As per case facts, a 'No Confidence Motion' against the government was defeated due to an alleged criminal conspiracy involving bribing Members of Parliament to secure votes. Charge sheets were ...
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CASE NO.:
Appeal (crl.) 1207 of 1997
PETITIONER:
P.V. NARASIMHA RAO
RESPONDENT:
STATE(CBI/SPE)
DATE OF JUDGMENT: 17/04/1998
BENCH:
S.C.AGRAWAL & G.N.RAY & A.S.ANAND & S.P.BHARUCHA & S.RAJENDRA BABU
JUDGMENT:
JUDGMENT
DELIVERED BY:
S.C.AGRAWAL,J.
S.P.BHARUCHA J.
G.N.RAY, J.
S.C. AGRAWAL, J.
Whether by virtue of Article 105 of the Constitution a
Member of Parliament can claim immunity from prosecution on
a charge of bribery in a criminal court, and whether a
Member of Parliament is a "public servant" falling within
the purview of the Prevention of Corruption Act, 1986
[hereinafter referred to as `the 1988 Act']. These are the
two questions which have come up for consideration before
this bench in these matters.
In the General Election for the Tenth Lok Sabha held in
1991 the Congress (I) part, emerged as the single largest
party and it formed the Government with P.V. Narsimha Rao
[hereinafter referred to as `A-1] as the Prime Minister. In
the Monsoon Session of Lok Sabha July 1993 a `No Confidence
Motion' was moved against the Government by Shri Ajay
Mukhopadhyaya, a CPI(M) M.P. At that time the effective
strength of the House (Lok Sabha) was 528 and Congress (I)
party had 251 members. It was short by 14 members for simple
majority. The Motion of No-Confidence was taken up for
discussion in the Lok Sabha on July 20 1993 and the debate
continued till July 28, 1993. The motion was thereafter put
to vote. The motion was defeated with 251 members voting in
favour of the motion, while 265 voting against it. On
February 28, 1996, on Shri Ravindra Kumar of Rashtriya Mukti
Morcha filed a complaint dated February 1, 1996 with the
Central Bureau of Investigation [for short `CBI'] wherein it
was alleged that in July 1993 a criminal conspiracy was
hatched by A-1, Satish Sharma [hereinafter referred to as
`A-2], Ajit Singh [hereinafter referred to as `A-13], Bhajan
Lal [hereinafter referred to as `A-14], V.C. Shukla, R.K.
Dhawan and Lalit Suri to prove a majority of the Government
on the floor of the House on July 28, 1993 by bribing
Members of Parliament of different political parties,
individuals and groups of an amount of over Rs.3 crores and
that in furtherance of the said criminal conspiracy a sum of
Rs. 1.10 crores was handed over by the aforementioned
persons, except A-15, to Suraj Mandal [hereinafter referred
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to as `A-3]. On the basis of the said complain the CBI
registered four cases under Section 13(2) read with Section
13(1)(d)(iii) of the 1988 Act against A-3, Shibu Soren
[hereinafter referred to as `A-4], Simon Marandi
[hereinafter referred to as `A-5'] and Shallendra Mahto
[hereinafter referred to as `A-6'], Members of Parliament
belonging to the Jharkhand Mukti Morcha party [for short
`JMM']. Subsequently in pursuance of the order dated May 24,
1996 passed by the Delhi High Court in Civil Writ Petition
No. 23/96 another case was registered on June 11, 1996
against A-1, A-2, A-3, A-4, A-5, A-6, A-14, A-15. V.C.
Shukla, R.K. Dhawan, Lalit Suri and others under Section
120-B-IPC and Section 7, 12, 13(2) read with Section
13(1)(d)(iii) of the 1988 Act. After completing the
investigation, the CBI submitted three charge sheets dated
October 30, 1996, December 9, 1996 and January 22, 1977 in
the court of Special Judge, New Delhi. In the first charge
sheet dated October 30, 1996 it was stated that
investigation had revealed that A-1, A-2, A-3, A-4, A-5, A-
6, Buta Singh [hereinafter referred to as `A-7'], and other
unknown persons entered into a criminal conspiracy to defeat
the `No Confidence Motion' by resorting to giving and
accepting of gratification as a motive or reward and in
pursuance thereof four Members of Parliament belonging to
JMM) A-3, A-4, A-5 and A-6) accepted illegal gratification
to vote against the Motion and because of their votes and
some other votes the Government led by A-1 survived. It was
also stated in the charge sheet that investigation has also
revealed that the four Members of Parliament belonging to
JMM had been bribed in crores of rupees for voting agains
the `No Confidence Motion'. The said charge sheet was filed
against A-1, A-2, A-3, A-4, A-5, A-6 and A-7 and other
unknown persons in respect of offences under Section 120-B
IPC and Sections 7, 12, 13(2) read with Section
13(1)(d)(iii) of the 1988 Act and substantive offences
thereunder. The second charge sheet dated December 9, 1996
was in the nature of a supplementary charge sheet wherein it
was stated that investigation has further revealed that V.
Rajeshwar Rao [hereinafter referred to as `A-8'], N.M.
Revanna [hereinafter referred to as `A-9], Ramalinga Reddy
[hereinafter referred to as `A-12] and M. Thimmegowda
[hereinafter referred to as `A-13] were also parties to the
criminal conspiracy which is the subject matter of the first
charge sheet filed on October 30, 1996 and in pursuance to
the said criminal conspiracy they had arranged funds and
bribed the four JMM MPs as the motive or award to secure
their support to defeat the `No Confidence Motion' and
thereby committed the offences punishable under Section 120-
B IPC and Section 7, 12, 13(2) read with Section
13(1)(d)(iii) of the 1988 Act and substantive offences
thereunder along with the original seven accused. In the
third charge sheet dated January 22, 1997, which was
described as `Supplementary Charge Sheet No. 2', it was
stated that further investigation has been carried on under
Section 173(8) of Cr. P.C. and as a result identity of
remaining accused persons has been established and that they
are A-14, A-15, Ram Lakhan Singh Yadav [hereinafter referred
to as `A-16'], Ram Sharan Yadav [hereinafter referred to as
`A-`7'], Roshan Lal [hereinafter referred to as `A-18'],
Abhay Pratap Singh [hereinafter referred to as `A-19'],
Anadi Charan Das [hereinafter referred to as `A-20'], Haji
Gulam Mohd. Khan [hereinafter referred to as `A-21] and late
G.C. Munda [hereinafter referred to as `A-22']. It was
stated that even after securing the support of four JMM MPs
in the manner stated in the first charge sheet dated October
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30, 1996 and second charge sheet dated December 9, 1996 the
Congress (I) Government still required the support of some
more MPs and that with this objective the Congress (I) led
by A-1 was making efforts to win the support of some other
MPs including MPs belonging to Janta Dal (Ajit Group) [for
short `JD(a)]. In the charge sheet it was also stated that
A-14, A-15, A-16, A-17, A-18, A-19, A-20, A-21 and A-22'
were parties to the criminal conspiracy along with A-1 to A-
13 already named in the earlier two charge sheets and in
pursuance to the said criminal conspiracy A-14 had arranged
funds and had paid bribes to A-15 and the seven MPs of the
breakaway JD(A) as a motive or award to secure their support
to defeat the `No Confidence Motion and thereby committed
the offences punishable under Section 120-B IPC and Section
7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act
and substantive offences thereunder.
An application was submitted by A-6 (Shailendra Mahto)
under Section 306 Cr. P.C. for grant of pardon for being
treated as an approver. The said application was referred to
the Magistrate for recording his statement under Section 164
Cr. P.C. and after considering the said statement the
Special Judge, by order dated April 5, 1997, allowed the
application of A-6 and tendered pardon to him on the
condition of his making a full and true disclosure of all
the circumstances within his knowledge relating to the
offences of every other person concerned, whether as a
principal or abettor in the commission of the offences under
the charge sheets. After hearing the arguments on charges,
the Special Judge passed the order dated May 6, 1997 wherein
he held that there is sufficient evidence on record to
justify framing of charges against all the appellants. In so
far as A-1, A-2, A-7 and A-8' to A-14 are concerned, the
Special Judge held that there is sufficient evidence on
record to justify framing of charges under Section 120-B IPC
read with Section 7, 12, 13(2), read with Section 13(1)(d)
of the 1998 Act and also for substantive offence punishable
under Section 12 of the 1988 Act against all of them. So far
as A-3 to A-5 and A-15 to A-21 are concerned, the Special
Judge held that there is sufficient evidence on record to
justify framing of charges under Section 120-B IPC read with
Section 7,12, 13(2) read with Section 13(1)(d) of t he 1988
Act and as well as charges for substantive offence
punishable under Section 7 and Section 13(2) read with
Section 13(1)(d) of the 1988 Act against all of them. The
Special Judge also held that there is prima facie evidence
of commission of offence under Section 193 IPC by accused
Nos. A-3 to A-5.
Before the Special Judge, an objection was raised n
behalf of the accused persons that the jurisdiction of the
Court to try the case was barred under Article 105(2) of the
Constitution because the trial is in respect of matters
which relate to the privileges and immunities of the House
of Parliament (Lok Sabha) and its Members inasmuch as the
foundation of the charge sheets is the allegation of
acceptance of bribe by some Members of Parliament for voting
against the `No Confidence Motion' and that the controversy
to be decided in this case would be in respect of the motive
and action of Members of Parliament pertaining to the vote
given by them in relation to the `No Confidence Motion'.
The Special Judge rejected the said contention on the view
that in the present case voting pattern of the accused
persons was not under adjudication and they were sought to
be tried for their illegal acts committed outside
Parliament, i.e., demanding and accepting the bribe for
exercising their franchise in a particular manner, and the
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accused persons are not being prosecuted for exercising
their right of vote but they are being prosecuted on the
allegations that they while holding a public office demanded
and accepted illegal gratification for exercising their
franchise in a particular manner which is an offence
punishable under the 1988 Act and that Article 105 of the
Constitution does not provide any protection to the accused
persons. Another contention that was urged before the
Special Judge was that a Member of Parliament is not a
public servant for the purpose of the 1988 Act and as such
giving and taking of the alleged illegal gratification does
not amount to any offence punishable under the provisions of
the 1988 Act and there cannot be any offence of conspiracy
of giving and taking of bribe by a Member of Parliament. The
said contention was rejected by the Special Judge on the
view that the question whether a Member of Parliament is a
public servant is concluded by the decision of the Delhi
High Court in the cases of L.K. Advani v. Central Bureau of
Investigation wherein it has been held that Member of
Parliament is a public servant under the 1988 Act. It was
also urged before the Special Judge that the case could not
be proceeded against the accused persons since previous
sanction for prosecution under Section 19 of the 1988 Act
had not been obtained. The said contention was also rejected
by the Special Judge on the ground that no previous sanction
of prosecution for an accuse under Section 19 is necessary
if he has ceased to hold a public office which was allegedly
misuse by him and in the present case at the time of filing
of the charge sheets and on the sate of taking of cognizance
by the Court Tenth Lok Sabha had come to an end and after
the Election in 1996 at the accused persons who were the
members of the Tenth Lok Sabha had ceased to hold the office
as Members of the said Lok Sabha and therefore under law no
sanction for their prosecution is required and furthermore
accused persons are sought to be tried for criminal
conspiracy under Section 120-B IPC read with Sections 7, 12,
13(2) OF of the 1988 Act as well as the substantly offences
and that according to Section 19 of the 1988 Act sanction is
required only in respect of the offences punishable under
Section 7 and 13 and these substantive offences were alleged
committed by Members of Parliament who had accepted the
illegal gratification for voting again the `No Confidence
Motion' and that no sanction is required in the case of a
Member of Parliament or a Member of the State Legislature
though he is a public servant because there is no
sanctioning authority qua him. Revision Petitions filed by
the appellants against the said order of the Special Judge
have been dismissed by the impugned judgment of the Delhi
High Court. In the High Court the following contentions were
urged by the appellants :-
(i) Even if the allegations of the prosecution were
accepted, the Court would have no jurisdiction to
fasten any criminal liability on the accused persons as
whatever allegedly happened was in respect of votes
given by some of them in the Lok Sabha and that, in any
case, whatever transpired, touched the privileges of
the House within the meaning of clauses (2) and (3) of
Article 195 of the Constitution.
(ii) Member of Lok Sabha hold no office an d as such are not
public servants within the meaning of Section 2(c) of
the 1988 Act and that for that reason the 1988 Act
would not apply to the alleged acts of omission and
commission of the accused persons.
(iii)Even if it be taken that Members of Lok Sabha do fall
within Section 2(c) of the 1988 Act and are thus taken
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to be public servants, yet the Act would not apply for
the simple reason that in the case of Lok Sabha Members
there is no authority competent to remove them from
their office within the meaning of Section 19(1)(c) of
the 1988 Act.
(iv) In the case of A-1, A-9, A-10, A-11 and A-13 there is
nothing to show that they had conspired or were part of
any conspiracy.
(v) Sanction was required under Section 197 Cr. P.C. to
prosecute A-1.
(vi) No case is made out for framing the charges against the
appellants.
While dealing with the first contention based on
clauses (2) and (3) of Article 105 of the Constitution the
High Court has held that to offer bribe to a Member of
Parliament to influence him in his conduct as a member has
been treated as a b reach of privilege in England but merely
treating the commission of a criminal offence as a breach of
privilege does not amount to ouster jurisdiction of the
ordinary court to try penal offences and that to claim that
in such matters the courts would have no jurisdiction would
amount to claiming a privilege to commit a crime. The High
Court has also pointed out that four notices of a question
of privilege dated February 26 and 27, 1997 were given by
four members of Lok Sabha, namely, Sarva Shri Jaswant Singh,
Indrajit Gupta, Arjun Singh and Jagmeet Singh Brar against
A-1 and the four members belonging to JMM (A-3 to A-6). The
notices were forwarded to the said accused for comments and
after discussion on the said notices during which members of
all parties expressed their views the Speaker disallowed the
notice given by Shri Arjun Singh on March 11, 1996 and the
notices of a question of privilege given by Sarva Shri
Jaswant Singh, Indrajit Gupta and Jagmeet Singh Brar were
disallowed by the Speaker on March 12, 1996. The second
submission that a Member of Parliament is not a public
servant under Section 2(c) of the 1988 Act was rejected by
the High Court on the view that that a member of Parliament
holds an office and is a public servant falling under clause
(viii) of Section 2(c) of the 1988 Act. The third contention
that the 1988 Act is not applicable to a Member of
Parliament since there is no authority competent to remove
him from his office for the purpose of granting sanction
under Section 19(1)(c) of the 1988 Act was also not accepted
by the High Court. It was held in the absence of an
authority to remove a Member of Parliament does not mean
that the 1988 Act would not be applicable to him. As regards
the requirement of sanction under Section 197 Cr. P.C. as
against A-1, the High Court held that A-1 was a party to
actual bribing of Members of Parliament and that it is no
job of a Prime Minister to hatch or be a party to such a
criminal conspiracy and that what A-1 did cannot fall within
the ambit of the words "while acting of purporting to act in
the discharge of his official duty" in Section 197 Cr. P.C.
The High Court thereafter examined the material on record in
relation to each accused person and found that there was no
ground for interfering with the order passed by the Special
Judge.
Felling aggrieved by the said judgment of the High
Court, the appellants have filed these appeals. The appeals
were heard by a bench of three Judge. After hearing the
arguments of the learned counsel, the following order was
passed by that bench on November 18, 1997 :-
"Among other questions, a
substantial question of law as to
the interpretation of Article 105
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of the Constitution of India is
raised in these petitions. These
petitions are, therefore, required
to be heard and disposed of by a
Constitution Bench.
Accordingly, the Registry is
directed to place these petitions
before Hon'ble the Chief Justice
for necessary orders."
In pursuance of the said order, the matter has been placed
before us. At the commencement of the hearing, we passed the
following order on December 9, 1997 :-
"By order dated November 18, 1997
these matters have been referred to
this Court for the reason that
among other questions, a
substantial question of law as to
the interpretation of Article 105
of the Constitution of India is
raised in these petitions. These
petitions are, therefore, required
to be heard and disposed of by a
Constitution Bench. The learned
counsel for the parties agree that
the Constitution Bench may only
deal with the questions relating to
interpretation of Article 105 of
the Constitution and the
applicability of the Prevention of
Corruption Act to a Member of
Parliament and Member of State
Legislative Assembly and the other
questions can be considered by the
Division Bench."
