Privilege to Members of Parliament and State Legislatures

What’s in Today’s Article?

• Why in News?
• Privileges and Immunities to the MPs and MLAs
• Some Judicial Interpretations of these Privileges and Immunities
• News Summary Regarding SC Referring P V Narasimha Rao Case to a Larger Bench

Why in News?

• The Supreme Court referred a 1998, 5-judge Constitution Bench judgement (in the P V Narasimha Rao case) to a 7-judge Bench, as the issue deeply affects the morality of the Indian polity.
• In its 1998 judgement, the majority of the SC Bench had held that legislators have immunity against criminal prosecution on bribery charges for any speech or vote in Parliament.                                  

Privileges and Immunities to the MPs and MLAs:

• Meaning: Privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament and legislature of States, and their committees and their members.
  • The Constitution has also extended these privileges to those persons who are entitled to speak and take part in the proceedings of a House or any of its committees.
  • For example, Attorney General of India.
• Constitutional provisions: Article 105 and Article 194 to the Constitution of India grant privileges or advantages to the MPs (Article 105) and to the MLAs (Article 194) of every State.
  • These powers, privileges and immunities should be defined by the law from time-to-time.
  • These privileges are considered as special provisions and have an overriding effect in conflict.
  • It must be clarified here that these privileges do not extend to the President  (or Governor) who is also an integral part of the Parliament (or state legislature).
• Privileges mentioned in the Constitution:
  • It gives the MPs freedom of speech [Article 115 (1)].
  • It provides that no MP will be liable to any proceedings before any Court for anything said or any vote given by him/her in the Parliament or any committee thereof [Article 105(2)].
    • Also, no person will be held liable for any publication of any report, paper, votes or proceedings if the publication is made by the parliament or any authority under it.
  • The same provisions are stated under Article 194, where MLAs of a state are referred instead of MPs.
• Purpose: These privileges and immunities -
  • Are granted so that MPs/MLAs can perform their duties or can function properly without any hindrances - essential for democratic functioning of the legislatures.
  • Without these privileges,
    • The Houses can neither maintain their authority, dignity and honour.
    • Nor can protect their members from any obstruction in the discharge of their parliamentary responsibilities.
• Difference between Article 19 and Article 105:
  • Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about freedom of speech.
  • Article 105 applies to the members of parliament not subjected to any reasonable restriction. But, Article 19(1)(a) applies to citizens and is subject to reasonable restrictions.
  • This means, Article 105 is an absolute privilege given to the members of the parliament but this privilege can be used in the premises of the parliament and not outside the parliament.

Some Judicial Interpretations Regarding these Privileges and Immunities:

• P.V. Narsimha Rao Case (1998):
  • In this case, the question arose that under Article 105(2) does any member of parliament have any immunity to protect himself in criminal proceedings against him.
  • The apex court (by a 3:2 majority) granted immunity from prosecution (under the Prevention of Corruption Act 1988) to MPs who took bribes and voted to save the then Congress government in Parliament.
  • Recently, SC referred this controversial judgement - whether bribe-taking MPs should be entitled to immunity under Article 105(2) whether they vote or not - to a larger (7-judges) bench.
• Keshava Singh Case (1965):
  • The Court explained that in the matters of privileges stated under the Constitution of India, the house will be considered as the sole and exclusive judge.
  • But if any such privilege is not mentioned in the Constitution of India, then it’s the Court who has to decide upon it.

News Summary Regarding SC Referring P V Narasimha Rao Case to a Larger Bench:

• The P V Narasimha Rao case refers to the 1993 JMM bribery case, in which 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.
  • The SC had quashed the case against the JMM MPs, citing immunity under Article 105(2).
• Recently, the matter came up in another case related to bribery charges against JMM MLA Sita Soren, who was accused of having accepted a bribe to vote for an independent candidate in the 2012 Rajya Sabha elections.
  • She moved the Jharkhand HC for quashing the chargesheet and criminal proceedings against her, relying on the provisions of Article 194 (2), but the HC had declined to do so.
  • She then approached the SC, where a 2-judge Bench in 2014 opined that since the issue was “substantial and of general public importance”, it should be placed before a larger Bench of 3 judges.
  • In 2019, a Bench of 3 judges noted that the SC dealt with the issue in the Narasimha Rao verdict, and hence should be referred to a larger Bench.
• Taking up the matter, a 5-judge Constitution Bench presided by CJI recently said that the larger Bench would deal with the question of correctness of the view of the majority [in P V Narsimha Rao case] on the interpretation of Articles 105(2) and 194(2) of the Constitution.
  • The object of Articles 105(2) and 194(2) is not to set apart the members of the Legislature as persons who wield immunity from the application of the general criminal law of the land.

Q1) What is a Constitution Bench of the Supreme Court of India?

A constitution bench consists of at least 5 or more judges of the court which is set up to decide substantial questions of law with regard to the interpretation of the constitution in a case. The provision for a constitution bench has been provided in the Constitution of India under Article 143.

Q2) What is the office of the Attorney General of India?

The Attorney General of India is the chief legal advisor of the Government of India. The attorney general is appointed by the President of India at the instance of the Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.

Source: Immunity to legislators on bribery: Supreme Court to revisit order