Read Time: 11 minutes

Synopsis

The Supreme Court has been told that provisions of the Constitution must be so interpreted, that the persons committing crime are brought to justice and are not able to claim immunity from criminal liability in the garb of parliamentary privilege.
The Court was informed that persons with criminal backgrounds entering Parliament and State Legislative Assemblies and making laws, has a serious impact on the democratic set up in the country.

It has been submitted that the constitutional provisions regarding parliamentary privilege and immunity from prosecution by the legislators, must be interpreted having regard to the context of large scale criminalisation of politics and on the touchstone and through the prism of constitutional morality, senior advocate Vijay Hansaria told the top court.

In a written submission, he said that the majority judgement of this court in P V Narasimha Rao (1998) does not lay down the correct law and the view expressed by the minority judgement (by Justice S C Agarwal) may be held to be the correct law by the present larger bench.

The top court had on September 20 in the Sita Soren case referred the matter to the larger seven-judge bench for reconsideration its 1998 judgement in the P V Narasimha Rao case, related to the 1993 JMM bribery scam, which granted immunity to MPs/MLAs from prosecution if they accepted bribery and voted or asked a question in a particular manner. 

"Criminalisation in politics has been deep rooted in the Parliamentary democracy of our country. The Parliamentarians and the Legislators cannot seek immunity from prosecution in the garb of parliamentary privilege. The majority view in PV Narasimha Rao would only encourage people with criminal antecedents to enter precincts of Parliament/ State Legislature and the number of such people will surge, increase and expand instead of being truncated or brought down," he said.

The written submissions have stated that the majority judgement granting immunity to all the acts of member of Parliament “that relates to or concern or have a connection or nexus with anything said or a vote given, by him in Parliament” is too wide and does not encompass within the expression “in respect of” used in clause (2) of Article 105 of the Constitution. 

"The expression “in respect of” must be interpreted to mean only those acts that are essential for undertaking the legislative functions. No privilege can be claimed from criminal prosecution, the penal laws of the country are applicable to the legislators in the same way as applicable to the ordinary citizens. The privileges are only those which begin and terminate within the walls of the House. All actions outside the House are subject to adjudication by the Courts," he said.

"The immunity conferred under Articles 105(2) and 194(2) is only a ‘qualified immunity’ and not an ‘absolute immunity’. Qualified immunity balances two competing rights, namely, grant freedom of speech and vote to the
Parliamentarians inside the House and hold them accountable for any crime committed outside the House," he added.

Hansaria said the commission of any crime can never relate to “in respect of anything said or any vote given by him in Parliament”; and no legislator can claim immunity from criminal prosecution by seeking the protection of parliamentary privilege conferred under Articles 105(2) and 194(2).

"Every person is liable for prosecution for offences committed by him/her under the penal law of the country. If the immunity from prosecution is granted, the criminalisation of politics would get a boost instead of being curbed. The immunity would be an easy escape for the law makers to avoid consequences of all penal offences, including heinous offences, by claiming that such an act was “in respect of anything said or any vote given by him in Parliament"," he wrote.

The immunity, if allowed, would be limited not only to corruption cases, but can be claimed even in respect of serious and heinous offences, such as, breach of Protection of Children from Sexual Offences Act, 2012, Unlawful (Activities) Prevention Act, 1967, Prevention of Money Laundering Act, 2002, hate speech etc, he added.

"It would be a licence to the legislators to commit a crime, without fear of prosecution, and thereafter claim immunity by creating a so called nexus with the speech or vote given in the House," he said.

He also cited the Supreme Court's judgements in the case of Dinesh Trivedi (1997) and Association of Democratic Reforms (2002), People's Union for Civil Liberties (2003), K Prabhakaran vs P Jayarajan (2005), Manoj Narula (2014) and Public Interest Foundation (2019), which have raised concern on criminalisation of politics.

The senior counsel also relied upon the Supreme Court's order in a PIL filed by Ashwini Kumar Upadhyay which in 2016 directed setting up of Special Courts against MPs/MLAs and passed a series of directions for expeditious trial thereof. "However, the number of pending cases have increased from time to time instead of being reduced," he said.

Hansaria also referred to the reports of the Dinesh Goswami committee (1990), Justice J S Verma (2013), Law Commission's 239 th and 244 th reports in 2012 and 2014 respectively and the National Commission to Review the Working of the Constitution headed by former Chief Justice of India, Justice M N Venkatachaliah (2000) raising concerns on criminalisation of politics.

 

Case Title: Sita Soren Vs Union of India