During the pendency of the appeals in this Court the Special
Judge has framed the charges against the accused persons
[appellants herein] on September 25, 1997. All the
appellants have been charged with the offence of criminal
conspiracy punishable under Sections 120-B IPC read with
Section 7, 12 and 13(2) read with 13(1)(d) of the 1988 Act.
A-3 to A-5, belonging to JMM and A-15 to A-21, belonging to
JD(A), have been further charged with offences under Section
7 and Section 13(2) read with Section 13(1)(d) of the 1988
Act. A-3 to A-5 have also been charged with the off once
under Section 193 IPC. The other appellants, viz., A-1, A-2
and A-7 to A-14 have been charged with offence under Section
12 of the 1988 Act for having abetted the commission of the
offence punishable under Section 7 of the 1988 Act by the
members of Parliament belonging to JMM and JD(A).
Section 7, 12 and 13(a)(d) and 13(2) of the 1988 Act may be
reproduced as under :-
"8. Public servant taking
gratification other legal
remuneration in respect of an
official act.- Whoever, being, or
expecting to be a public servant,
accepts or obtains or agrees to
accept or attempts to obtain from
any person, for himself or for any
other person, any gratification
whatever, other than legal
remuneration as a motive or reward
for doing or forbearing to show, in
the exercise of his official
functions, favour or disfavour to
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any person or for rendering or
attempting to render any service or
disservice to any person, with the
Central Government or any State
Government or Parliament or the
Legislature of any State or with
any local authority, corporation or
Government company referred to in
clause (c) of Section 2, or with
any public servant, whether named
or otherwise, shall be punishable
with imprisonment which shall be
not less than six months but which
may extend to five years and shall
also be liable to fine.
Explanations.- (a) "Expecting to be
a public servant." If a person not
expecting to be in office obtains a
gratification by deceiving others
into a belief that he is about to
be in office, and that he will then
service them, he may be guilty of
cheating, but he is not guilt of
the offence defined in this
section.
(b) "Gratification." The word
"gratification" is not restricted
to pecunniary gratifications or to
gratifications estimable in money.
(c) "Legal remunerations." The
words "legal remuneration" are not
restricted to remuneration which a
public servant can lawfully demand,
but include all remuneration which
he is permitted by the Government
or the organisation, which he
serves, to accept.
(d) "A motive or reward for doing."
A person who receives a
gratification as a motive or reward
for doing what he does not intend
or is not in a position to do, or
has not done, comes within this
expression.
(e) Where a public servant induces
a person erroneously to believe
that his influence with the
Government has obtained a title for
that person and thus induces that
person to give the public servant,
money or any other gratification as
a reward for this service, the
public servant has committed an
offence under this Section."
"12. Punishment for abetment of
offences defined in Section 7 or
11.- Whoever abets any offence
punishable under Section 7 or
Section 11 whether or not that
offence is committed in consequence
of that abetment, shall be
punishable with imprisonment for a
term which shall be not less than
six months but which may extend to
five years and shall also be liable
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to fine."
"13. Criminal misconduct by a
public servant.- (1) A public
servant is said to commit the
offence of criminal misconduct.-
(a) X X X X
(b) X X X X
(c) X X X X
(d) If he,-
(i) by corrupt or illegal
means, obtains for himself or for
any other person any valuable thing
or pecuniary advantage; or
(ii) by abusing his position
as a public servant, obtains for
himself or for any other person any
valuable thing or pecuniary
advantage; or
(iii) while holding office as
a public servant, obtains for any
person any valuable or pecuniary
advantage without any public
interest; or
(e) X X X X
(2) Any public servant who commits
criminal misconduct shall be
punishable imprisonment for a term
which shall be not less than one
year but which may extend to seven
years and shall also be liable to
fine."
The charge of criminal conspiracy as against appellants who
are alleged to have agreed to offer gratification (A-1, A-2
and A-7 to A-14) is in these terms:-
"That you P.V. Narsimha Rao between
July and August, 1993 at Delhi and
Bangalore were party to a criminal
conspiracy and agreed to or entered
into an agreement with your co-
accused Capt. Satish Sharma, Buta
Singh, V. Rajeshwara Rao, H.M.
Revanna, Ramlinga Reddy, M.
Veerappa Moily, D.K. Audi Keshvalu,
M. Thimmegow, Bhajan Lakl, JMM
(Jharkhand Mukti Morcha) MPs. Suraj
Mandal, Shibu Sopren, Simon
Marandi. Shilendra Mahto (Approver,
since granted pardon on 8.4.97),
Janta Dal (Ajit Group) MPs Ajit
Singh , Ram Lakhan Singh, Haji
Ghulam Mohd, Khan and late G.C.
Munda to defeat the no confidence
motion moved on 26.7.93 against the
then Congress (I) Government headed
by you by illegal means viz., to
offer or cause to offer and pay
gratification other than the legal
remuneration to your co-accused
persons namely J.M.M. and Janta Dal
(A) MPs named above as a motive or
reward for their helping in
defeating the said no confidence
motion moved by the opposition
parties and in pursuance of the
said agreement you paid or caused
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to pay several lacs of rupees to
the above referred JMM and Janta
Dal (A) MPs who obtained or
attempted to obtain the same in the
manner stated above and thereby you
have committed an offence
punishable u/s 120 IPC re/w Section
7, 12, 13(2) r/w 13(1)(d) of the PC
Act 1988 and within my cognizance."
The charge of criminal conspiracy as against appellants who
are alleged to have agreed to receive the gratification (A-3
to A-5 and A-15 to A-21) is in these terms :-
"Firstly, you between July and
august, 1993 at Delhi and Bangalore
were party to a criminal conspiracy
and agreed to or enter into an
agreement with your co-accused P.V.
Narsimha Rao, Capt. Satish Sharma,
Buta Singh, V. Rajeshwara Rao, H.M.
Revanna, Ramlinga Reddy, M. Veerapa
Moiley, D.K. Audi Keshvalu, M.
Thimmegowda, Bhajan Lal, JMM
(Jharkhand Mukti Morcha) MPs Shibu
Soren, Simon Marandi, Shilendra
Mehto (Approver, since granted
pardon on 8.4.97), Janta Dal (Ajit
Group) MPs. Ajit Singh, Ram Lakhan
Singh Yadav, Ram Sharan Yadav,
Roshan Lal, Anadi Charan Dass,
Abhey Partap Singh, Haji Ghulam
Mohd. Khan and late G.C Munda to
defeat the no confidence motion
moved against the then Congress (I)
Government headed by accused Shri
P.V. Narsimha Rao on 26.7.93 by
illegal means viz. to obtain or
agree to obtain gratification other
than legal remunerations from your
above named accused persons other
than JMM and Janta Dal (A) MPs as a
motive or reward for defeating the
no confidence motion and in
pursuance thereof above named
accused persons other than JMM and
Janta Dal (A) passed on several
lacs of rupees to you or your other
co-accused namely JMM and Janta Dal
(A) MPs which amounts were accepted
by you or your said co-accused
persons and they by you have
committed an offence punishable u/s
120B r/w Sections 7, 12 13(2) r/w
Section 13(1)(d) of the P.C Act and
within my cognizance."
The charges under Section 13(2) read with Section 13(1)(d)
of the 1988 Act agains A-3 to A-5 and A-15 to A-21 are in
these terms :-
"Secondly, that you being a public
servant while functioning in your
capacity of Member of Parliament
(10th Lok Sabha) during the
aforesaid period and at the
aforesaid places in pursuance of
the aforesaid conspiracy demanded
and accepted from your co-accused
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other than JMM & JD(A) MPs
mentioned above a sum of Rs. 280
lacs for yourself and other JMM MPs
named above other your legal
remuneration as a motive or reward
for defeating above referred no
confidence motion moved against the
then Government of Congress (I)
headed by your co-accused P.V.
Narsimha Rao and thereby you have
committed an offence punishable u/s
7 of P.C. Act and within my
cognizance."
"Thirdly you during the aforesaid
period and at the aforesaid places
being a public servant while
functioning in your aforesaid
capacity of Member of Parliament by
corrupt or illegal means and by
abusing your position as a said
public servant obtained for
yourself or your other co-accused
i.e. JMM MPs named above the
pecuniary advantage to the extent
of Rs. 280 lacs and thereby
committed an offence punishable u/s
13(2) read with Section 13(1)(d) of
P.C.. Act and within my
cognizance."
The Charge under Section 12 of the Act against A-1, A-2, A-
14 and A-15 is in these terms :-
"Secondly you P.V. Narsimha Rao in
pursuance of the aforesaid criminal
conspiracy during the aforesaid
period and at the aforesaid placed
abetted the commission of offence
punishable u/s 7 of P.C Act by
above referred JMM and Janta Dal
(A) MPs and thereby you have
committed an offence punishable u/s
12 of the P.C Act and with my
cognizance."
The two questions arising for consideration can be thus
formulated :-
(1) Does Article 105 of the Constitution confer any
immunity on a Member of Parliament from being
prosecuted in a criminal court for an offence involving
offer or acceptance of bribe ?
(2) Is a Member of Parliament excluded from the ambit
of the 1988 Act for the reason that : (a) he is not a
person who can be regarded as a "public servant" as
defined under Section 2(c) of the 1988 Act, and (b) he
is not a person comprehended in clauses (a), (b) and
(c) of sub-section (1) of Section 19 and there is no
authority competent to grant sanction for his
prosecution under the 1988 Act?
Immunity From Prosecution
In order to answer the first question it would be
necessary to examine the scope and ambit of the protection
available to a Member of Parliament under Article 105 which
deals with the powers, privileges and immunities of the
Houses of Parliament and its members. Before we undertake
this task, we would briefly set out the prevailing state of
law in the United Kingdom a other countries following the
common law.
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UNITED KINGDOM : During the rule of the Tudor and
Stuart Kings the Commons had to wage a bitter struggle to
assert their supremacy which culminated in the Bill of
Rights, 1989 whereby it was secured "that the freedom of
speech and debates or proceedings in Parliament ought not to
be impeached or questioned in any court or place out of
Parliament" (Article 9). On May 2. 1695 the House of Commons
passed a resolution whereby it resolved that "the offer of
money, or other advantage, to any Member of Parliament for
the promoting of any matter whatsoever, depending or to be
transacted in Parliament is a high crime and misdemeanor and
tends to the subversion of the English constitution". In the
spirit of this resolution, the offering to a Member of
either House of a bribe to influence him in his conduct as a
Member or of any fee or reward in connection with the
promotion of or opposition to any bill, resolution, matter
or thing submitted or intended to be submitted to the House
or any committee thereof, has been treated as a breach of
privilege. [See : May's Parliamentary Practice, 21" Edn. p.
128]. In its report submitted in July 1976 the Royal
Commission on Standards of Conduct in Public Life (chaired
by Lord Salmon) has pointed out that "neither the statutory
nor the common law applies to the bribery or attempted
bribery of a Member of Parliament in respect of his
Parliamentary activities but "corrupt transactions involving
a Member of Parliament in respect of matters that had
nothing to do with his parliamentary activities would be
caught by the ordinary criminal law" (page 98, para 307 and
308). The Salmon Commission has observed that sanctions
against bribery introduced by the criminal law in other
fields have now outstripped whatever sanctions may be
exerted through Parliament's own powers of investigation and
punishment and the Commission was of the view there is a
strong case for bringing such malpractice within the
criminal law. According to the Salmon Commission, the
Committee of Privileges and the Select Committee on Members'
Interests do not provide an investigative machinery
comparable to that of a police investigation and that having
regard to the complexity of most investigations into serious
corruption special expertise is necessary for this type of
inquiry. (para 310, pp. 98, 99). The Salmon Commission has
recommended :-
"Membership of Parliament is a
great honour and carries with it a
special duty to maintain the
highest standards of probity, and
this duty has almost invariably
been strictly observed.
Nevertheless in view of our report
as a whole, and especially in the
light of the points set out in the
foregoing paragraph, we recommend
that Parliament should consider
bringing corruption, bribery and
attempted bribery of a Member of
Parliament acting in his
parliamentary capacity within the
ambit of the criminal law." [para
311 p. 99]
During the course of the debate in the House of Lords, Lord
Salmon said :-
"To my mind equality before the law
is one of the pillars of freedom.
To say that immunity from criminal
proceedings against anyone who
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tries to bribe a Member of
Parliament and any Member of
Parliament who accepts the bribe,
stems from the Bills of Rights is
possibly a serious mistake."
After quoting the Bill of Rights Lord Salmon continued :-
"Now this is a charter for freedom
of speech in the House it is not a
charter for corruption. To my mind,
the Bill of Rights, for which no
one has more respect than I have,
has no more to do with the topic
which we are discussing that the
Merchandise Marks Act. The crime of
corruption is complete when the
bribe is offered or given or
solicited or taken."
The correctness of the statement in the Report of the
Salmon Commission that `common law does not apply to bribery
or attempted bribery of a Member of Parliament in respect of
his parliamentary activities, has been doubted by Prof.
Graham Zellick who has said that Sir James Fitzjames Stephen
appears to be the only writer to have taken the same view in
his Digest of the Criminal Law (1878) art. 118, and that
there is nothing in the English authorities which compels to
the conclusion that a Member of Parliament is not a public
officer and is not punishable at common law for bribery and
breach of trust. [See : Grahma Zellick : Bribery of Members
of Parliament and the Criminal Law, 1979 Public Law p. 31 at
pp. 39, 40].
The question whether offering of a bribe to and
acceptance of the same by a Member of Parliament constitutes
an offence at common law came up for consideration before a
criminal court (Buckley J.) in 1992 in R.V. Currie & Ors. In
that case it was alleged that a Member of Parliament had
accepted bribes as a reward for using his influence as a
Member in respect of application for British nationality of
one of the persons offering the bribe. The indictment was
sought to be quashed on the ground that bribery of a Member
of Parliament is not a crime and that in any event the court
has no jurisdiction and Parliament alone can try a member
for bribery, the matter being covered by parliamentary
privilege. The learned Judge ruled against the contention
and held :-
"That a member of Parliament
against whom there is a prime facie
case of corruption should be immune
from prosecution in the courts of
law is to my mind an unacceptable
proposition at the present time. I
do not believe it to be the law."
In 1994 the Attorney General advised the Committee of
Privileges of the House of Commons that, in his opinion,
though bribery of a Member was not a statutory offence, it
might be an offence at the common law. [See : May's
Parliamentary Practice, 22nd End, p. 114]. The Committee on
Standards in Public Life, Chaired by Lord Nolan (Nolan
Committee) in its first report submitted in May 1995, has
said :-
"There is one area of conduct where
a need already exists to clarify,
and perhaps alter, the boundary
between the courts and Parliament.
Bribery of a Member, or the
acceptance of a bribe by a Member,
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is contempt of Parliament and can
be punished by the House. The test
which the House would apply for
bribery would no doubt be similar
to that which would apply under
Common Law. However it is quite
likely that Members of Parliament
who accepted bribes in connection
with their Parliamentary duties
would be committing Common Law
offences which could be tried by
the courts. Doubt exists as to
whether the courts or Parliament
have jurisdiction in such cases."
{para 103]
"The Salmon Commission in 1976
recommended that such doubt should
be resolved by legislation, but
this has not been acted upon. We
believe that it would be
unsatisfactory to leave the issue
outstanding when other aspects of
the law of Parliament relating to
conduct are being clarified. We
recommend that the Government
should now take steps to clarify
the law relating to the bribery of
or the receipt of a bribe by a
Member of Parliament. This could
usefully be combined with the
consolidation of the statute law on
bribery which Salmon also
recommended, which the government
accepted, but which has not been
done. This might be a task which
the Law Commission could take
forward." [para 104]
It appears that the matter is being considered by the Law
Commission. In the Law Commission, Consultation Paper No.
145, reference has been made to a document entitled
`Clarification of the law relating to the Bribery of Members
of Parliament', published by the Home Office in December
1996, whereby the Select Committee on Standards and
Privileges has been invited to consider the following four
broad options :-
(1) to rely solely on Parliamentary privileges to deal
with accusations of the bribery by Members of
Parliament;
(2) subject Members of Parliament to the present
corruption statutes in full;
(3) distinguish between conduct which should be dealt
with by the criminal law and that which should be
left to Parliament itself, and
(4) make criminal proceedings subject to the approval
of the relevant House of Parliament.
