Context:

• This article is based on an Editorial “Immunity of legislators from bribery charges” which was published in Indian Express. Recently, the Supreme Court referred to a seven-judge bench the question of whether legislators’ legal immunity under Article 105(2) and 194(2) of the Constitution shields them from criminal prosecution for offering or accepting a bribe.

Background of Current Case in the Supreme Court: Article 105 and Legislative Immunity

• PV Narasimha Rao vs. State Case: In its 1998 ruling, the top court had held that legislators have immunity against criminal prosecution on bribery charges for any speech or vote in Parliament.
• Case of Sita Soren: The matter began when, a member of Jharkhand politics, Sita Soren was accused of taking a bribe in exchange for her vote in the 2012 Rajya Sabha elections.
• Seeking protection under Article 194(2) & Article 105(2): She asked for her case to be dropped, by using protection under Article 194(2) of the Indian Constitution.
  • But after receiving negative results from the Jharkhand High Court in 2014, she approached the Supreme Court.
• Judgment by the Supreme Court: In 2019, a Supreme Court Bench suggested that it should be heard by more judges (a larger Bench) because it relates to the 1998 Narasimha Rao decision.
  • And now the top court called for the need of a seven-judge Bench for a fresh look under Article 105(2) and Article 194(2).

Also Read: Privilege Motion

Understanding Legislative Immunity: Article 105 and 194(2) of the Indian Constitution

• Article 105 of the Constitution: It deals with the “powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof”.
• Article 105(2) of the Constitution: It states that no member of Parliament shall be liable to any proceedings in any court in respect of any thing 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.
• Extension of Immunity under article 105: The legal immunity also extends to certain non-members, such as, the Attorney General of India or a Minister who may not be a member but speaks in the House.
• Power lies with the Speaker: In cases where a member oversteps or exceeds the contours of admissible free speech, the Speaker of the House will deal with it.
• Article 194(2) of the Constitution: It extends the Article 105(2) immunity to MLAs and states, In the present case, the court has to decide if the legal immunity enjoyed by parliamentarians extends to prosecution for demanding or taking a bribe.

Conclusion:

The purpose of Article 105(2) and Article 194(2) is not to provide higher privileges in terms of immunity from the application of the general criminal law of the land, but to ensure that members of Parliament and state legislatures can discharge their duties without fearing the consequences that may ensue for how they speak or exercise their right to vote on the floor of the House.

DOWNLOAD PDF