SC overrules majority verdict in JMM bribery case: ‘corruption and bribery by members of legislature erode probity in public life’

“We disagree with and overrule the judgment of the majority (in the JMM bribery case),” said the bench, which included Justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra.

Welcoming the court’s decision, Prime Minister Narendra Modi said in a post on ‘X’: “Swagatam! A great judgment by the Hon’ble Supreme Court which will ensure clean politics and deepen people’s faith in the system.”

In 1993, JMM leader Shibu Soren and some of his party MPs were accused of taking bribes to vote against the no-confidence motion against the then P V Narasimha Rao government. In its majority verdict in 1998, a five-judge SC bench quashed the case against the JMM MPs, citing immunity under Article 105(2).

On Monday, the bench said the 1998 judgment “has wide ramifications on public interest, probity in public life and parliamentary democracy” and “there is grave danger of this court allowing an error to be perpetrated if the decision were not reconsidered”.

“Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy. It is destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive and representative democracy,” the CJI said.

Stating that “corruption and bribery by members of the legislature erode probity in public life”, the court said that Articles 105 and 194 of the Constitution — which deal with the powers and privileges of Parliament, state legislatures, their members and committees thereof – “seek to create a fearless atmosphere in which debate, deliberations and exchange of ideas can take place within the Houses of Parliament and the state legislatures”.

“For this exercise to be meaningful, members and persons who have a right to speak before the House or any committee must be free from fear or favour induced into them by a third party,” it said. Saying that they “must be able to exercise their free will and conscience to enrich the functions of the House”, the bench said: “This is exactly what is taken away when a member is induced to vote in a certain way not because of their belief or position on an issue but because of a bribe taken by the member”.

“While some cherished freedoms exercised individually by members of the House, including the freedom of speech, have been undeniably understood to be essential to the functioning of the House as a whole, other exercises such as damaging public property or committing violence are not and cannot be deemed to have immunity,” it said.

“Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because 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,” it said. “The same principle applies to bribery in connection with a speech in the House or committee,” it said.

Discussing the evolution of the privileges of the House, the court said that “unlike the House of Commons in the UK, India does not have ancient and undoubted privileges which were vested after a struggle between Parliament and the King. Privileges in pre-independence India were governed by a statute in the phase of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution”.

“Whether a claim to privilege in a particular case confirms to the parameters of the Constitution is amenable to judicial review,” it said.

The court also held that “the privileges and immunities… belong to the House collectively” and “an individual member of the legislature cannot assert a claim of privilege to seek immunity… from prosecution on a charge of bribery in connection with a vote or speech in the legislature…” Where a member claims such privilege individually, it “must be tested on the anvil of whether it is tethered to the healthy and essential functioning of the House,” it said.

The bench disagreed with the argument that prosecution for bribery is excluded from the jurisdiction of the criminal courts and the position need not be changed as it is already being treated as contempt of the House or breach of privilege.

“The issue of bribery is not one of exclusivity of jurisdiction by the House over its bribe-taking members. The purpose of a House acting against a contempt by a member for receiving a bribe serves a purpose distinct from a criminal prosecution. The purpose of the proceedings which a House may conduct is to restore its dignity. Such a proceeding may result in the expulsion from the membership of the House and other consequences which the law envisages,” it said.

“Prosecution for an offence operates in a distinct area involving a violation of a criminal statute. The power to punish criminal wrongdoing emanates from the power of the state to prosecute offenders who violate criminal law. The latter applies uniformly to everyone subject to the sanctions of the criminal law of the land. The purpose, consequences, and effect of the two jurisdictions are separate. A criminal trial differs from contempt of the House as it is fully dressed with procedural safeguards, rules of evidence and the principles of natural justice,” it said.

The court also explained when an offence of bribery would be complete.

The “offence of bribery is complete at the point in time when the legislator accepts the bribe” and “does not matter whether a vote is cast in the agreed direction or if the vote is cast at all”, it said.

“The interpretation which has been placed on the issue in question in the judgment of the majority… (in the JMM bribery case) results in a paradoxical outcome, where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction” but “on the other hand a legislator, who agrees to accept a bribe, but decides to vote independently will be prosecuted,” it said, adding, “such an interpretation is contrary to the text and purposes of Articles 105 and 194.”

The question had arisen in the context of the allegations against JMM MLA Sita Soren, who was accused of accepting a bribe from an Independent candidate in the 2012 Rajya Sabha elections. She had later voted for her party candidate.

Sita Soren moved the Jharkhand High Court for quashing the criminal proceedings against her, citing provisions of Article 194 (2), but the HC declined to do so. She then approached the SC, where a two-judge Bench in September 2014 opined that since the issue was “substantial and of general public importance”, it should be placed before a larger bench of three judges.

On March 7, 2019, a bench of three judges took up the appeal and noted that the HC judgment dealt with the 1998 verdict, and hence should be referred to a larger bench, and it was ultimately referred to the seven-judge bench.