AUSTRALIA : Even though Article 9 of the Bill of Rights is
applicable in Australia but as far back as in 1975 the
Supreme Court of New South Wales held that an attempt to
bribe a Member of the Legislative Assembly in order to
influence his vote was a criminal offence, a misdemeanor at
common law.[See : R.V. White, 13 SCR (NSW) 332].
The said decision in White was approved by the High
Curt of Australia in R.V. Boston & Ors., (1923) 33 CLR 386.
In that case three persons, namely, Walter James Boston, a
member of the Legislative Assembly of New South Wales, John
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Andrew Harrison and Henry Ernest Mitchelmore, were alleged
to have unlawfully conspired together and with other persons
that certain large sums of money should be corruptly given
to Walter James Boston to use his position to secure the
inspection of , acquisition and the payment in cash for
certain estates by the Government of New South Wales and
which estates were to be paid for out of the public funds of
the said State and to put pressure upon the Minister for
Lands and other officers of the Crown to inspect, acquire
and to pay cash for certain estates. The trial Judge upheld
the demurrer to the charge by the defendants on the ground
that the matters alleged did not include a provision
respecting voting in Parliament. In the High Court it was
not disputed by the defendants that an agreement to pay
money to a member of Parliament in order to influence his
vote in Parliament would amount to a criminal offence. It
was urged that consistently with the allegations in the
information, the agreement between the defendants might have
been to pay money to Boston to induce him to use his
position exclusively outside Parliament, not by vote or
speech in the Assembly, and that the transaction in
connection with which he was to use his position to put
pressure on the Minister might, consistently with the
information, be one which would never come before Parliament
and which, in his opinion and in the opinion of those who
paid him, was highly beneficial to the State; that such an
agreement would not amount to a criminal offence, and that
consequently the informations is bad. Rejecting the said
contention,. Knox C.J. has observed :-
"In my opinion, the payment of
money to, and the receipt of money
by, a Member of Parliament to
induce him to use his official
position, whether inside or outside
Parliament, for the purpose of
influencing or putting pressure on
a Minister or other officer of the
Crown to enter into or carry out a
transaction involving payment of
money out of the public funds, are
acts tending to the public
mischief, and an agreement or
combination to do such acts amounts
to a criminal offence. From the
point of view of tendency to public
mischief I can see no substantial
difference between paying money to
a member to induce him to use his
vote in Parliament in a particular
direction and paying him money to
induce him to use his position as a
member outside Parliament for the
purpose of influencing or putting
pressure Ministers. A member of
Parliament cannot divest his
position of the right which it
confers to take part in the
proceedings of Parliament he cannot
`use his position as a member of
Parliament' stripped of its
principal attribute. The influence
which his position as a member of
Parliament enables him to exert on
a Minister has its source in his
right to sit and vote in
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Parliament, and it would be idle to
pretend that in discussions and
negotiations between a Minister and
a member that right, or the power
it confers on a member, can be
disregarded or ignored. The tenure
of office of the Minister and his
colleagues may be dependent on the
vote or on the abstention from
voting of an individual member, or
even on his words or his silence in
Parliament." [pp. 392, 393]
Similarly, Issacs and Rich JJ, have said :-
"It is impossible to sever the
voluntarily assumed intervention
departmentally from the legislative
position to which by custom it is
recognised as incidental. A member
so intervening speaks as member and
is dealt with as member, and not as
a private individual. His ulterior
power of action, though not
intruded into observation, is
always existent and is always known
to exist. It is scarcely even
camouflaged. The importance of even
one parliamentary vote on a
critical occasion is not entirely
unknown." [p. 403]
Higgins J., after stating that it was not disputed by the
counsel for the defendants that if the agreement were that
the member should use his votes or his action in the House
to secure the acquisition of the land, the agreement would
be criminal conspiracy, expressed the view that he could not
read the count as `confining the agreement to action of the
member outside the House' and that the words `to use his
position as such member' primarily refer to an action in the
House. The learned Judge, however, held :-
"A member is the watch-dog of the
public; and Cerberus must not be
seduced from vigilance by a sop. I
see no reason to doubt that even if
the count were confined to an
agreement as to the action of the
member outside the House-action in
which the member used his position
as member-the agreement would be an
indictable conspiracy." [p. 410]
Gavan Duffy and Starke JJ., in their dissenting
judgment, while holding that the acts charged as intended to
be done by the defendant Boston, however important they may
be, would not be malversation in his office, or acts done in
his office, unless they were done-in the discharge of his
legislative functions, have said :-
"It cannot be denied that a member
of Parliament taking money or
agreeing to take money to influence
his vote in Parliament is guilty of
a high crime and misdemeanour, and
that an agreement to bring about
such a state of things constitutes
a criminal conspiracy; nor can it
be denied that an agreement which
has the effect of fettering
parliamentary or executive action
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may sometimes be as dangerous to
the community as the direct
purchase of a member's vote; and it
may be that, under t he words used
in the count which we are
considering, facts might be proved
which would constitute a criminal
conspiracy." [pp. 413, 414]
Section 73A of the Crime Act, 1914 in Australia makes it an
offence for members of the Australian Parliament to accept
or be offered a bribe. Under the said provision a member of
either House of Parliament who asks for or receives or
obtains, or offers or agrees to ask for or receive or
obtain, any property or benefit of any kind for himself or
any other person, on an understanding that the exercise by
him of his duty or authority as such a member will, in any
manner, be influenced of affected, is guilty of an offence.
So also a person who, in order to influence or affect a
member of either House of Parliament in the exercise of his
duty or authority as such a member or to induce him to
absent himself from the House of which he is a member, any
committee of the house or from any committee of both House
of the Parliament, gives or confers, or promises or offers
to give or confer, any property or benefit of any kind to or
on the member or any other person is guilty of an offence.
[See : Gerard Carney - Conflict of Interest : A Commonwealth
Study of Members of Parliament.p. 124].
CANADA : In the case of R.V Bunting, (1984-5) 7 Ontario
Reports 524, the defendants had moved for quashing of an
indictment for conspiracy to bring about a change in the
Government of Province of Ontario by bribing members of the
Legislature so vote against the Government. It was argued
that bribery of a member of Parliament is a matter
concerning Parliament or Parliamentary business and is not
an indictable offence at common law and that the exclusive
jurisdiction to deal with such a case rests with the
Legislative Assembly according to t he law and custom of
Parliament. Rejecting the said contention, Wilson CJ. held:-
"It is to my mind a proposition
very clear that his Court has
jurisdiction over the offence of
bribery as at the common law in a
case of this kind, where a member
of the Legislative Assembly is
concerned either in the giving or
in the offering to give a bribe, or
in the taking of it for or in
respect of any of his duties as a
member of that Assembly; and it is
equally clear that the Legislative
Assembly had not the jurisdiction
which this Court has in a case of
the kind; and it is also quite
clear that the ancient definition
of bribery is not the proper or
legal definition of that offence."
[p. 542]
Armour J. was of the some view and has said :-
"I think it beyond doubt that the
bribery of a member of the
Legislative Assembly of the
Province of Ontario to do any act
in his capacity as such is an
offence at the common law, and is
indictable and punishable as a
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misdemeanour." [p. 555]
O'Connor J, in his dissenting judgment, held that the bribe
of a member of Parliament, in a matter concerning Parliament
or Parliamentary business, is not an indictable offence at
common law, and has not been made so by any statute.
Section 108 of the Criminal Code in Canada renders it
an offence for a bribe to be offered to or accepted by a
provincial or federal member, while in Federal Canada and
several of the Provinces the acceptance of a reward etc.,
for promoting a matter within Parliament constitutes a
breach of privilege. [See : Gerard Carney : Conflict of
Interest : A Commonwealth Study of Members of Parliament, p
123].
Other Commonwealth Countries : After examining the
anti-corruption measures in the various Commonwealth
countries, Gerrard Carney has concluded :-
"Most countries treat corruption
and bribery by Members of
Parliament as a criminal offence
rather than as a breach of
privilege."
[See : Gerard Carney : Conflict of
Interest : A Commonwealth Study of
Members of Parliament, p 123].
UNITED STATES ; Article 1(6) of the US Constitution
contains the `Speech or Debate Clause' which provides that
"for any speech or debate in either House, they (Members of
the Congress) shall not be questioned in any other place".
In 1853 the Congress, by statute, declared a member liable
to indictment as for a high crime and misdemeanour in any
court of the United States for accepting compensation
intended to influence a vote or decision on any question
brought before him in his official capacity. In 1862 the
Congress enacted another statute to penalise legislators who
received money for votes or influence in any matter pending
before Congress and in 1864 Conflict of Interest statutes
barred Congressmen from receiving compensation for their
services before any agency. The Conflict of Interest
Statutes were revised in 1962 and are contained in 18
U.S.C.(1964). [See : Note, The Bribed Congressmen's Immunity
from Prosecution, (1965-66) 75 Yale L.J. 335, at p. 341].
A distinction is, however, made between the conduct of
a Member connected with the proceedings of the House and his
conduct not in the House but in connection with other
activities as a Member of the Congress. The speech and
debate clause does not give any protection in respect of
conduct "that is in no sense related to due functioning of
the legislative powers". [See : United Stated v. Johnson, 15
L Ed 2d 681, at p. 684]. In Burton v. United States, 202 US
344, the US Supreme Court upheld the conviction of a Senator
who had been bribed in order to get a mail fraud indictment
quashed under the rationale that Burton's attempt to
influence the Post Office Department was unprotected non-
legislative conduct. The question regarding immunity in
respect of actions connected with the proceedings of the
House has been considered by the US Supreme Court in three
decisions, namely, Johnson, United State v. Brewster, 33 L
Ed 2d 507, and United States v. Helstoski, 61 L Ed 2d 12.
In Johnson a former US Congressman, named Johnson, and
three co-defendants were found guilty of conspiracy
consisting of an agreement among Johnson and another
Congressman and two other co-defendants who were connected
with a Maryland saving and loan institution whereby the two
Congressmen would exert influence on the Department of
Justice to obtain the dismissal of pending indictments of
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the loan company and it officers on mall fraud charges and
as part of this general scheme Johnson read a speech
favourable to independent saving and loan associations in
the House and that the company distributed copies to allay
apprehensions of potential depositors and that the two
Congressmen approached the Attorney General and Assistant
Attorney General in charge of the Criminal Division and
urged them to review the indictment and for these services
Johnson received substantial sums in the form of campaign
contribution and legal fees. Harlan j., delivering the
opinion of the Court, held that the prosecution of the
conspiracy count being dependent upon an intensive inquiry
with respect to the speech on the floor of the House
violated the Speech or Debate Clause so as to warrant the
granting of a new trial on the conspiracy count with all
elements offensive to the Speech or Debate Clause to be
eliminated. The Speech or Debate Clause was given a wider
construction so as to exclude the motive for performing the
legislative acts being enquired into in a criminal
prosecution.
In Brewster a former US Senator, named Brewster, had
been charged with accepting bribes and the allegation was
that while he was a Senator an d a member of the Senate
Committee on Post and Civil Service he received and agreed
to receive sums in return for being influenced in his
performance of official acts in respect of his action, vote
and decision on postage rate legislation which had been
pending before him in his official capacity. Brewster moved
to dismiss the indictment on the ground that he was immune
from prosecution for any alleged act of bribery because of
the Speech or Debate Clause. The District Court accepted the
said contention and dismissed the counts of the indictment
which applied to Brewster. The said judgment of the District
Court was reversed by the US Supreme Court and the matter
was remanded. Burger CJ., who delivered the opinion of the
Court on behalf of six Judges, held that the Speech or
Debate Clause protects the members of Congress from inquiry
into legislative acts or into the motivation for their
actual performance of legislative acts and it does not
protect them from other activities they undertake that are
political, rather than legislative, in nature and that
taking a bribe for t he purpose of having one's official
conduct influenced is not part of any legislative process or
function and the Speech or Debate Clause did not prevent
indictment and prosecution of Brewster for accepting bribes.
Brennan and White JJ. (joined by Douglas J.) disssented. The
Court construed the Speech or Debate Clause as giving
protection to an act which was clearly a part of the
legislative process - the due functioning of the process. It
was held that the purpose of the Speech or Debate Clause is
to protect the individual legislator, not simply for his own
sake, but to preserve the independence and thereby the
integrity of the legislative process and that financial
abuse, by way of bribes, would grossly undermine legislative
integrity and defeat the right of the public to honest
representation. The learned Chief Justice has observed :-
"Taking a bribe is, obviously, no
part of the legislative process or
function; it is not a legislative
act. It is not, by any conceivable
interpretation, an act performed as
a part of or even incidental to the
role of a legislator." [p. 526]
In Helstoski a former member of the House of
Representatives, named Heistoski, was prosecuted for
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accepting money for promising to introduce and for
introducing private bills which would suspend the
application of the immigration laws so as to allow the
aliens to remain in the country. Helstoski moved to dismiss
the indictment in the District Court contending that the
indictment violated the Speech or Debate Clause. The said
motion was rejected by the District Court though it was held
that the Government would not be allowed to offer evidence
at trial of the performance of the past legislative acts by
the Congressmen. The said judgment was affirmed by the Court
of Appeals which judgment was also affirmed by the US
Supreme Court by majority (Brennan J dissenting). Burger CJ.
has held that references to past legislative acts of a
Member cannot be admitted without considering the values
protected by the Speech or Debate Clause which was designed
to preclude prosecution of Members for legislative act.
Having taken note of the legal position as it prevails
in the various countries, we may now examine the legal
position in this regard in India.
Offering of a bribe or payment to a Member of
Parliament influence him in his conduct as a member and
acceptance of a bribe by such a Member is treated as a
breach of privilege by Indian Parliament even though no
money has actually changed hands. [See : M.N. Kaul & S.L.
Shakdher : Practice and Procedure of Parliament 4th Edn., at
p. 254]. As early as in 1951 an ad hoc Committee of
Parliament was appointed to investigate the conduct and
activities of a member , H.G. Mudgal, in connection with
some of his dealings with a business association which
included canvassing support and making propaganda in
Parliament on certain problems on behalf of that association
in return for alleged financial and other business
advantages. A ad hoc Committee of the House was appointed to
consider whether the conduct of the member concerned was
derogatory to the dignity of the House and inconsistent with
the standards which Parliament is entitled to expect from
members. The Committee found the member guilty of receiving
monetary benefits for putting questions in Parliament,
moving amendments to the Forward Contracts (Regulation) Bill
and urging interviews with the Ministers, etc. and it held
that the conduct of H.G. Mudgal was derogatory tot he
dignity of the House and inconsistent with the standards
which Parliament was entitled to expect of its members. The
Committee recommended the expulsion of the member from the
House. While the said report was being considered by the
House, the member, after participating in the debate,
submitted his resignation from the membership of the House.
In the resolution the House accepted the findings of the
Committee and deprecated the attempt of the member to
circumvent the effects of the motion expelling him from the
House, by his resignation, which constituted a contempt of
the House and aggravated the offence. [SEE: Kaul & Shakdher
at pp. 284, 285].
It does not, however, constitute breach or contempt of
the House if the offering of payment of bribe is related to
the business other than that of the House. In 1974 the Lok
Sabha considered the matter relating to offer or payment of
bribe in the Import Licences case wherein it was alleged
that a Member of Lok Sabha had taken bribe and forged
signatures of the Members for furthering the cause of
certain applicants. The question of privilege was disallowed
since it was considered that conduct of the Member, although
improper, was not related to the business of the House. But
at the same time it was held that as the allegation of
bribery and forgery were very serious and unbecoming of a
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Member of Parliament, he could be held guilty of lowering
the dignity of the House. [See: Kaul & Shakdher at pp. 254.
255].
The question whether a Member of Parliament can claim
immunity from prosecution before a criminal court on charge
of bribery in relation to proceedings in Parliament has not
come up for consideration before the court and it has to be
examined in the light of the provisions contained in the
Constitution. The relevant provision which provides for the
powers, privileges and immunities of Parliament and its
members and its committees is contained in Article 105 of
the Constitution. The said Article, in the original form,
read as follows :-
"105. Powers, Privileges, etc. of
the House of Parliament and of the
members and committees thereof.-
(1) Subject to the provisions of
this Constitution and to the rules
and standing orders regulating the
procedure of Parliament, there sh
all b e freedom of speech in
Parliament.
(2) 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, and no person shall be so
liable in respect of the
publication by or under the
authority of either House of
Parliament of any report paper,
votes or proceedings.
