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SC might reconsider judgment protecting MPs/MLAs who take cash for votes

  • Category
    Polity & Governance
  • Published
    26th Nov, 2022

Context

A five-judge Constitution Bench of the Supreme Court is going to review its decision in the 'JMM bribery scandal’, 1998 in which the lawmakers claim immunity from criminal prosecution for taking bribes in connection with a speech or vote in Parliament or a state assembly.

Background

  • In 1998, a five-judge Constitution Bench of the Supreme Court ruled that parliamentarians were afforded immunity from criminal prosecution for taking bribes in connection with a speech or vote in Parliament or a state assembly under Article 105 of the Constitution.
  • In a 3:2 ruling, the Constitution Bench held that Article 105 ‘protects a member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament.

Article 105 of the Constitution provides for the powers and privileges of the Houses of Parliament, their members and committees. It states that; ‘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 or any committee thereof

About

What are the Parliamentary Privileges?

  • They are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
  • Under these privileges, the members of Parliament are exempted from any civil liability (but not criminal liability)for any statement made or act done in the course of their duties.
    • The privileges are claimed only when the person is a member of the house.?
    • As soon as s/he ends to be a member, the privileges are said to be called off.
  • Parliament has not made any special lawto exhaustively codify all the privileges. They are rather based on five sources:
    • Constitutional provisions
    • Various laws made by Parliament
    • Rules of both the Houses
    • Parliamentary conventions
    • Judicial interpretations

Privileges mentioned are:

  • Freedom of Speech in Parliament:
    • The freedom of speech and expression guaranteed to a citizen under Article 19(2)is different from the freedom of speech and expression provided to a member of the parliament.?
    • It has been guaranteed under Article 105(1) of the Indian constitution.
    • But the freedom is subject to rules and orders which regulate the proceedings of the parliament.
    • Limitations:
      • Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
      • Under Article 121 of the Constitution,the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court.?
    • Freedom from Arrest:
      • The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session.?
      • No member can be arrested from the limits of the parliament without the permission of the houseto which s/he belongs so that there is no hindrance in performing their duties.
      • If the detention of any members of the parliament is made,the chairman or the speaker should be informed by the concerned authority, of the reason for the arrest.

But a member can be arrested outside the limits of the house on criminal charges against him under the Preventive Detention actthe Essential Services Maintenance Act (ESMA), the National Security Act (NSA), or any such act.

  • Right to Prohibit the Publication of Proceedings:

Laws governing acts of Corruption in India:

The call of action against the act of bribery or corruption can be taken under:

  • Crime Branch of India (CBI)
  • The Prevention of Corruption Act
  • Section 120B (Criminal Conspiracy) of IPC
  • Article 105(2)of the Constitution, no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member of the house.?
    • For paramount and national importance, the proceedings must be communicated to the public to aware them of what is going on in the parliament.
  • Right to Exclude Strangers:
    • The members of the house have thepower and right to exclude strangers who are not members of the house from the proceedings. This right is very essential for securing free and fair discussion in the house.
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