No doubt immunity from court proceedings for anything spoken, or for a vote, by MPs is necessary for free speech in Parliament. But this immunity of free speech was never intended to shield a member like Shibu Soren who took bribes for his speech or vote.
THE BACKGROUND to Shibu Soren’s conviction for murder on December 5, 2006 is a sordid tale. It is a story going back to July 1993, of Members of Parliament who were bribed to defeat a no-confidence motion in Parliament against the Narasimha Rao government. Surprisingly and fortunately for Mr. Soren and other MPs who had taken bribes, they were discharged from their prosecution in the criminal cases against them. In a dubious decision rendered on April 19, 1998 in their cases, the Supreme Court held that MPs who vote by accepting bribes enjoy a constitutional immunity from prosecution.
The motive for the murder for which Mr. Soren has been convicted and sentenced to life imprisonment was a threat by his private secretary, Shashinath Jha. The threat was to expose the bribe of Rs. 2.80 crore taken by Mr. Soren and three other members of the Jharkhand Mukti Morcha party in Parliament unless the secretary was adequately paid out of the bribe received by Mr. Soren. The taking of the bribes remained unexposed till January 28, 1996, when on a complaint four cases came to be registered by the Central Bureau of Investigation. These cases were against Narasimha Rao and others as bribe givers and Mr. Soren and others as bribe takers - under the Prevention of Corruption Act, 1947 in the Court of the Special Judge CBI, New Delhi.
Shibu Soren then made a representation on October 5, 1996 to the Speaker of the Lok Sabha. His contention was that the criminal cases against him were barred because of immunity of freedom of speech and vote given to Members of Parliament under Article 105 (2) of the Constitution. The Speaker referred Mr. Soren to a court for the legal question involved.
By an order of May 6, 1997, the Special Judge, CBI hearing the criminal complaints of bribery rejected the plea of immunity raised by Mr. Soren and others, as did the Delhi High Court in a revision against the order.
However, on April 19, 1998, a constitutional bench of five judges of the Supreme Court in P.V. Narasimha Rao vs. CBI held by a majority of 3 to 2 that Mr. Soren and other bribe takers - who had taken bribes and voted against the no-confidence motion - were immune from prosecution; but the bribe givers had no such immunity and could be prosecuted. On June 4, 1999, the Special Judge CBI following the Supreme Court judgment discharged Mr. Soren and other Members of Parliament who had taken bribes and voted against the no-confidence motion.
Mr. Soren thus escaped prosecution for accepting bribes simply because he had voted in Parliament in pursuance of a conspiracy to take bribes. The wheels of justice however grind slowly but surely and on December 5, 2006 he was convicted of the more heinous crime of murder.
According to the 1998 majority judgment of the Supreme Court, the immunity from prosecution is given by one of the privileges of Parliament in Article 105 (2) of the Constitution. Article 105 (2) 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 Parliament." The majority view is that a prosecution of a Member of Parliament who takes bribes and votes in pursuance of the bribe is "in respect" of his vote in Parliament and so he cannot be prosecuted. The majority stated: "To enable members of Parliament to participate fearlessly in Parliament debates members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote."
Two other judges, on the other hand, held that the immunity to a Member of Parliament from any proceedings in a court would be available only for the speech or vote he had given in Parliament and not for an act like the taking of a bribe that preceded the making of the speech or vote in Parliament even though the act of taking bribes may have a connection with the speech or vote given by him. They held that the crime of conspiracy to bribe is completed with the agreement to bribe independently whether the member does or does not vote in Parliament and therefore there is no question of impeaching his speech or vote when he is prosecuted for taking bribes. This is also the view of courts in Australia, Canada, and of the U.S. Supreme Court. Most countries that recognise privileges of Parliament and their members treat the bribery of MPs as a criminal offence rather than a breach of privilege.
Majority judgment
The majority judgment of the Supreme Court encourages corruption at the highest level by the people’s representatives in Parliament. No doubt immunity from court proceedings for anything spoken, or for a vote, by MPs in Parliament is necessary for free speech in Parliament. But this immunity of free speech was never intended to shield a member who took bribes for his speech or vote.
Lord Salmon, speaking of this problem in the U.K. Parliament, stated: "To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe stems from the Bill of Rights is a serious mistake." (Article 9 of the Bill of Rights gives immunity from court proceeding for any speech or vote in Parliament.) Lord Salmon said that the crime of corruption was complete when the bribe was offered or taken.
Likewise, in a memorable statement, an Australian judge said: "A Member is the watchdog of the public; and Cerberus must not be seduced from vigilance by a sop. I see no reason to doubt that if the prosecution were confined to an agreement as to the action of the member outside the House - action in which the member used his position as member - the agreement would be an indictable conspiracy."
The majority of the Supreme Court acknowledged that this was the widespread view in all countries. However, it drew support from one dissenting judgment of Justice Brennan in the U.S. Supreme Court in the case of Senator Brewster.
The majority of the U.S. Supreme Court held that the Senator could be prosecuted for corruption for his speech in the Senate but, according to Justice Brennan, proof of an agreement to bribe must necessarily involve an inquiry into the motives of a member in voting, which was not permissible.
In the U.K., at one time it was believed there was no offence punishable if an MP took bribes but the opinion now is decisively to the contrary. There is a proposal to have a law in the U.K. by which a Member of Parliament can be punished for corruption and the immunity of free speech would not apply to such a prosecution.
The view of the majority of the Supreme Court was not supported by Parliament itself. In Narasimha Rao’s case, the Attorney-General and the Solicitor-General, who generally appear for upholding parliamentary privileges, not only did not support the so-called immunity; they supported the prosecution.
The majority judgment of the Supreme Court had a queer consequence. It held that the bribe takers could not be prosecuted with the exception of Ajit Singh - who was also a bribe taker but who the court mistakenly believed had abstained from voting in the no-confidence motion. The court therefore allowed the prosecution of Mr. Singh. It turned out that he had, in fact, voted but voted in favour of the no-confidence motion even with the bribe! Mr. Singh therefore sought a review of the court’s judgment; the court rejected the review; and the Special Judge, CBI did not discharge him from the prosecution, apparently because his vote was not influenced by the bribe taken!
A review of the majority judgment was sought by the CBI as it had such far-reaching implications for a clean public life. However, on December 16, 1998, a bench of five judges, three of whom had sat on the earlier apex court bench, dismissed the review because "there was an inordinate delay of 179 days in filing the review petitions and there was no satisfactory explanation for the delay." Review of a Supreme Court’s judgment of this serious character could not have been dismissed simply because of delay in approaching the court. It is said that "a century of error should not be perpetuated by a mistake by the court."
We shall have to await another opportune moment for the Supreme Court to reconsider its anomalous view if Members of Parliament like Shibu Soren are not to escape prosecution for accepting bribes.
(The writer is a senior advocate of the Supreme Court and former Solicitor-General of India.)
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