(3) In other respects, the powers,
privileges and immunities of each
House of Parliament, and of the
members and the committees of each
House, shall be such as may from
time to time be defined by
Parliament by law, and until so
defined, shall be those of the
House of Commons of Parliament of
the United Kingdom, and of its
members and committees, at the
commencement of this Constitution.
(4) The provisions of clauses (1),
(2), and (3) shall apply in
relation to persons who by virtue
of this Constitution have the right
to speak in, and otherwise to take
part in the proceedings of, a House
of Parliament or any committee
thereof as they apply in relation
to members of the Parliament."
By Constitution (Forty-fourth Amendment) Act, 1978 clause
(3) was replaced but he following clause :-
"(3) In other respects, the powers,
privileges and immunities of each
House of Parliament, and of the
members and the committees of each
House, shall be such as may from
time to time be defined by
Parliament by law, an d until so
defined, shall be those of that
House and of its members and
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committees immediately before
coming into force of Section 15 of
the Constitution (Forty-fourth
Amendment) Act, 1978."
Clause (1) secures freedom of speech in Parliament to
its members. The said freedom is "subject to the provisions
of this Constitution and to the rules and standing orders
regulating the procedure of Parliament". The words "subject
to the provisions of the Constitution" have been construed
to mean subject to the provisions of the Constitution which
regulate the procedure of Parliament, viz., Article 118 and
121. [See : Pandit M.S.M Sharma v. Shri Sri Krishna Sinha &
Ors., 1959 Supp. (1) SCR 806, at o. 856, and Special
Reference No. 1 of 1964, also known as the Legislative
Privileges case, 1965 (1) SCR 413, at p. 441]. The freedom
of speech that is available to Members of Parliament under
Article 105(1) is wider in amplitude than the right to
freedom of speech and expression guaranteed under Article
19(1)(a) since the freedom of speech under Article 105(1) is
not subject to the limitations contained in Article 19(2).
Clause (2) confers immunity in relation to proceedings
in courts. It can be divided into two parts. In the first
part immunity from liability under any proceedings in any
court is conferred on a Member of Parliament in respect of
anything said or any vote given by him in Parliament or any
committee thereof. In the second part such immunity is
conferred on a person in respect of publication by or under
the authority or either House of Parliament of any report,
paper, votes or proceedings. This immunity that has been
conferred under Clause (2) in respect of anything said or
any vote given by a Member in Parliament or any committee
thereof and in respect of publication by or under the
authority of either House of Parliament of any report,
paper, votes or proceedings, ensures that the freedom of
speech that is granted under clause (1) of Article 105 is
totally absolute an d unfettered. [See : Legislative
Privileges Case pp. 441, 442].
Having secured the freedom of speech in Parliament to
the members under clause (a) and (2), the Constitution, in
clause (3) of Article 105, deals with powers, privileges and
impunities of the House of Parliament and of the members and
the committees thereof in other respects. The said clause is
in two parts. The first part empowers Parliament to define,
by law, the powers, privileges and immunities of each House
of Parliament and of the members and the committees of each
House. In the second part, which was intended to be
trasitional in nature, it was provided that until they are
so defined by law the said powers, privileges and immunities
shall be those of the House of Commons in the United Kingdom
and of its members and committees at the commencement of the
Constitution. This part of the provision was on the same
lines as the provisions contained in Section 49 of the
Australian Constitution an d Section 18 of the Canadian
Constitution. Clause (3), as substituted by the Forty-fourth
Amendment of the Constitution, does not make any change in
the content and it only seeks to omit future reference tot
he house of Commons of Parliament in the United Kingdom
while preserving the position as it stood on the date of
coming into force of the said amendment.
Clause (4) of Article 105 makes the privileges and
immunities secured under Clauses (1) and (3) applicable to
persons who by virtue of the Constitution have the right to
speak otherwise to take part in the proceedings of a House
of Parliament or any committee thereof as they apply in
relation to Members of Parliament.
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Shri P.P. Rao, Shri D.D. Thakur and Shri Kapil Sibal,
the learned senior counsel appearing for the appellants,
have submitted that having regard tot he purpose underlying
the grant of immunity under clause (2) of Article 105,
namely, to secure full freedom for a Member of Parliament
while participating in the proceedings in the House or its
committees by way of speech or by casting his vote, the said
provision should be given a wide construction so as to
enable the Member to exercise his said rights without being
exposed to legal proceedings in a court of law in respect of
anything said or any vote given by him in Parliament or any
committee thereof. It has been submitted that the immunity
from liability that has been conferred on a Member of
Parliament under clause (2) of Article 105 would, therefore,
extend to prosecution of member on a charge o bribery in
making a speech or giving his vote in the House or any
committee as well as the charge of conspiracy to accept
bribe for making a speech or giving the vote. It is claimed
that by virtue of the immunity granted under clause (2) of
Article 105 the offer to and acceptance by a Member of
Parliament of bribe in connection with his making a speech
or giving the vote would not constitute a criminal offence
and, therefore, neither the member receiving the bribe nor
the person offering this bribe can be prosecuted and so also
there can be no offence of criminal conspiracy in respect of
such offer and acceptance of bribe. It has been urged that
on that view neither the charge of conspiracy under Section
120B IPC nor the charges in respect of the substantive
offences under the 1988 Act can be sustained against the
appellants. Strong reliance has been placed on the decision
of the Court of Queen's Bench in Ex parte Wason, (1869) LR
QBD 573, as well as on the judgment of the U.S. Supreme
Court (Harlan J.) in Johnson and on the dissenting judgments
of Brennan J. and White J. in Brewster.
The learned Attorney General, on the other hand, has
urged that the immunity granted under clause (2) of Article
105 gives protection to a Member of Parliament from any
liability for a speech made by him or a vote given by him in
the House or any committee thereof, but the said immunity
cannot be extended to confer immunity from prosecution of a
Member for having received bribe or having entered into a
conspiracy to receive bribe for the purpose of making a
speech or giving a vote in the House or in any committees
thereof. The learned Attorney General has placed reliance on
the judgment of the U.S. Supreme Court (Burger CJ.) in
Brewster, the Canadian decision in Bunting and the
Australian decisions in White and Boston and the ruling of
Buckley J. in R.V. Currie & Ors.
Before we proceed to consider these submissions in the
light of the provisions contained in clause (2) of Article
105, we may refer to the decision in Ex parte Wason and the
other decision in which it has been considered.
In Ex parte Wason information had been laid by Wason
before the Magistrate wherein it was stated that the had
given Eari Russell a petition to be presented in the House
of Lords wherein the Lord Chief Baron was charged with
wilful and deliberate falsehood and the object of the
petition was that the Lord Chief Baron might be removed from
his office by an address of both House of Parliament and
that Eari Russell, Lord Chelmsford and the Lord Chief Baron
conspired together to prevent the course of justice by
agreeing to make statements which they knew to be untrue and
that Eari Russell, Lord Chelmsford and the Lord Chief Baron
agreed to deceive the House of Lords by stating that the
charge of faleshood contained in the petition against the
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Lord Chief Baron was unfounded and false whereas they knew
it to be true. The magistrate refused to take applicant's
recognizance on the ground that no indictable offence was
disclosed by the information. The Court of Queen's Bench
upheld the said order of the magistrate and refused to grant
the rule sought by the applicant. Cockburn CJ., after
referring to the information which was placed before the
magistrate, said :-
"Now inasmuch as these statements
were alleged to have been for the
purpose of preventing the prayer of
the petition, and the statements
could not have had that effect
unless made in the House of Lords,
it seems to me that the fair and
legitimate inference is that the
alleged conspiracy was to make, and
that the statements were made, in
the House of Lords. I think,
therefore, that the magistrate,
looking at this and the rest of the
information, was warranted in
coming to the conclusion, that Mr,
Wason charged and proposed to make
the substance of the indictment,
that these three persons did
conspire to deceive the House of
Lords by statements made in the
House of Lords for the purpose of
frustrating the petition. Such a
charge could not be maintained in a
court of law. It is clear that
statements made by members of
either House of Parliament in their
places in the House, though they
might be untrue to their knowledge,
could not be made the foundation of
civil or criminal proceedings,
however injurious they might be to
the interest of a third person. And
a conspiracy to make such
statements would not makes these
persons guilty of it amenable to
the criminal law.," [p. 576]
[emphasis supplied]
Blackburn J. said :-
"I perfectly agree with my Lord as
to what the substance of the
information is; and when the House
is sitting and statements are made
in either House of Parliament, the
member making them is not amenable
to the criminal law. It is quite
clear that no indictment will lie
for making them, nor for a
conspiracy or agreement to make
them, even though the statements be
false to the knowledge of the
persons making them. I entirely
concur in thinking that the
information did only charge an
agreement to make statements in the
House of Lords, and therefore did
not charge any indictable offence."
[p. 576]
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Lush J. also said :-
"I cannot doubt that it charges a
conspiracy to deceive the House of
Lords, and so frustrate the
application, by means of making
false statements in the house. I am
clearly of opinion that we ought
not to allow it to be doubted for a
moment that the motives or
intentions of members of either
House cannot be inquired into by
criminal proceedings with respect
to anything they may do or say in
the House." [p. 577]
The observations if Cockburn CJ., with whom Blackburn J. has
concurred, show that the substance of the information laid
by Wason was that the alleged conspiracy was to make false
statements and that such statements were made in the House
of Lords and that the said statements had been made the
foundation of the criminal proceeding. Though in the
judgment there is no reference to Article 9 of the Bill of
Rights but the tenor of the abovequoted observations of the
learned Judges leave no doubt that the judgment was based on
that Article. It has been so understood in later judgments.
[See : R.V. Caurrie & Ors.].
Reliance has been placed by Shri Rao on the
observations of Lush J. that "the motives or intentions of
members of either House cannot be inquired into by criminal
proceedings with respect to anything they may do or say in
the House".
In Johnson, while dealing with the contention urged on
behalf of the Government that the Speech or Debate Clause
was meant to prevent only prosecutions based on the content
of speech, such as libel actions, but not those founded on
the antecedent unlawful conduct of accepting or agreeing to
accept a bribe, Harlan J. has observed :-
"Although historically seditious
libel was the most frequent
instrument for intimidating
legislators, this has never been
the sole form of legal proceedings
so employed, and the language of
the Constitution is framed in the
broadest terms." [PP. 689, 690]
In order to show the broader thrust of the privilege
reference was made by the learned Judge to the decision in
Ex parte Wason and the observations of Cockburn CJ. and Lush
J/. have been quoted. The contention that the Speech or
Debate Clause was not violated because the gravamen of the
count was the alleged conspiracy, not the speech, was
rejected by pointing out that "the indictment itself focused
with particularity upon motives underlying the making of the
speech and upon its contents". [p 690]. The learned Judge
has further said :-
"We emphasise that our holding is
limited to prosecutions involving
circumstances such as those
presented in the case before us.
Our decision does not touch a
prosecution which, though as here
founded on a criminal statute of
general application, does not draw
in question the legislative acts of
the defendant member of Congress or
his motives for performing them."
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[pp. 690, 691]
"The making of the speech, however,
was only a part of the conspiracy
charge. With all references to this
aspect of the conspiracy
eliminated, we think the Government
should not be precluded from a new
trial on this count, thus wholly
purged of elements offensive to the
Speech or Debate Clause.: [p. 691]
In Brewster Brennan J. and White J. in their dissenting
judgments, have referred to the earlier judgment in Johnson
and the decision in Ex parte Wason. Brennan J. was of the
view that Johnson "can only be read as holding that a
corrupt agreement to perform legislative acts, even if
provable without reference to the acts themselves may not be
the subject of a general conspiracy prosecution". [p. 533].
Burger CJ. did not agree with this reading of Johnson and
said :-
"Johnson thus stands on a unanimous
holding that a Member of Congress
may be prosecuted under a criminal
statute provided that the
Government's case does not rely on
legislative acts or the motivation
for legislative acts. A legislative
act has consistently been defined
as an act generally done in
Congress in relation to the
business before it. In sum, the
Speech or Debate Clause prohibits
inquiry only into those things
generally said or done in the House
or the Senate in the performance of
official duties and into the
motivation for those acts." [pp.
517, 518]
After pointing out that the privileges in England is by no
means free form grave abuses by legislators, Burger CJ. has
observed :-
"The authors of our Constitution
were well aware of the history of
both the need for the privilege and
the abuses that could flow from the
sweeping safeguards. In order to
preserve other values, they wrote
the privilege so that it tolerated
and protects behaviour on the part
of Members not tolerated and
protected when done by other
citizens, but the shield does not
extend beyond what is necessary to
preserve the integrity of the
legislative process.' [p. 521]
The learned Chief Justice took note of the fact that
"Congress is ill-equipped to investigate, try, and punish
its Members for a wide range of behaviour that is lossely
and incidentally related to the legislative process" and
said :-
"In this sense, the English analogy
on which the dissents place much
emphasis, and the reliance on Ex
parte Wason, LR 4 QB 573 (1869),
are inapt." [p. 521]
While referring to the observations made by Brennan J., the
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learned Chief Justice has observed :-
"Mr. Justice Brennan suggests that
inquiry into the alleged bribe is
inquiry into the motivation for a
legislative act, and it is urged
that this very inquiry was
condemned as impermissible in
Johnson. That argument misconstrues
the concept of motivation for
legislative acts. The Speech or
Debate Clause does not prohibit
inquiry into illegal conduct simply
because it has some nexus to
legislative functions. In Johnson,
the Court held that on remand,
Johnson could be retried on the
conspiracy-to-defraud count, so
long as evidence concerning his
speech on the House floor was not
admitted. The Court's opinion
plainly implies that had the
Government chosen to retry Johnson
on that count, he could not have
obtained immunity from prosecutions
by asserting that the matter being
inquired into was related to the
motivation for his House speech."
[p. 527]
In his dissenting judgment White J., after referring to Ex
parte Wason has observed :-
"The Wason court clearly refused to
distinguish between promise and
performance; the legislative
privilege applied to both." [p.
546]
The learned Judge then refers to Johnson and says :-
"I find if difficult to believe
that under the statute there
involved the Johnson Court would
have permitted a prosecution based
upon a promise to perform a
legislative act." [p. 546].
But in Helstoski White J. was a party to the majority
judgment delivered by Burger CJ. wherein it was held :-
"Promises by a member to perform an
act in future are not legislative
acts". [p. 23]
"But it is clear from the language
of the clause that protection
extends only to an act that has
already been performed. A promise
to deliver a speech, to vote, or to
solicit other votes at some future
dates is not `speech or debate'.
Likewise a promise to introduce a
bill is not a legislative act." [p.
24].
In Bunting Wilson CJ., has considered, Ex parte Wason and
has pointed out that in that case the alleged conspiracy
could not fall under the head of an agreement to do an
illegal act because the truth of falsity of statements made
by members in Parliament could not b e enquired into by the
court and that it did not also fall under the head of doing
an act, nor necessarily illegal, by illegal means because
there were no illegal means used or to be used. The learned
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Chief Justice has, however, observed :-
"But if these three persons had
agreed that the two members of the
House of Lords should make these
false statements, or vote in any
particular manner, in consideration
of a bribe paid or to be paid to
them, that would have been a
conspiracy to do an act, not
necessarily illegal perhaps, but to
do the act by illegal means,
bribery being an offence against
the law; and the offence of
conspiracy would have been complete
by reason of the illegal mans by
which the act was to be effected.
That offence could have been
inquired into by the Court, because
the inquiry into all that was done
would have been of matters outside
of the House of Lords, and there
could therefore be no violation of,
or encroachment in any respect
upon, the lex parliament". [p. 554]
In R. V. Currie & Ors. Buckley J. has referred to the
observations of Wilson CJ. in Bunting and has ruled that the
reasoning in Ex parte Wason would not apply to alleged
bribery for the proof of which no reference to goings on in
Parliament would be necessary.
in
We may now examine whether the decision Ex parte Wason
has any bearing on the interpretation of Article 105(2).
Clauses (1) and (2) of Article 105 are interlinked, while
clause (1) secures to the Members freedom of speech in
Parliament, clause (@) safeguards and protects the said
freedom by conferring immunity on the Members from liability
in respect of anything said or any vote given by him in
Parliament or in any committee thereof. This is necessary
because for a regulatory body like Parliament, the freedom
of speech is of the utmost importance and a full and free
debate is on the essence of Parliamentary democracy. In
England this freedom of speech in Parliament is secured by
Article 9 of the Bill of Rights. Though clause (2) Article
105 appears to be similar to Article 9 of the Bill of Rights
but a closer look would show that they certain aspects.
