Though most have been quite horrified by the blatant horse-trading that took place in last Tuesday’s trust vote, and the lack of action on it so far, the standard refrain is the government can do precious little till the Supreme Court overturns the Jharkhand Mukti Morcha (JMM) judgment of April 19, 1998, where, by a vote of 3:2, the court said Article 105(2) of the Constitution offered immunity to MPs who’d taken a bribe to vote in a particular manner. But as should be pretty obvious, the Court is in no great hurry to move on the matter. Within a few months of the original judgment, the Court dismissed the CBI’s petition for a review on the grounds that the agency had delayed filing it. And while the judgment was referred to a larger bench in 2000, there has been no decision on it.
So, if the courts aren’t going to do anything, Parliament needs to step in. It needs to do so for a variety of reasons. One, the judgment keeps the door open for this kind of abuse from time to time, especially at the hands of a cynical Speaker and ruling party. Though the anti-defection law was further tightened by the NDA (now, two-thirds of the members of a party have to be willing to merge with another party instead of the earlier one-third), there is no check on the smaller parties like Ajit Singh’s and Shibu Soren’s.
Even in the case of the larger parties, there is enough scope for mischief. Technically, the Speaker has no option but to disqualify MPs who defy the party whip, but this can take forever — getting Jai Narayan Mishra disqualified from the Rajya Sabha when he campaigned for Lalu Prasad took the BJP well over a year, for instance. And, in Uttar Pradesh, BJP Speaker Kesrinath Tripathi refused to disqualify 13 of Mayawati’s MLAs who voted for Mulayam Singh in the 2003 vote of confidence — they were disqualified last year after the Court ordered this, but by then the damage had already been done. In the current case, what makes things trickier is that if Somnath Chatterjee decides to disqualify the MPs, it’ll be difficult for him to stay on since, like them, he has also been expelled from his party. If, on the other hand, an MP who cross-votes/abstains is automatically disqualified, his vote simply won’t count and so the chances of s/he being bought are remote.
But does Parliament have the authority to over-rule the courts, and should it? The answer to both is yes. Though the Constitution allows the courts to examine laws made by Parliament, Parliament is free to make laws that over-rule the courts. While Parliament initially found a way to get round the courts’ scrutiny by putting various laws it passed under Schedule 9, it continues to frame laws that keep the courts out of what it considers important — so, the UPA passed a special law to over-rule the Court judgment in favour of ITC in the excise evasion case; a new Master Plan was brought in to prevent court-ordered demolitions of illegal buildings in the capital; the list goes on.
But more than the legality is the question of the morality. After all, just because something’s legal doesn’t make it morally right. And from time to time, the government recognises this. So, in the early 1990s, when Justice V Ramaswamy was under attack for alleged wrongdoings, the government didn’t argue he had immunity; a three-member Committee of Inquiry was set up and the matter even reached Parliament, where he was to be impeached. That, of course, never happened since, to its discredit, the Congress Party abstained from the vote — two-thirds of votes are required to impeach a judge.
In the case of Justice Shamit Mukherjee, who was allegedly in cahoots with middleman Dharamveer Khattar in the DDA land scam, similarly, the government never cited his immunity. As Law Minister Arun Jaitley said he’d ensure government sanction was given for prosecuting a sitting judge; Mukherjee resigned, his immunity disappeared, and he’s facing prosecution.
Ditto for the infamous Shibu Soren, who is all set to become coal minister as part of his deal to support Dr Manmohan Singh last Tuesday. The last time Soren was a minister and charged with murder, he hoped to escape prosecution since he was a Cabinet minister. But he was asked to step down and, with it, his immunity went as well. He was finally let off in the courts, but that’s a different matter.
And in the infamous cash-for-questions case, where MPs were taking money to ask questions in Parliament, you’d think the same freedom of speech [105(1)] and the protection given for it [105(2)] that was upheld in the JMM verdict would apply. Yet, when the scandal broke in December 2005, ironically through a sting operation of the type CNN-IBN carried out last Tuesday, parliamentarians were quick to do damage control — indeed, the MPs were disqualified even though the BJP (which had the most MPs in the net) protested vehemently.
In other words, if the leading political parties are not moving to find a way to fix the JMM loophole, it’s only because they don’t want to. After all, if the next legislature is going to be equally fragmented, who wants to block the chance of being able to buy a few dozen MPs?
