The unanimous landmark judgment of a seven-judge Constitution Bench of the Supreme Court that those MPs and MLAs taking bribes to vote or make a speech in the House are not immune from prosecution is welcome inasmuch as it could act as a disincentive to this reckless behaviour by them, but it leaves open the question as to what mechanism will be in place to ensure that the legislature remained a place where free and fearless discussions take place as envisaged by the Constitution.
The court’s judgment overrules a five-judge bench’s 1998 verdict in the JMM bribery case which decided that parliamentarians and state legislators are immune from prosecution on this account. That judgment had protected five members of the JMM who accepted bribes and voted against a no-confidence motion moved against the minority government of P.V. Narasimha Rao in 1993 and saved it. The court had gone by Articles 105 (2) and 194 (2) of the Constitution which say no member of Parliament or a state legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the House or any committee thereof. The court had also quashed a CBI FIR against the MPs for bribery.
However, the Supreme Court has now overruled that judgment. It has made it categorical that “bribery is not protected by parliamentary privileges”.
No one can find fault with the court’s contentions that corruption and bribery by members of the legislatures erode probity in public life and the foundation of Indian parliamentary democracy. It is also true that such practices are “destructive of the aspirations and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive, and representative democracy”.
While welcoming the judgment in spirit, one may also be mindful of the fact that Articles 105 and 194 of the Constitution “seek to sustain an environment in which debate and deliberation can take place within the legislature”, as the court put it. In the opinion of the court, “this purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery”.
As per the court, a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. “The same principle applies to bribery in connection with a speech in the House or a committee,” it said. In essence, the court has refused to make a distinction between an act of a member within and outside the House.
Representative democracy demands that those elected behave in a manner that reflects the will of the people. Debates must be uninfluenced by factors external to the interest of the people. Constitutional immunity for speeches inside the legislatures was instituted for that purpose. A couple of instances where it was misused are hardly reason enough to scrap it completely; it is akin to throwing the baby out with the bathwater. With no immunity, a member who speaks critically of the government or an interest group now faces the possibility of being prosecuted.
The legislature must come up with alternatives to ensure that free speech in elected bodies remains unaffected while those who misuse it face consequences. The Supreme Court’s decision should not become a double-edged sword that strikes at the root of the essential functions of representative democracy.