Article 9 of the Bill of Rights, by prescribing that
"freedom of speech and debates or proceedings in Parliament
ought not to be impeached or questioned in any court or
place out of Parliament", confers immunity in respect of
speech, debates or proceedings in Parliament being
questioned in any court or place out of Parliament. The said
immunity has been construed to precluded what was said or
done in Parliament in the course of proceedings there being
examined outside Parliament for the purpose of supporting a
cause of action even though the case of action itself arose
out of something done outside Parliament. See : Church of
Scientology of California v. Johnson Smith, 1972 (1) All ER
378]. In an Australian case R. v. Murphy, (1986) 5 NSWLR 18,
a question arose whether in the course of criminal trial,
the witness's earlier evidence to the Select Committee could
be put to him in cross-examination with a view to showing a
previous inconsistent statement. Hunt J. in the Supreme
Court of New South Wales, held that Article 9 of the Bill of
Rights did not prohibit such cross-examination even if the
suggestion was made that the evidence given to the Select
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Committee was a lie. He further held that the statements of
the Select Committee could b e used to draw inferences and
could be analysed and be made the basis of submission.
In Prebble v. Television New Zealand Ltd., 12994 All ER
407. Lord Browne Wilkinson, speaking for the Judicial
Committee of the Privy Council, after taking note of the
decision of Hunt J. in R. v. Murphy (supra), has said :-
"Finally, Hunt J. based himself on
a narrow construction of art 9,
derived from the historical context
in which it was originally enacted.
He correctly identified the
mischief sought to be remedied in
1688 as being, inter alia, the
assertion by the King's courts of a
rights to hold a member of
Parliament criminally or legally
liable for what he had done or said
in Parliament. From this he deduced
the principle that art 9 only
applies to cases in which a court
is being asked to expose the maker
of the statement to legal liability
for what he has said in Parliament.
This view discounts the basic
concept underlying art 9 viz. the
need to ensure so far as possible
that a member of the legislature
and witnesses before committees of
the House can speak freely without
fear that what they say will later
be held against them in the courts.
The important public interest
protected by such privilege is to
ensure that the member or witness
at the time he speaks is not
inhibited from stating fully and
freely what he has to say. If there
were any exceptions which permitted
his statement to be questioned
subsequently, at the time when he
speaks in Parliament he would not
know whether or not there would
subsequently be a challenge to what
he is saying. Therefore he would
not have the confidence the
privilege is designed to protect."
[p. 415]
The protection given under clause (2) of Article 105 is
narrower than that conferred under Article 9 of the Bill of
Rights in the sense that the immunity conferred by that
clause in personal in nature and is available to the member
in respect of anything said or in any vote given by him in
the House or any committee thereof. The said clause does not
confer an immunity for challenge in the court on the speech
or vote given by a Member of Parliament. The protection
given under clause (2) of Article 105 is thus similar to
protection envisaged under the construction placed by Hunt
J. in R v., Murphy [supra] on Article 9 of the Bill of
Rights which has not been accepted by the Privy Council in
Prebble v. Television New Zealand Ltd. The decision in Ex
parte Wason (supra), which was given in the context of
Article 9 of the Bill of Rights, can, therefore, have no
application in the matter of construction of clause (2) of
Article 105. Ex parte Wason (supra), which holds that the
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information laid by Wason did not disclose any indictable
offence, proceeds on the basis that statements made by
members of either House of Parliament in their places in the
House, though they might be untrue to their knowledge, could
not be made the foundation of civil or criminal proceedings.
The position under clause (2) of Article 105 is, however,
different. The said clause does not prescribe that a speech
made or vote given by a member in Parliament cannot be made
the basis of civil or criminal proceedings at all. The said
clause only gives protection to the member who has made the
speech or has given the vote from liability in any
proceeding in a court of law. Therefore, on the basis on t
he decision in Ex parte Wason (supra), it cannot be said
that no offence was committed by those who are alleged to
have offered the illegal gratification and by those who had
received such gratification to vote against the No
Confidence Motion and for that reason the charge of
conspiracy and abetment must also fall. On the basis of
Article 105(2) the claim for immunity from prosecution can
be made only on behalf of A-3 to A-5 and A-16 to A-21 who
are alleged to have voted against the No Confidence Motion.
As to whether they are entitled to such immunity under
Article 105(2) will, however, depend on the interpretation
of the provisions of Article 105(2).
As indicated earlier, Article 105(2) is in two parts.
In these appeals we are required to consider the first part
which provides 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. The immunity that has been conferred by this
provision is : (i) only on the Member of Parliament, (ii)
with regard to liability in any proceedings in any court,
which would include civil as well as criminal proceedings,
(iii) in respect of anything said or any vote given by such
Member, (iv) in Parliament of in any committee thereof.
Shri Rao has submitted that having regard to the object
underlying the provision, viz., to secure the freedom of
speech in Parliament to the members, the immunity granted
under clause (2) must be construed in a wide sense and just
as the expression "anything" was construed in Tej Kiran Jain
& Ors v. N. Sanjiva Reedy & Ors., 1971 (1) SCR 612, as a
word of widest import, the expression "in respect of" must
also be given a wide meaning so as to comprehend an act
having a nexus or connection with the speech made or a vote
given by a member in Parliament or any committee thereof and
would include, within its ambit, acceptance of bribe by a
member in order to make a speech or to cast his vote in
Parliament or any committee thereof in a particular manner.
In support of his submission for giving a wider meaning to
the expression "in respect of" Shri Rao h as relied upon the
decisions of this Court in The State of Tripura v. The
Province of East Bengal, 1951 (2) SCR 1; Tolaram Relumal and
Anr. v. The State of Bombay, 1955 (1) SCR 158; and S.S.
Light Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. & Anr.
1960 (2) SCR 926, and the decision in Paterson v. Chadwick,
1974 (2) All ER 772.
The learned Attorney General has, on the other hand,
urged that immunity granted under clause (2) of Article 105
is intended to protect a member form liability arising out
of the speech made by him or vote given by him and it cannot
be extended to cover the conduct of a member who has
received bribe or has entered into a conspiracy to commit
the offence of bribery in order to make a speech or cast his
vote in Parliament. The submission is that the expression
`in respect of' in clause (2) of Article 105 must be so
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construed as to ensure that the immunity conferred under
clause (2) is only available in respect of legitimate acts
of a member of Parliament and it cannot be invoked to secure
immunity against any criminal acts committed by member in
order to make a speech or to give his vote in Parliament or
in any committee thereof. According to the learned Attorney
General, the expression `in respect of' in Article 105(2)
must be construed to moon `foe'. Reliance has been placed
by him on the decision of this Court in State of madras v.
M/s Swastik Tobacco Factory, Vedaranyam, 1966 (3) SCR 79.
In Tej Kiran Jain the appellants had filed a suit for
damages in respect of defamatory statements alleged to have
been made by certain members of Parliament on the floor of
the Lok Sabha during a calling attention motion. The said
suit was dismissed by the High Court on the view that no
proceedings could be initiated in respect of anything said
on the floor of the House in view of Article 105(2) of the
Constitution. Before this Court it was contended on behalf
of the plaintiffs that the immunity under Article 105(2) was
granted to what was relevant to the business of Parliament
and not to something which was irrelevant. The said
contention was rejected by the Court. It was observed :-
"The article confers immunity inter
alia in respect of `anything said
....... in Parliament'. The word
`anything' is of the widest import
and is equivalent to `everything'.
The only limitation arises from the
words `in Parliament' which means
during the sitting of Parliament
and in the course of the business
of Parliament. We are concerned
only with speeches in Lok Sabha.
Once it was proved that Parliament
was sitting and its business was
being transacted, anything said
during the course of that business
was immune from proceeding in any
court. This immunity is not only
compete but is as it should be. It
is of the essence of parliamentary
system of Government that people's
representatives should be free to
express themselves without fear of
legal consequences. What they say
is only subject to the discipline
of the rules of Parliament, the
good sense of the members and the
control of proceedings by the
Speaker. The courts have no say in
the matter and should really have
none." [p. 615]
These observations in Tej Kiran Jain emphasise the object
underlying the immunity that has been conferred under
Article 105(2), namely, that the people's representatives
should be free to exercise their functions without fear of
legal consequences. Borrowing the words Burger CJ. it can be
said that this immunity has been `"to protect the integrity
of the legislative process by ensuring the independence of
the individual legislators". It cannot be given a
construction which could lead to Article 105(2), a charter
for freedom of speech in Parliament, being regarded, as per
the phrase used by Lord Salmon, a "charter for corruption"
so to elevate Members of Parliament as "super citizens,
immune from criminal responsibility". (Burger CJ. in
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Brewster). It would indeed be ironic if a claim for immunity
from prosecution founded on the need to ensure the
independence of Members of Parliament in exercising their
right to speak or cast their vote in Parliament, could be
put forward by a Member who has bartered away his
independence by agreeing to speak or vote in a particular
manner in lieu of illegal gratification that has been paid
or promised. Bu claiming the immunity such a Member would
only be seeking a licence to indulge in such corrupt
conduct.
It is no doubt true that a member who is found to have
accepted bribe in connection with the business of Parliament
can be punished by the House for contempt. But that is not a
satisfactory solution. In exercise of its power to punish
for contempt the House of Commons can convict a person to
custody and may also order expulsion or suspension from the
service of the House. There is no power to impose a fine.
The power of committal cannot exceed the duration of the
session and the person, if not sooner discharged by the
House, is immediately released from confinement on
prorogation. [See " may's Parliamentary Practice, 21st Edn.
pp. 103, 109 and 111]. The House of Parliament in India
cannot claim a higher power. The Salmon Commission has
stated that "whilst the theoretical power of the House to
commit a person into custody undoubtedly exists, nobody has
been committed to prison for contempt of Parliament for a
hundred years or son, and it is most unlikely that
Parliament would use this power in modern conditions". [para
306[]. The Salmon Commission has also expressed the view
that in view of the special expertise that is necessary for
this type of inquiry the Committee of Privileges do not
provide an investigative machinery comparable to that of a
police investigation. [para 310]
The expression `in respect of' has to be construed in
this perspective. The cases cited by Shri Rao do show that
this expression has been construed as having a wider meaning
to convey `some connection or relation in between the two
subject matters to which the words refer'. But as laid down
by this Court in The State of Madras v. M/s Swastik Tabacco
Factory, Vendarayam (supra) the expression has `received a
wide interpretation, having regard to the object of the
provisions and the setting in which the said words
appeared'. The expression `in respect of' in Article 105(2)
has, therefore, to be construed keeping in view the object
of Article 105(2) and the setting in which the expression
appears in that provision.
As mentioned earlier, the object of the immunity
conferred under Article 105(2) is to ensure the
independence of the individual legislators. Such
independence is necessary for healthy functioning of the
system of parliamentary democracy adopted in the
Constitution. Parliamentary democracy is a part of the basic
structure of the Constitution. An interpretation of the
provisions of Article 105(2) which would enable a Member of
Parliament to claim immunity from prosecution in a criminal
court for an offence of bribery in connection with anything
said by him or a vote given by him in Parliament or any
committee thereof and thereby place such Members above the
law would not only be repugnant to healthy functioning of
Parliamentary democracy but would also be subversive of the
Rule of Law which is also an essential part of the basic
structure of the Constitution. It is settled law that in
interpreting the constitutional provisions the court should
adopt a construction which strengthens the foundational
features and the basic structure of the Constitution. [See-
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Committee on Judicial Accountability v. Union of India, 1991
(4) SCC 699, 719]. The expression `in respect of' precedes
the words `anything said or any vote given' in Article
105(2). The words `anything said or any vote given' can only
mean speech that has already been made or a vote that has
already been given. The immunity from liability, therefore,
comes into play only if a speech has been made or vote has
been given. The immunity would not be available in a case
where a speech has not been made or a vote has not been
given. When there is a prior agreement whereunder a Member
of Parliament has received an illegal consideration in order
to exercise his right to speak or to give his vote in
particular manner on matter coming up for consideration
before the House, there can be two possible situations.
There may be an agreement whereunder a Member accepts
illegal gratification and agrees not to speak in Parliament
or not to give his vote in Parliament. The immunity granted
under Article 105(2) would not be available to such a Member
and he would be liable to be prosecuted on the charge of
bribery in a criminal court. What would b e the position if
the agreement is that in lieu of the illegal gratification
paid or promised the Member would speak or give his vote in
Parliament in a particular manner and he speaks and gives
his vote in that manner ? As per the wide meaning suggested
by Shri Rao for the expression `in respect of', the immunity
for prosecution would be available to the Member who has
received illegal gratification under such an agreement for
speaking or giving his vote and who has spoken or given his
vote in Parliament as per the said agreement because such
acceptance of illegal gratification has a nexus or
connection with such speaking or giving of vote by that
Member. If the construction placed by Shri Rao on the
expression `in respect of' is adopted, a Member would be
liable to be prosecuted on a charge of bribery if he accepts
bribe for not speaking or for not giving his vote on a
matter under consideration before the House but he would
enjoy immunity from prosecution for such a charge if he
accepts bribe for speaking or giving his vote in Parliament
in a particular manner and he speaks or gives his vote in
Parliament in that manner. It is difficult to conceive that
the framers of the Constitution intended to make such a
distinction in the matter of grant of immunity between a
Member of Parliament who receives bribe for speaking or
giving his vote in Parliament in a particular manner and
speaks or gives his vote in that manner and a Member of
Parliament who receives bribe for not speaking or not giving
his vote on a particular matter coming up before the House
and does not speak or give his vote as per the denying such
immunity to the latter. Such an anamolous situation would be
avoided if the words `in respect of' in Article 105(2) are
construed to mean `arising our of'. If the express in `in
respect of' is thus construed, the immunity conferred under
Article 105(2) would be confined to liability that arises
out of or is attributable to something that has been said or
to a vote that has been given by a Member in Parliament or
any committee thereof. The immunity would be available only
if the speech that has been made or the vote that has been
given is an essential and integral part of the cause of
action for the proceedings giving rise to the liability. The
immunity would not be available to give protection against
liability for an act that precedes the making of the speech
or giving of vote by a Member in Parliament even though it
may have a connection with the speech made or the vote given
by the Member if such an act gives rise to a liability which
arise independently and does not depend on the making of the
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speech or the giving of vote in Parliament by the Member.
Such an independent liability cannot be regarded as
liability in respect of anything said or vote given by the
Member in Parliament. The liability for which immunity can
be claimed under Article 105(2) is the liability that has
arisen as a consequence of the speech that has been made or
the vote that has been given in Parliament.
An indication about the liability with regard to which
immunity is granted by Article 105(2) is given in the
Legislative Privileges Case wherein in the context of clause
(2) of Article 194, which confers immunity similar to that
conferred by Article 105(2) on Members of the State
Legislatures, it has been said :-
"Having conferred freedom of speech
on the legislators, clause (2)
emphasises the fact that the said
freedom is intended to the
abosolute and unfettered. Similar
freedom is guaranteed to the
legislators in respect of the votes
they may given in the Legislature
or any committee thereof. In other
words, even if a legislator
exercises his right of freedom of
speech in violation, say, of
Article 21, he would not be liable
for any action in any court.
Similarly, if the legislator by his
speech or vote, is alleged to have
violated any of the fundamental
rights guaranteed by Part III of
the Constitution in the Legislative
Assembly, he would not be
answerable for the said
contravention in any court. If the
impugned speech amounts to libel or
becomes actionable or indictable
under any other provision of the
law, immunity has been conferred on
him from any action in any court by
this clause." [p. 441]
With regard to liability arising from giving of vote in
the House an illustration is furnished by the decision of
the US Supreme Court in Kilbourn v. Thompson, 26. L.Ed. 377.
In the case one Hallet Kilbourn was found guilty of contempt
of the House of Representatives and was ordered to be
detained in custody under a resolution passed by that House.
He brought an action in trespass for false imprisonment
against the members of the House who had voted in favour of
the resolution. The action was held to be not maintainable
against the members in view of the immunity conferred by the
Speech or Debate Clause in the US Constitution.
