Can lawmakers claim immunity from prosecution for taking bribes for voting in the House?

New Delhi, November 15

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The Supreme Court on Tuesday appointed senior advocate PS Patwalia as amicus curiae to assist it in deciding if a lawmaker can claim immunity from prosecution for taking bribes for voting or making a speech in the House?

A five-judge Constitution Bench led by Justice S Abdul Nazeer asked advocate Gaurav Agarwal to assist Patwalia in the matter and posted the matter for further hearing on December 6.

The Bench, which also included Justice BR Gavai, Justice AS Bopanna, Justice V Ramasubramanian, and Justice BV Nagarathna – would examine if Article 194(1) and Article 105(2) of the Constitution granted immunity to MLAs/MPs from prosecution for taking or giving bribes to vote in the House.

According to Article 105(2), “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 Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

Petitioner Sita Soren has claimed protection under Article 194(2) — which is identical to Article 105(2) — and applies to state legislators.

A three-judge Bench headed by the then CJI Ranjan Gogoi had on March 7, 2019 referred the question to a larger Bench, saying it involved important questions of law.

A five-judge Constitution Bench had in 1998 in PV Narasimha Rao’s case held that a lawmaker was immune to prosecution even if he/she took money to vote on the floor of the House. Another five-judge Constitution Bench had in 2007 ruled in Raja Rampal’s case that those who took money to ask questions in Parliament were liable to be expelled from the House permanently. Since, the 1998 and 2007 verdicts appear to be contradictory to each other; the present issue might ultimately go to a seven-judge Bench.

Sita Soren, who was an MLA in the Jharkhand Assembly, is being prosecuted by CBI for allegedly taking bribes for voting in 2012 Rajya Sabha Poll. She had been accused of receiving bribes from a Rajya Sabha candidate for casting her vote in his favour but instead cast her vote in favour of another candidate.

Her father-in-law and JMM leader Shibu Soren was saved by the 1998 Constitution Bench verdict wherein the top court ruled that MPs who took money and voted in favour of Rao’s Government were immune to prosecution. It had, however, ruled that those who gave the bribe to JMM MPs were not immune to prosecution.