SC to hear if lawmaker can invoke immunity to escape trial

New Delhi: A five-judge constitution bench of the Supreme Court will begin hearing on five matters, including whether a member of legislative assembly can escape criminal prosecution for accepting or offering bribe by citing immunity under Article 194(2) of the Constitution.

Other matters before the constitution bench include the interpretation of Section 24 of the right to fair compensation and transparency in land acquisition, Rehabilitation and Resettlement Act, 2013, whether a citizen is entitled to seek information on the appointment of top court and high court judges and challenge to the restructuring and re-organisation of 19 tribunals that was brought by the 2017 Finance act.

The hearing will commence on March 27.

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The question whether article 194(2) of the Constitution confers any immunity on the members of the legislative assembly for being prosecuted in a criminal case for an offence involving offer or acceptance of bribe is rooted in the election of two Rajya Sabha seats from Jharkhand in March 2012.

The Jharkhand High Court had by its February 17, 2014 order rejected the plea for the quashing of a trial court order taking cognizance by one JMM lawmaker Sita Soren for allegedly accepting money from a contestant.

Later Election Commission countermanded the election to the Rajya sabha from Jharkhand.

In the right to fair compensation and transparency in land acquisition, the bench would examine the correctness of the payment of compensation to the land owners whose land has been acquired as well as when the award granting compensation would come into effect.

The matter was referred to the Constitution bench following conflicting judgements by two bench of the top court – each bench with three judges.

The three-judge bench headed by former Chief Justice R.M. Lodha had in 2014 held that if the compensation for acquiring land under 1894 Land Acquisition Act has not been paid to the landowner or deposited with the competent court and the same was retained in the government treasury, then it (land acquisition) would be treated as having lapsed and would be covered under the new 2013 land acquisition law entitling landowners a higher compensation.

“The deposit of a compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested,” Justice Lodha along with Justice Madan B. Lokur and Justice Kurian Joseph had said in 2014.

But this was overruled by a majority of three-judge bench comprising Justice Arun Mishra, Justice Adarsh Kumar Goel and Justice Mohan M. Shantanagoudar on February 8, 2018. Justice Shantanasgoudar dissented.

The February 2018 verdict had held that 2014 judgement was passed without taking into account the provisions of the 2013 law on land acquisition.

Another significant hearing would be challenge to the Finance Act 2017 relating to the restructuring and re-organisation including the appointment, removal and the service conditions of the members of 19 tribunals.

The Tribunal, Appellate and other Authorities (Qualifications, Experience and other conditions of Service of Members) Rules, 2017 was brought as a part of the Finance Act, 2017.

It has been contended that the restructuring and re-organisation of the 19 tribunals, by the law under challenge, would shadow their independence.

The hearing on the appeal by top court’s Central Public Information Officer (CPIO) challenging November 24, 2009, Central Information Commission’s order directing the CPIO to furnish the information sought by one Subhash Chandra Agrawal on the appointment of judges to top court could bring it in the ambit of Right to Information Act.

The matter was referred to the Constitution bench on August 17, 2016.

Agrawal had in 2009 sought “complete file/s (only available in Supreme Court) inclusive of copies of complete correspondence exchanged between constitutional authorities with file notes relating to the said appointment of Justice H.L. Dattu, Justice A.K. Ganguly and Justice R.M. Lodha superseding seniority of Justice P. Shah, Justice A.K. Patnaik and . Justice V.K. Gupta.”

Both Justice Dattu and Justice Lodha went on to become Chief Justice of India.

The Constitution bench would adjudicate the question “whether the concept of independence of judiciary demands the prohibition of furnishing of the information sought and whether the information sought amounts to interference in the functioning of the judiciary.

Other questions that would be addressed include “whether the information sought cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries.


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