The construction placed by on the expression `in
respect of' in Article 105(2) raises the question : Is the
liability to be prosecuted arising from acceptance of bribe
by a Member of Parliament for the purpose of speaking or
giving his vote in Parliament in a particular manner on a
matter pending considerations before the House an
independent liability which cannot be said to arise out of
anything said or any vote given by the Member in Parliament
? In our opinion, this question must be answered in the
affirmative. The offence of bribery is made out against the
receiver if takes or agrees to take money for promise to act
in a certain way. The offence is complete with the
acceptance of the money or on t he agreement to accept the
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money being concluded and is not dependent on the
performance of the illegal promise by the receiver. The
receiver of the money will be treated to have committed the
offence even when he defaults in the illegal bargain. For
proving the offence of bribery all that is required to be
established is that the offender has received or agreed to
receive money for a promise to act in a certain way and it
is not necessary to go further and prove that he actually
acted in that way.
The offence of criminal conspiracy
is defined in Section 120A in these
terms :-
"120-A. Definition of criminal
conspiracy.- When tow or more
persons agree to do, or cause to be
done,-
(1) an illegal act, or
(2) an act which is not illegal by
illegal mean, such an agreement is
designated a criminal conspiracy :
Provided that no agreement except
an agreement to commit an offence
shall amount to a criminal
conspiracy unless some act besides
the agreement is done by one or
more parties to such agreement in
pursuance thereof.
Explanation.- It is immaterial
whether the illegal act is the
ultimate object of such agreement,
or is merely incidental to that
object."
The offence is made out when two or more persons agree to do
or cause to be done an illegal act or when two or more
persons agree to do or cause to be done by illegal means an
act which is not illegal. In view of the proviso to Section
120A IPC an agreement to commit an offence shall by itself
amount to criminal conspiracy and it is not necessary that
some act besides the agreement should be done by one or more
parties to such agreement in pursuance thereof. This means
that the offence of criminal conspiracy would be committed
if two or more persons enter into an agreement to commit the
offence of bribery and it is immaterial whether in pursuance
of that agreement that act that was agreed to be done in
lieu of payment of money was done or not.
The criminal liability incurred by a Member of
Parliament who has accepted bribe for speaking or giving his
vote in Parliament in a particular manner thus arises
independently of the making of the speech or giving of vote
by the Member and the said liability cannot, therefore, be
regarded as a liability `in respect of anything said or any
vote given' in Parliament. We are, therefore, of the opinion
that the protection granted under Article 105(2) cannot be
invoked by any of the appellants to claim immunity from
prosecution on the substantive charge in respect of the
offences punishable under Section 7, Section 13(2) read with
Section 13(1)(d) and Section 12 of the 1988 Act as well as
the charge of criminal conspiracy under Section 120B IPC
read with Section 7 and Section 13(2) read with Section
13(1)(d) of the 1988 Act.
Shri P.P. Rao has also invoked the privileges and
immunities available to Members of Parliament under clause
(3) of Article 105. It has been urged that since no law has
been made by Parliament defining the powers, privileges and
immunities of each House of Parliament, the powers,
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privileges and immunities enjoyed by Members of Parliament
in India are the same as those enjoyed by the Members of the
House of Commons of the Parliament of the United Kingdom at
the commencement of the Constitution on January 26, 1950. In
order to show that on January 26, 1950 a Member of the House
of Commons in the United Kingdom enjoyed an immunity from
prosecution for bribery in connection with the exercise of
his functions as such Member, Shri Rao has invited our
attention to the following statement in May's Parliamentary
Practice :-
"The acceptance by any Member of
either House of a bribe to
influence him in his conduct as
such Member or of any fee,
compensation or reward in
connection with the promotion of,
or opposition to any bill,
resolution, matter of thing
submitted or intended to be
submitted to the House or any
committee thereof is a breach of
privilege." [18th Edn.p. 138]
It has been submitted that since acceptance of a bribe by a
Member of House of Commons was treated as breach of
privilege and was not triable as an offence in any criminal
court in the United Kingdom, the same privilege and immunity
is available to a Member of Parliament in India by virtue of
the second part of clause (3) of Article 105. It has been
further contended that in a case where the conduct which
constitutes the breach of privilege is also an offence at
law, it is for the House to decide whether the punishment
which the House is empowered to inflict is not adequate to
the offence and it is necessary that the offender should be
prosecuted in a criminal court an d reliance is placed on
the following passage in May's Parliamentary Practice :-
"In case of breach of privilege
which are also offences at law,
where the punishment which the
House has power to inflict would
not be adequate to the offences, or
where for any other cause the House
has though a proceeding at law
necessary, either as a substitute
for, or in addition to, its own
proceeding, the Attorney General
has been directed to prosecute the
offender." [18th Edn. p.127]
In the Legislative Privileges Case, while construing clause
(3) of Article 194, which was in the same terms as clause
(3) of Article 105, this Court has said :-
"This clause requires that the
powers, privileges and immunities
which are claimed by the House must
be shown to ave subsisted at the
commencement of the Constitution,
i.e., on January 26, 1950. It is
well known that out of a large
number of privileges and powers
which the House of Commons claimed
during the days of its bitter
struggle for recognition, some were
given up in course of time, and
some virtually faded out by
desuetude; and so, in every case
where a power is claimed, it is
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necessary to enquire whether it was
an existing power at the relevant
time. It must also appear that the
said power was not only claimed by
the House of Commons, but if a
particular power which is claimed
by the House was claimed by the
House of Commons but was not
recognised by the English courts,
it would still be upheld that under
the latter part of clause (3) only
on the ground that it was in fact
claimed by the House of Commons. In
other words, the inquiry which is
prescribed by this clause is : is
the power in questions shown or
proved to have subsisted in the
House of Commons at the relevant
time." [pp. 442, 443] [emphasis
supplied]
The learned Attorney General has submitted that till the
decision in R.V. Currie & Ors. the position in England was
that acceptance of bribe by a Member of Parliament was not
being treated as an offence at common law, the question
whether a Member of Parliament enjoys an immunity from
prosecution in a criminal court on a charge of bribery never
came up before the English courts and, therefore, it cannot
be said that on January 26, 1950 the members of the House of
Commons in t he United Kingdom enjoyed a privilege, which
was recognised by the English courts, that they could not be
prosecuted on a charge of bribery in a criminal court and
that such a privilege cannot, therefore, be claimed by
members of Parliament in India under clause (3) of Article
105. The learned Attorney General has placed reliance on the
following observations of Stephen J. in Bradiaugh V. Gossett
(1884) 12 QBD 271 :
"I know of no authority for the
proposition that an ordinary crime
committed in the House of Commons
would be withdrawn from the
ordinary course of criminal
justice."
The learned Attorney General has also placed reliance
on the following statement of law in Halsbury's Laws of
England, Vol AA(1/), Para 37 at page 40, wherein it is
stated :-
"37. Members of Parliament. Except
in relation to anything said in
debate, a member of the House of
Lords or of the House of Commons is
subject to the ordinary course of
criminal justice, the privileges of
Parliament do not apply to criminal
matters."
In Footnote (1) to the said para it is stated that :-
"Although members are probably
subject to the jurisdiction of the
courts in respect of other conduct
in Parliament, they cannot be made
criminally responsible in the
courts for what is said by them in
Parliament while it is sitting; see
the Privileges of Parliament Act
1512 (as amended)."
We find considerable force in the aforesaid submission of
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the learned Attorney General. Since offering of bribe to a
Member of Parliament and acceptance of bribe by him had not
been treated as an offence at common law by the courts in
England, when t he Constitution was adopted in 1950, the
fact that such conduct was being treated as a breach of
privilege by the House of Commons in England at that time
would not necessarily mean that the courts would have been
precluded from trying the offence of bribery committed by a
Member of Parliament if it were to be treated as an offence.
In Australia and Canada where bribery of a legislator was
treated as an offence at common law the courts in White,
Boston and Bunting has held that the legislator could be
prosecuted in the criminal court for the said offence. It
cannot, therefore, be said that since acceptance of bribe by
a Member of House of Commons was treated as a breach of
privilege by the House of Commons and action could be taken
by the House for contempt against the Member, the Members of
the House of Commons, on January 26. 1950, were enjoying a
privilege that in respect of conduct involving acceptance of
bribe in connection with the business of Parliament, they
could only be punished for breach of privilege of the House
and they could not be prosecuted in a court of law. Clause
(3) of Article 105 of the Constitution cannot, therefore, be
invoked by the appellants to claim immunity from prosecution
in respect of the charge levelled against them.
Before we conclude on this aspect relating to the claim
for immunity from prosecution, we would deal with the
contention urged by Shri D.D. Thakur wherein he has laid
emphasis on the practical political realities. The
submission of Shri Thakur is that during the course of the
election campaign a candidate receives financial
contributions and also makes promises to the electorate and
that if the immunity under Article 105(2) is not available
he would be liable to be prosecuted if, after being elected
as member of Parliament, he speaks or gives his vote in
Parliament in fulfilment of those promises. The learned
counsel has placed reliance on the dissenting judgment of
White J. in Brewster wherein he has expressed the view that
permitting the executive to initiate the prosecution of a
member of Congress for the specific crime of bribery is
subject to serious potential abuse that might endanger the
independence of the legislature. Burger CJ. has, however,
pointed out that there was no basis for such an apprehension
inasmuch as no case was cited in which the bribery statutes
which have been applicable to members of Congress for over
100 years have been abused by the Executive Branch. The
learned Chief Justice has stated :-
"We do not discount entirely the
possibility that an abuse might
occur, but this possibility, which
we consider remote, must be
balanced against the potential
danger flowing from either the
absence of a bribery statute
violates the Constitution. As we
noted at the outset, the purpose of
the Speech or Debate Clause is to
protect the individual legislator,
not simply for his own sake, but to
preserve the independence and
thereby the integrity of the
legislative process. But financial
abuses, by way of bribes, perhaps
even more than Executive power,
would gravely undermine legislative
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integrity and defeat the right of
the public to honest
representation. Depriving the
Executive of the power to
investigate and prosecute and the
Judiciary of the power to punish
bribery of Members of Congress is
unlikely to enhance legislative
independence." [p. 525]
In the earlier part of the judgment we have found that for
the past more than 100 years legislators in Australia and
Canada are liable to be prosecuted for bribery in connection
with their legislative activities and, with the exception of
the United Kingdom, most of the commonwealth countries treat
corruption and bribery by members of legislature as a
criminal offence. In the United Kingdom also there is a
move to change the law in this regard. There appears to be
no reason why legislators in India should be beyond the pale
of laws governing bribery and corruption when all other
public functionaries are subject to such laws. We are,
therefore, unable to uphold the above contention of Shri
Thakur.
On a consideration of the submissions urged by the
learned counsel we arrive at the conclusion that on the
basis of provisions contained in clauses (2) and (3) of
Article 105, the appellants cannot claim immunity from
prosecution on the charges that have been levelled against
them.
Whether a `Public Servant'
We may now come to the question whether a Member of
Parliament is a public servant for the purposes of the 1988
Act. Prior tot he enactment of the 1988 Act the law relating
to prevention of corruption was governed by the Prevention
of Corruption Act, 1947 [hereinafter referred to as `the
1947 Act']. In Section 2 of the 1947 Act it was provided
that for the purposes of the said Act "public servant" means
a public servant as defined in Section 21 IPC. Section 21
IPC provided as follows :
"21. "Public Servant".- The words
"public servant" denote a person
falling under any of the
discriptions hereinafter following,
namely:
First. - [Repealed by the
Adaptation of Laws Order, 1950.]
Second.- Every Commissioned Officer
in the Military, Naval or Air
Forces of India;
Third.- Every Judge including any
person empowered by law to
discharge, whether by himself or as
a member of any body of persons,
any adjudicatory functions;
Fourth.- Every officer of a Court
of Justice (including a liquidator,
receiver of commissioner) whose
duty it is, as such officer, to
investigate or report on any matter
of law or fact, or to make ,
authenticate, or keep any document,
or to take charge or dispose of any
property, or to execute any
judicial process, or to administer
any oath, or to interpret, or to
preserve order in the Court, and
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every person specially authorised
by a Court of Justice to perform
any of such duties;
Fifth.- Every jurymen, assessor, or
member of a panchayat assisting a
Court of Justice or public servant;
Sixth.- Every arbitrator or other
person to whom any cause or matter
has been referred for decision or
report by any Court of Justice, or
by any other competent public
authority;
Seventh.- Every person who holds
any office by virtue of which he is
empowered to place or keep any
person in confinement;
Eighth.- Every officer of the
Government whose duty it is, as
such officer, to prevent offences,
to give information of offences, to
bring offenders to justice, or to
protect the public health, safety
or convenience;
Ninth.- Every officer whose duty it
is, as such officer, to take,
receive, keep or expend any
property on behalf of the
Government, or to make any survey,
assessment or contract on behalf of
the Government, or to execute any
revenue-process or to investigate,
or to report, on any matter
affecting the pecuniary interests
of the Government, or to make,
authenticate or keep any document
relating to the pecuniary interests
of the Government, or to prevent
the infraction of any law for the
protection of the pecuniary
interests of the Government.
Tenth.- Every officer whose duty it
is, as such officer, to take,
receive, keep or expend any
property, to make any survey or
assessment or to levy any rate or
tax for any secular common purpose
of any village, town or district,
or to make, atuhenticate or keep
any document for the ascertaining
of the rights of the people of any
village, town or district;
Eleventh.- Every person who holds
any office by virtue of which he is
empowered to prepare, publish,
maintain or revise an electoral
roll or to conduct an election or
part of an election;
Twelfth.- Every person-
(a) In the service or pay of the
Government or remunerated by
fees or commission for the
performance of any public duty
by the Government;
(b) in the service or pay of a
local authority, a corporation
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established by or under a
Central, Provincial or State
Act or a Government company as
defined in Section 617 of the
Companies Act, 1956 (1 of
1956)."
In R.S.Nayak v. A.R. Antulay. 1984 (2) SCR 495, this Court
construed the provisions of Section 21 IPC in order to
determine whether a Member of the Legislative Assembly could
be held to be a public servant for the purpose of the 1947
Act. The said question was considered in the light of
clauses (3), (7) and (12)(a) of Section 21 IPC. It was
pointed out that Members of Parliament in the United Kingdom
are not covered by the Prevention of Corruption Act, 1906,
the Prevention of Corruption Act, 1916 and the Public Bodies
Corrupt Practices Act, 1889. The Court has also referred to
the Bill called the Legislative Bodies Corrupt Practices
Act, 1925 introduced in 1925 to give effect to the
recommendations of the Reforms Enquiry Committee (known as
Mudiman Committee) which sought to fill in the lacuna in the
existing law and to provide for punishment of corrupt
practices by or relating to members of Legislative Bodies
constituted under the Government of India Act, 1919, and has
taken note that the said Bill was snot enacted into law.
The Court has also referred to the Report of the
Committee, known as the Santhanam Committee, appointed by
the Government of India to suggest changes which would
ensure speedy trial of cases of bribery, corruption and
criminal misconduct and make the law otherwise more
effective, which led to the amendments introduced in
Section 21 IPC by the Anti Corruption Laws (Amendment) Act,
1964 as well as the Statement made by Shri Hathi, Minister-
in-charge, while piloting in the Lok Sabha the Bill which
was enacted as the Anti Corruption laws (Amendment) Act,
1964. The Court held that a Member of the Legislative
Assembly was not comprehended in the definition of `public
servant' in Section 21 IPC and that the amendments
introduced in Section 21 IPC by the Amendment Act of 1964
did not bring about any change. While dealing with clause
(12)(a) of Section 21 IPC, as amended by the Amendment Act
of 1964, the Court observed that a person would be a public
servant under clause (12)(a) if (i) he is in the service of
the Government, or (ii) he is in the pay of the Government,
or (iii) he is remunerated by fees or commission for the
performance of any public duty by the Government. It was
held that even though a Member of Legislative Assembly
receives his salary and allowances in his capacity as such
Member, he is not a person in the pay of the Government
inasmuch as the expression `Government' connotes the
executive and not eh legislature and a Member of Legislative
Assembly is certainly not in the pay of the executive. It
was also held that a Member of Legislative Assembly is also
not remunerated for performance of any public duty by the
Government because he is not remunerated by fees paid by the
Government, i.e. the Executive. At the same time, while
dealing with the contention that a Member of Legislative
Assembly is not performing any public duty it was observed :
"It is not necessary to examine
this aspect because it would be
rather difficult to accept an
unduly vide submission that M.L.A.
is not performing any public duty.
However, it is unquestionable that
he is not performing any public
duty either directed by the
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Government or for the Government.
He no doubt performs public duties
cast on him by the Constitution and
his electorate. He thus discharges
constitutional functions for which
he is remunerated by fees under t
he Constitution and not by the
Executive" [p. 548]
The Court also considered the question whether a Member of
the Legislative Assembly is a public servant with reference
to clauses (3) and (7) of Section 21 IPC and held that a
member of the Legislative Assembly did not fall within the
ambit of the said clauses.
