votes made in Parliament and Legislative Assemblies.

In doing so, it overruled its own 1998 judgement in P V Narasimha Rao v State (CBI/Spe), where a five-judge bench, in a 3-2 verdict, held that legislators were immune from prosecution for taking such bribes.

Here is all you need to know about the case, and the Supreme Court’s 1998 ruling.

A no-confidence motion, and allegations of bribery

Amidst economic and political upheaval in the country, CPI(M)’s Ajoy Mukhopadhyay, on July 26, 1993, introduced a no-confidence motion in the Lok Sabha against Prime Minister P V Narasimha Rao.

At the time, Rao’s Congress party, with 251 members of parliament (MPs), was 13 short of a majority in the 528-member-strong Lok Sabha. On the day of the vote, however, the motion was defeated with 265 votes in favour, and 251 against — Rao and Congress, thus, stayed in power.

A year later, reports emerged that Jharkhand Mukti Morcha MPs had accepted massive bribes from Rao to vote against the no-confidence motion. In 1996, the Central Bureau of Investigation (CBI) began investigating the matter.

It would go on to register cases against six JMM MPs, saying that its investigation had found them accepting bribes to vote against the no-confidence motion in 1993. Janata Dal’s Ajit Singh was also accused of accepting a bribe to abstain from voting.

When the Delhi High Court refused to quash the charges, Narasimha Rao and the other accused appealed to the Supreme Court.

Majority opinion: legislators enjoy immunity under Articles 105(2), 194(2)

The Supreme Court had to decide whether legislators, by virtue of their office, enjoyed immunity from prosecution in the above case.

Justice Barucha, who authored the majority opinion for himself and Justice Rajendra Babu, held that the bribe takers who cast their vote against the no-confidence motion were immune from criminal prosecution under Article 105(2).

Article 105(2) of the Constitution states: “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.”

Article 194(2) provides identical protections to members of state legislative assemblies.

Pointing to the intended purpose of the Article, Justice Barucha said that MPs must be allowed to exercise their freedom of speech in Parliament without fear of reprisal through court proceedings, and that their votes must be treated as an extension of this freedom. He held that in order to protect the independence of MP’s, the phrase “in respect of” in the Article must be given a “broad meaning” to protect the MP from all civil or criminal proceedings that have a connection with anything they have said or voted for in Parliament.

However, the court refused to extend the same protections to Ajit Singh, since he had neither made a speech nor cast a vote. It also refused to extend protections to bribe-givers. Justice G N Ray agreed with this interpretation of Article 105(2) in his concurring opinion.

Minority opinion: accepting a bribe is separate from vote or speech

Justice S C Agarwal authored the dissenting opinion for himself and Justice Dr A S Anand. This opinion would go on to have a major bearing on the apex court’s recent decision to overturn the 1998 ruling.

Justice Agarwal observed that immunity from prosecution for bribery charges would place legislators above the rule of law, which is not the purpose of Article 105(2).

By protecting an MP who “has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification (bribe)” to be immune from criminal prosecution, Justice Agarwal stated that MPs thereon “would only be seeking a licence to indulge in such corrupt conduct.”

Focusing on the same “in respect of” phrase, Justice Agarwal claimed that the majority’s interpretation would create an “anomalous situation”. In such cases, he stated that MPs could be prosecuted for bribery only if they did not speak or vote in accordance with the purpose of the bribe, but would be immune from prosecution if they did give the necessary speech or vote.

Justice Agarwal, thus, proposed that the phrase “in respect of” should be read as “arising out of” so that the legislator is protected from any civil or criminal liability that follows the speech or vote given.

This would also allow legislators to be held accountable for criminal acts that precede the vote or speech by recognising that these acts are independent and separate from legislators’ actions in Parliament or a Legislative Assembly. Justice Agarwal stated that the offence of bribery is complete the moment a bribe is accepted and that it is irrelevant to consider if the purpose of the bribe was carried out, including when the purpose is a speech or a vote by a legislator.

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