In the 1988 Act the expression `public servant' has
been defined in Section 2(c) which reas as follows :-
"2(c) "public servant" means -
(i) any person in the service or
pay of the Government or
remunerated by the Government
by fees or commission for the
performance of any public
duty;
(ii) any person int he service or
pay of a local authority;
(iii)andy person in the service or
pay of a corporation
established by or under a
Central, Provincial or State
Act, or an authority or a body
owned or controlled or aided
by the Government or a
Government company as defined
in section 617 of the
Companies Act, 1956 (1 of
1956);
iv) any Judge, including any
person empowered by law to
discharge, whether by himself
or as a member of any body of
persons, any adjudicatory
functions;
(v) any person authorise by a
court of justice ot perform
any duty, in connection with
the administration of justice,
including a liquidator,
receiver of commissioner
appointed by such court;
(vi) any arbitrator or other person
to whom any cause or matter
has been referred for decision
or report by a ocurt of
justice or by a competent
public authority;
(vii) any person who holds an
office by virtue of which he
is empowered to prepare,
publish, maintain or rrevised
an electoral roll or to
conduct an election or part of
an election;
(viii)any person who holds an
office by virtue of which he
is authorised or requried to
perform any public duty;
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(ix) any person who is the
president, secretary or other
office-bearer of a registered
co-operative society engaged
in agriculture, industry,
trade or banking, receiving or
having received any financial
aid from the Central
Government or a State
Government or from any
corporation established by or
under a Central, Provincial or
State Act, or any authority or
body owned or controlled or
aided by the Government or a
Government company as defined
in section 617 of the Compnies
Act, 1956 (1 of 1956);
(x) any person who is a chairman,
member or emplyee of any
Service Commission or Board,
by whatever name called, or a
member of any selection
commission appointed by such
Commission or Board for the
conduct ofr any examination or
amking any selection on behalf
of such Commission or Board;
(xi) any person who is Vice-Chair
man or member of any governing
body, professor reader,
lecturer or any other teacher
or employee, by whatever
designatin called, of any
Unversity and any person whose
services have been avawiled of
by a University or any other
public authority in connection
with holding or conducting
examinations;
(xii) any person who is an office-
bearer or an emplyee of an
educational, scientific,
social, cultural or other
institution, in whatever
manner established, receiving
or having received any
financial assistance from the
Central Government or any
State Government, or local or
other public authority.
Explanation 1.- Person falling
under any of the above sub-clauses
are public sevants, whether
appointed by the Government or not.
Explanation 2.- Wherever the
words "public servant" occur, they
shall be understood of ever person
who is in actual possession of the
situation of a public servant,
whatever legal defeat there may be
in his right to hold that
situation."
The expression "public duty" is defined in Section 2(b) in
these terms :-
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"2(b) "public duty" means a duty in
the discharge of which the State,
the public or the community at
large has an interest;
Explanation.- In this clause
"State" includes a corporation
established by or under a Central,
Provincial or State Act, or an
authority or a body owned or
controlled or aided by the
Government company as defined in
section 617 of the Companies Act,
1956 (1 of 1956);"
The clause relevant for our purpose is clause (viii)
whereunder "any person who holds an office by virtue of
which he is authorised or required to perform any public
duty" is to be treated as a public servant under the 1988
Act. The said clause postulates that the person must (i)
hold an office and (ii) by virtue of that office (iii) he
must be authorised or requried to perform (iv) a public
duty.
On behalf of the appellants it has been urged that a
Member of Parliament does not fall within the amibit of this
clause because (1) he does not hold an office; and (2) he is
not authorised or requried to perform any public duty by
virtue of his office.
We will first examine the question whether a Member of
Parliament holds an office. The word `office' is normally
understood to mean "a position to which certain duties are
attached, esp. a place of trust, authority or service under
constituted authority". [See : Oxford Shorter English
Dicikonary, 3rd Edn. p. 1362]. In McMillan v. Guest, 1942 AC
561, Lord Wright has said :-
"The word `office' is of indefinite
content. It various meanings cover
four columns of the New English
Dictionary, but I take as the most
relevant for pusposes of this case
the following : "A position or
place to which certain duties are
"attached, especially one of a more
or less public character."
In the same case Lord Atkin gave the following meaning :-
"an office or employment which was
subsisting, permanent, substantive
position, which had an existence
independent of the person who
filled it, which went on and was
filled in succession by successive
holders."
In Stateman (Private)Ltd. v. H.R. Deb & Ors., 1968 (3)
SCR 614, and Mahadeo v. Shantibhai & Ors., 1969 (2) SCR 422,
this Court has adopted the meaning given by Lord Wright
when it said :-
"An office means on more than a
position to which certain duties
are attached."
In Kanta Kathuria v. Manakchand Surana, 1970 (2) SCR
835, Sikri J, (as the learned Chief Justice then was)
speaking for the majority, while construing the words "
holds any office of profit" in Articel 19(1)(g), has said
that "there must be an office which exists independently of
the holder of the office". It was observed that there is no
essential difference betweent he definitions given by Lord
Wright and Lord Atkin.
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In White the Supreme Court of New South Wales has held
that a member of the State Legislature holds an office. That
view has been affirmed byt he High Court of Australia in
Boston. Isaacs & Tich, JJ. said :
"A membr of Parliament is,
therefore, in the highest sense, as
servant of the State; his duties
are those appertaning to the
position he fills, a position of no
transient or temporary existence, a
position forming a recongnized
place in the constitutional
machinery of government. Why, then,
does he not hold an "office"? In
R.V. White it was held, as a matter
of cours, that the does. That
decision is sound. "Office" is
defined in the Oxford Dictionary,
as including :- "5. A position or
place to which certain duties are
attached, esp, one of a more or
less public character; a position
of turst, authority, or service
under constituted authority." And
"Officer" is defined (inter alia)
as "2. One who holds an ofice,
post, or place. (a) One who holds a
public, civil, or ecclesiastical
office; ... a person
authoritatively appointed or
elected to exercise some function
pertaining to public life." Clearly
amember of Parliament is a "public
officer" in a very real sense , for
he has, in the words of Willams J.
in Faulkner V. Upper Boddingtion
Overseers, "duties to perform which
would constitute in law ian
office". [p. 402]
In Habibullah Khan v. State of Orissa, 1993 Cr. L.J.
3604, the Orissa Hihg Court has held that a Member of the
Legislatvie Assembly holds an office and performs a public
duty. The learned Judges have examined the matter keeping in
view the meaning given to the expression "office" by Lord
Wright as well as by Lord Atkin in McMillan v. Guest
[supra]. Taking into consideration the provisions of
Articles 168, 170, 172 and 173 of the Constitution relating
to Legislative Assembly of the State, the learned Judge ahve
held that the Member of the Legislative Assembly if created
by the Constitution and that there is a distinction between
the office and the holder of the office.
Shri P.P. Rao has, however, pointed out that under the
COnstitution a distinction has been made between an 1office'
and a 1seat' and that while the expression `office' has been
used int he COnstitution inrelation to various
constitutional authorities such as President, [Articles 56,
57, 59 a nd 62] Vice-Presiden, [Article 67] Speaker and
Deputy Speaker of the Lok Sabha, [Article 93, 94, 95 and 96]
Deputy Chairman of Rajya Sabha, [Articl 90] Ministers,
[Article 90] Judge of the Supreme COurt [Article 124], Judge
of the High Court [Article 217] and the Attorney Genral of
India [Article 76] but insofar as a Member of Parliament and
a Member of State Legoslature is concerned the expression
used in `seat' and not `office' which shows that the
COnstitution does not contemplate that a Member of
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Parliament or a Member of State Legislature holds an Office.
In this context Shri Rao has invited our attention to
Article 84, 99, and 101 where the expression `seat' has been
used in respect of Members of Parliament and to Article 173
and 190 where the word `seat' has been used in respect of
Members of State Legislatures.
The learned Attorney General has, on the other hadn,
invited our attention to Section 12, 154, and 155 of the
Representation fo the People Act, 1951 wherein th
eexpression `term of office' has been used in relation to a
Member of the Council of State [Rajya Sabha] and to Section
156 and 157 wherein the said expression has been used in
relation to a Member of the Legislative Council of the State
[Vidhan Parishad], The learned Attorney General has also
invited our attention tot he provisons of The Salary,
Allowances and Pension of Memebrs, of Parliament Act, 1854
wherein the expression `term of office', as defined in
Section 2(e) coverin members of the Council of State as well
as the House of the People, has been used in Section 3
(salaries and daily allowances) Sectuon 4 (travelling
allowances) Section 6(2) (free transit by railway) Section
6-A (2) (free transit by steamer) and Section 8A(1)
(Pension).
It would thus appear that although in t he Constitution
the word `office' has been used in the provisions relating
to Members of Parliament and members of State Legislature
but in other parliamentary enactment relating toe members
of Parliament the word `office' has been used. Having regard
to the provisions of the Contitution and the Representation
fo the People Act, 1951 as well as the Salary, Allowances
and Pension fo Members of Parliament Act, 1954 and the
meaning that has been given to the expressiion `office' in
the decisions of this Court, we are of the view that
Membership of Parliament is an `office' inasmuch as it is a
position carrying certain responsibilities which are of a
public character and it has an existence independent of the
holder of the office. It must, therefore, be held that the
Member of Parliament holds an `office'.
The next question is whether a Member of Parliament is
authorised or required to perform any public duty by virtue
of his office. As mentioned earlier, in R.S. Navak v. A.R.
Antulay this Court has said that though a member of the
State Legislature is not performing any public duty either
directed by the Government or for the Government but he no
doubt performs public duties cast on him by the Constitution
and by his electorate and he discharges constitutional
obligations for which he is remunerated fees under the
Constitution.
In the 1988 Act the expression `publid duty' has been
defined in Section 2(b) to mean " duty in the dischrge of
which the State, the public or the community at large has an
interest".
The Form of Oath or Affirmation which is required to be
made by a Member of Parliament (as prescribed in Third
Schedule to the Constitution) is in these terms :-
"I, A.B., haing been elected (or
nominated) a member of the Council
of States (or the House of the
People) do swear in the name of
God/ Solemnly affirm that I will
bear ture faith and allegiance to
the Constitution of India as by law
established, that I will uphold
that sovereignty and integrity of
India and that I will faithfully
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discharge the duty upon which I am
about to enter."
The words "faithfully discharge the duty uponwhich I am
about to enter' show that a Member of Parliament is required
to discharge certain duties after he is sworn in as a Memebr
of Parliament. Under the COnstitution the Union Executive is
responsibel to Parliament and Members of Parliament act as
watchdogs ont he functioning of the Council of Ministers. In
adition, a Member of Parliament plays an importance role in
parliamentary proceedings, including enactment of
legislation, which is asovereign function. The duties
discharged by him are such in which the State, the public
and the community at large have an interest and the said
duties are, therefore, public duties. It can be said that a
Member of Parliament is authorised and requried by the
Constitution to perform these duties and the said duties are
performed by him by virtue of his office.
In Horne v. Barber, (1920) 27 CLR
494 at p. 500, Isaacs J. has said
:-
"When a man becomes a member of
Parliament, he undertakes high
public duties. Those duties are
inseparable from the position : he
cannot retain the honour and divest
himself of the duties. One of the
duties is that of watching on
behalf of the general community the
conduct of the Executive, of
criticizing it, and if necessary,
of calling it to account in the
constitutional way by censure from
his place in Parliament - censure
which, if sufficiently supported,
means removal from office. That is
the whowle essence of responsibel
Government,w hich is the Keystone
of our Political system, and is the
main consititutional safeguard the
community possesses," [p. 402]
In Boston while examining the nature of duties of
Member of Parliament, Isaacs & Rich, JJ. have reitereated
the abovequoted observations in Horne v. Brber and have
said :-
"The fundamental obligation of a
membr in relation to the Parliament
of which he is a constituent unit
still susbsists as essentially as
at any period of our history. That
fundamental obligation which is the
key to this case is the duty to
serve and, in serving, to act with
fidelity an d with a single-
mindedness for the welfare of the
community." [p. 400]
"These duties are of a transcendent
nature and involve the greatest
responsinbility, for they include
the supreme power of moulding the
laws to meet the necessities of the
people, and the function of
vigilantly controlling and
faithfully guarding the public
finances." [p. 401]
We are, therefore, of the view that a Member of
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Parliament holds an office and by virtue of such office he
is required or authorised to perform duties and such duties
are in the nature of public duties. A Member of Parliament
would, therefore, fall withint he ambit of sub-clause (viii)
of clause (c) of Section 2 of the 1988 Act.
The learned counsel for the appellants have, however,
urged that while enacting the 1988 Act Parliament did not
intend to include Member of Parliament and Members of the
State Legislatures within the ambit of the Act and that the
expression "public servant" as defined in Section 2(c) of
the 1988 Act should be so construed as to exclude Members
of Parliament and Members of State Legislatures. The learned
counsel ahve placed strong reliance ont eh speeches of Shri
P. Chaidambaram, the then Minister of State in the Ministry
of Personnel, Public Grievances and Pensions and in the
Ministry of Home Affairs during the course of debate on the
Prevention of Corruption Bill, 1987 in the Lok Sabha as well
as int he Rajya Sabha. Reliance has been palced on the
following excerpts from the speech of the Minister in the
Lok Sabha on May 7, 1987 and in the Rajya Sabha on May 11
and August 11, 1987 :-
Lok Sabha
"A question has been raised
what is the position of a Member of
Parliament or a Member of a
Legislative Assembly ? We have not
doen anything different or contrary
to the law as it stands today.
Under the law, as it stands today,
the Supreme Court has held in
Antulay's case that a Member of the
Legislative Assmbly is not a public
servant within the meaning of
Section 21 of the Indian Penal
Code.
I personally think that it is
very difficult to say when an MLA
or an MP becomes a public servant.
I believe that when an MP functions
qua-MP perhaps he is not a public
servant and, therefore, we are not
attempting a definition which will
lead to difficulties. We think that
there could b e situations when an
MP of an MLA does centain thing
which are really not part of his
duties as an MP an MLA. We think
that an MP or an MLA could in
certain ciecumstances hold an
office where he Act. If an MP or an
MLA does certain acts not qua-MP or
qua-MLA, but as an indicidual,
abusing his position, I am not
using the word `Office' I think he
will be covered like any other
individual under Section 8, 9 and
12. When an MP or an MLA holds an
office, and by virtue of that
office he has to discharge certain
public duties, I think he will be
covered under Section 2 clause (b)
read with Section 2 Clause (c) Sub-
clause (viii). I think these two
situations are quite adequate to
take care of defeaulting Members of
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Parliament and defaulting Members
of the Legislative Assemblies."
Rajya Sabha
"Now I will reply to the best
of my ability how an MP or an MLA
comes within the ambit of this
Bill. I have tried to explain it in
the Lok Sabha and I will try to do
so here within my limits and to the
best of my capacity. But if you are
quoting my sppech, please quote the
entire paragraphs. Don't take one
sentence and then para phrase, it
and give ypur commentary on its.
Read the whole paragraph, it is
very clear. I have said that an MP
or an MLA will in my opinion, come
within the scope of this Bill in
two situations. ...........
A law has to be made by
Parliament, We make a law with
certain intentions. We use a
certain language. In may view and
in amy best judgment and on the
best advice tht I have, this is how
we think anMP or an MLA will be
covered. This is all that we can
say while we are making a law. We
believe that our interpretation
will be accepted by the courts. If
you find fault with our
interpretation tell use where we
should improve the bill, tell us
how we should imporve the language.
A law is a matter of
interpretation. We are acting
according to the legal advice
availabel to us.
A question was asked about the
Member of Parliament and Members of
Legislative Assembly. Madam, under
the law decleared by the Supreme
Court, a Member of Parliament or a
Member of Legislative Assembly per
se is not a public servant. But
there can be a number of situations
where an MP or an MLA holds another
office and discharges other duties
which will being him under this
Bill. If he holds another office
in a cooperative society, if he
holds another office in a public
institution or if he discharges
certain duties which will come
under the definition of public
duty clearly, then he would be
within the definition of `public
servant' under this Bill. But these
are matters in which you cannot
make on a prior assumption. One has
to look into the facts of each case
and then the courts will decided on
the facts of that case.
It has been urged that these excerpts from the speeches
of the Minister who has moved the Bill for consideration in
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both the Houses of Parliament throws considerable light on
the meaning of the expression `public servant' as defined in
Section 2(c) of the 1988 Act and that provisions of Section
2(c)(viii) of the 1988 Act should be given a construction
whihc is in accord with these statements of the Minister.
Relying upon the decisions of this Court in K.P. Verghese v.
Income Tax Officer, 1982 (1) SCR 629, R.S. Nayak v. A.R.
ANTULAY (supra); State of Orissa v. Mahanadi Coal Fields,
1995 Supp. (2) SCC 686; and Marendra Kumar Maheshwari v.
Union of India, 1989(3) SCR 43, Shri Rao has urged that the
speech of the mover of the Bill can be looked into for
construing the provisions of the enactment. It has been
pointed out tht in hte recent decision in Pepper v. Hart,
1993 (1) All ER 42, the House of Lorde has also departed
from the earlier position taken by the courts in England in
this regard and that it has been held that the statement of
the Minister who had moved the Bill in Parliament can be
taken into consideration for the purpose of interpreting the
provisions of the enactment.
The view vwhich prevailed earlier with the courts in
England was that references to Parliamentary material as an
aid to statutory construction is not permissible. The said
exclusionary rule precluded the court from looking even at
reports made by Commissioners on which legislation was
based. The rigidity of the said rule was relaxed in later
decisions so as to permit reports of Commissioners,
including Law Commissioners, and white papers to be looked
at for the purpose solel,y of ascertaining the mischief the
statute is intended to cure but not for the purpsoe of
discovering the meaning of the words used by Parliament to
effect such cure. Parliamentary debates were, however, not
looked at as an aid to construction. The rationale for the
exculsion of parliament debates is contained in the speech
of Lord Reld in Black-Clawson International Ltd. v.
Papierworke Waidhof-Aschaffenburg, 1975 AC 591. The learned
Lord Reid has said :-
"We often say that we are looking
for the intention of Parliament,
but that is not quite accurate. We
are seeking the meaning of the
words whihc Parliament used. We are
seeking not what Parliament meant
but the true meaning of what they
said."
"The questions which give rise to
debate are rerely those which later
have to be decided by the courts.
One might take the views of the
promoters of a Bill as an
indication of the intention of
Parliament but any view the
promoters may have had about
questions which later come before
the court will not often appear in
Hansard and often those questions
have neve occurred to t he
promoters. At best we might get
material from which a more or less
dubious inference moght be drawn as
to what the promoters inmtended or
would have intended if they had
though about the matter, and it
would, I think, gfenerally be
dangerous to attach weight to what
some other members of either House
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may have said" [pp. 613-615]
The decision in Pepper v. Hart makes an advance. In
that case Lord Browne- Wilkisnon, who delivered the main
judgment, has said :-
".........In my judgment, subject to the questions of
the privileges of the House of Commons, reference to
parliamentary material should be permitted as an aid to
the construction of legislation which is ambiguous or
obscure or the literal meaning of which leads to an
absurdity. Even in such cases references in court to
parliamentary material should only be permitted where
such material clearly discloses t he mischief aimed at
or the legislative intention lying behind the ambiguous
or obscure words. In the case of statements made in
Parliament, as at present advised I cannot foresee that
any statement other than the statement of the minister
or other promoter of the Bill is likely to meet these
criteria." [p.64]
"........Given the purposive approach to construction
now adopted byt eh courts in order to give effect to
the true intentions of the legislature, the fine
distinctuions between looking for the mischief and
looking for the intention in useing words to provide
the remedy are technicdal and inappropriate. Clear and
unambiguous statements made by ministers in Parliament
are as much the background to the enactment of
legislation as white papers and parliamentary reports."
[p. 65]
In the earlier decisions this court also adopted the
rule of exclusion followed by the English courts.
Parliamentary debates on a Bull were held to be inadmissible
for construction of the Act [See : Aswini Kumar Ghose v.
Arabinda Bose. 1953 SCR 1 at p. 29]. But in later judgemnt
this court has referred to the speech of the Minister while
introducting the Bill in the Legislature for the purpose of
ascertaining the mischief sought to be remedied by the
legislation and the object and purpose for which the
legislation is enacted. In K.P. Verghese v. Income Tax
Officer, 1982 (1) SCR 629, Bhagwati,J. (as the learned Chief
Justice then was) has siad :
"Now it is true that the speeches
made by the Members of the
Legislatures on the florr of the
House when a Bill for enacting a
statutory provision is being
debated are inadimissible for the
purpose of interpreting the
statutory provision but he speech
made by the Mover of the Bill
explaining the reason for the
introduction of the Bill can
certainly be referred to for the
purpose of ascertaining the
mischief sought to be remedied by
the legislation and the object and
purpose for which the legislation
is enacted." [p. 645]
The otehr decisions of this Court cited by Shri Rao do
not lay down any different principle. On the other hand in
Snajeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd.,
1983 (1) SCR 1000, this court has laid down :-
"No one may speak for the
Parliament and Parliament is never
before the Court. After Parliament
has said what it intends to say,
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only the Court may say what the
Parliament meant to say. None else.
Once a statute leaves Parliament
House, the Court's is the only
authentic voice which may echo
(interpret) the Parliament. This
the court will do with reference to
the language of the statute and
other permissible aids." [p. 1029]
It would thus be seen that as per the decisions of this
Courtt the statement of the Minister who had moved the Bill
in Parliament can be looked at to a scertain mischief sought
to be remedied by the legislation and the object and purpose
for which the legislation is enacted. The statement of the
Minister who had moved the Bill in Parliament is not taken
into account for the purpose of interpreting the provisons
of the enactment. The decision in Pepper v. Hart permits
reference to the statement of the minister or other promoter
of the Bill as an aid to construction of legislation which
is ambiguous or obscure or the literal meaning of which
leads to an absurdity provided the statement relied upon
clearly discloses the mischief aimed at or the legislative
intention lying behind the ambigous or obscure words and
that such a statement of the minister must be clear and
unambiguous. This rule of contruction laid in Papper v. Hart
has no application int he present case because sub-clause
(viii) of Section 2(c) of the 1988 Act cannot be said to be
ambiguous or obscure nor can it be said that the literal
meaning of the said clause leads to any absurdity.
Moreover, the excerpts from the statement of the Minister on
which rellance has been placed byt eh learned counsel fo the
appellants cannot be regarded as clear and unambiguous on
the questionw hether a Member of Parliament or the Member fo
the State Legislature would fall within the ambit of `public
servant' under the 1988 Act because according to the
statements of the Minister a Member of Parliament and a
Memebr of the State legislature would be a `public servant'
under Secction 2(c)(viii) of the Act in certain stuations.
The statemnt of the Minister does not clearly indicate those
situations. The provisions of the 1986 Act also do not give
any indication about the situations in whihc a Member of
Parliament or a Member of the State Legislature would be
treated as apublic servant and the situations in which he
will not be treated as a public servant. Shri Kapil Sibal
has submitted that what the Minister meant was that if a
Member of Parliament or a Member of the State Legislature
is given some other assignment, e.g. memebership of a
delegation, then in connection witht that assignment his
position would be that of a public servant under the 1988
Act. The language used in Section 2(c)(viii) does not lend
support to such a limit4d onstruction of the said provision.
Having regard to the object of the 1988 Act as
indicated in the Statement of Objects and Reasons, nemely,
to widen the scope of the definition of hte expression
"public servant". which is sought to be achieved by
itnroducing the definition of "public duty" in Section 2(b)
and the definition of `public servant' in Section 2(c) which
enlarges the scipe of the existing definition of public
servant contained in Section 21 IPC, we do not find any
justification for restricting the scope of the wide words
used in sub-clause (viii) of Section 2(c) in the 1988 Act on
the basis of the statement of the Minister so as to exclude
Members of Parliament a nd Members of State Legislatures. In
our opinion th eowrds used in sub-clause (viii) of Section
2(c) are clear and ambiguous they cannot be out down on the
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basis of the statement made by the Minister while piloting
the Bill in Parliament.
Shri D.D. Thakur has invoked the doctrine of Promissory
Estoppel and ahs submitted that in view of the statement
made by the Minister whiel piloting the Bill in Parliament
that Members of Parliament and Members of the State
Legislatures do not fall withint he sambit of the definition
of "public servant" the State is estopped from taking a
contrary satand and to claim that a Member of Parliament is
a public servant under Section 2(c) of the Act. There is no
legal basis for this contention. We are concerned with the
provisions of a law made by Parliament. There is no estoppel
against the statute.
Shri Thakur has also invoked the rule of statutory
construction that the legislature does not intend to make a
substantial alteration in law beyond what it wxplicity
declares either in express words or by clear implication and
that the general words of the Act are not to be so construed
as to alter the previous policy of the law. He has placed
reliance on the decision in M.K. Ranganathan & Anr v.
Government of Madra & Ors., 1955(2) SCR 374. The said rule
can have not application int he apresent c ase because the
1988 Act has replaced th 1947 Act. It has been enacted with
the specific object o faltering the existing anti-corruption
laws so as to make them more effective by widening their
coverage and by strengthening the provisions and also to
widen the scope of the definition of `public servant'.
Having considered the submissions of the learned
counsel ont he meaning of the expression `public servant' in
contained Section 2(c) of the 1988 Act , wer are of the view
that a Member of Parliament is a public servant for the
purpose of the 1988 Act.
Requirement for Sanction for Prosecution
In order to show that members of Parliament are outside
the purview of the 1988 Act, the learned counsel for
appellants have referred to Section 19 of the 1988 Act which
prescribes that no court shall take congnizance of an
offence punishable under Section 7, 10, 11, 13, and 15
alleged to have been committed by a public servant except
witht he previous sanction of the authority specified in
clauses (a), (b) or (c) of sub-section (1) of Section 19. It
is submitted that none of the clauses (a), (b) or (c) of
sub-section (1) of Section 19 is applicable in respect of a
Member of Parliament and that there is no authority who can
grant sanction for prosecution of a Member of Parliament
which means that a Member of Parliament does not fall within
the purview of the 1988 Act. Reliance has been placed on the
observations of Shetty J. and Verma J. (as the learned Chief
Justice then was) in K. Veeraswami v. Union of India & Ors.,
1991 (3) SCR 189, and the decision of hte Orissa High COurt
in Habibulla Khan.
The learned Attorney Genral has, on the other hand,
urged that the requriement of previous sanction under
Section 19 of the 1988 Act only imposes a limitation on the
power of the court to take cognizance under Section 190 Cr.
P.C. of the offences mentioned in sub-section (1) of Section
19 and that if a public servant is not ocovered by any of
the cluses (a), (b) and (c) of Section 19(1) and t here is
no authority who could grant sanction for his prosecution,
the limitation imposed by Section 19 on the power of the
court to take cognizance would not be applicable and it
would be open to the competent court ot take cognizance of
the offences mentioned in Section 19(1) would insisting on
the requriement of sanction. The submission is that merely
because none of the clauses (a), (b) and (c) of Section
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19(1) is applicable to a Member of Parliament, it cannot be
said that he is outside the purview of the 1988 Act. The
learned Attroney General has also urged, in the alternative,
that in view of he provisions contained in Articles 102 and
103 the President can be regarded as the authority competent
to remove a Member of Parliamen and, therefore, the can
grant the sanction for his prosecution udner Section
19(1)(c) and it cannot b e said that since there is no
authority who can grant sanction for his prosecution a
Member of Parliament is outside the purview of the 1988 Act.
The learned Attorney General has also submitted tht many of
the appellants had ceased to be members of Parliament on the
date of filing of the charge-sheet and that the offence of
criminal conspiracy under Section 120B IPC read with Section
7 and Section 13(2) read with Section 13(1)(d) of thr 1988
Act as well as the ofence under Section 12 of the 1988 Act
are not among the offences mentioned in Section 19(1) and
that no sanction was requried with regard to these offences
and that sanction ws requried only in respect of ofecnes
under Section 7, and Section 13(2) reas with Section
13(1)(d) of thd 1988 Act as against A-4 and A-15 and that in
view of sub-section (3) of Section 19 the omission of
sanction would nbot have any effect on the trial of the said
accused persons.
Section 19 of the 1988 Act provides as follows :-
<sls>
"19. Provious sanctiuon necessary
for prosecution.- (1) No court
shall take cognizance of an offence
punishable under Section 7, 10, 11,
13 and 15 alleged to have been
committed by a public sevant,
except with the previous sanction,-
a) in the case of a person who is
employed in connection with
the affairs of the Union and
is not removable form his
office save by or with the
sanction of the Central
Governnemnt, of that
Governmnt;
b) int he case of aperson who is
emplyed in connection with the
affairs of the a State and is
not emovable from his office
save by or with the sanction
of the State Government, of
that Government;
c) in the case of any other
person, of the authority
competent ot remove him from
his offcie.
2) Where for any reason whatsover
any doubt arises as to whether the
previous sanction as requried under
sub-section (1) should be given by
the Central Government or the State
Government or any other authority,
such sanction shall be given by
that Gvoernment or authority which
would have been competent to remove
the public servant from his office
at the tiem when the offence was
alleged to have b een committed.
3) Notwithstanding anything
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containedc in the Code of Criminal
Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or
orde passed by a special
Judge shall be reversed
or altered by a Court in
appela, confirmation or
revision on the ground of
the absence of, or any
error, omission or
irregularity in, hte
sanction requried under
sub-section (1), unless
in the opinion of that
court, a failure of
justicd has in fact been
occasioned thereby;
(b) no court shal stay the
proceedings under this
Act ont he ground of any
error, omissionor
irrgularily in th
esanction granted by the
authority, unless it is
satisfied tht sich error,
omissionor irregularity h
as resulted in a failure
of justice;
(c) no court shall stay the
proceedings under this
Act on any other gorund
and no court shall
exercise the powers of
revision in relation to
any interlocutory order
passed in any inquiry,
trial, appeal or other
proceedings.
4) In determining under sub-section
(3) whether the absence of, or any
error, omission or irregularity in,
such sanction has occasioned or
resulted in a failure of justice
the court shall have regard to the
fact whether the objection and
should have been raised at any
earlier stage in the proceedings.
Explanation.- For the ourposes of
this section.-
(a) error includes competency of
the authority to grant
sanction;
(b) a sanction required for
prosecution includes reference
to any requriement that the
prosecution shall be at the
instance of a specified
authority or with the
sanctionj or a specified
person or any requirement of a
similar nature."
The provisions as regards sanction were earlier
contained in Section 6 of the 1947 Act. Sub-section (1) and
2) of Section 19 substantially reproduce the provisions
contained in Section 6 of the 1947 Act. Clauses (a), (b) and
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(c) of sub-section (1) of Section 19 are in the same terms
as clauses (a), (b) and (c) of sub-section (1) of Section 6
of the 19478 Act. Sub-section (3) and (4) of Section 19 of
the 1988 Act were not contained in Section 6 of the 1947 Act
and have been inserted for the first time in Section 19 of
the 1988 Act.
In Veeraswami the question for consideration was
whether a Judge of the High Court falls within the ambit of
the 1947 Act and in support of the contention that he was
not covered by the said Act, it was submitted that for
prosecution in respect of an offence under the 1947 Act
previous sanction of an authority competent to remove the
public servant as provided under Section 6 of the 1947 Act
is imperative and that the power to remove a Judge of the
Superior Court is not vested in any single individual
authority but is vested in the two Houses of Parliament and
the President under Article 124(4) of the Constitution and
since there is no authority competent to grant sanction
under Section 6 of the 1947 Act a Judge of the Superior
Court did not fall within the ambit of the provisions of the
1947 Act. The said contention was rejected by the Court
[Verma J. dissenting]. Shetty J., who delivered the main
judgment on behalf of the majority, held that for the
purpose of Section 6 of the 1947 Act a Judge of the
Superior Court fell in clause (c) of Section 6(1) and that
the President of India is the authority competent to grant
sanction for his prosecution. The learned counsel for the
appellants have placed reliance on the following
observations in the judgement of Shetty J. wherein the
learned Judge h as construed the provisions of Section 6 of
the 1947 Act :-
"Section 6 may now be analysed.
Clause (1) of Section 6(1) covers
public servants employed in
connection with the affairs of the
Union. The prescribed authority for
giving prior sanction for such
persons would be the Central
Government. Clause (b) of Section
6(1) cover public servants in
connection with the affairs of the
State. The competent authority to
give prior sanction for prosecution
of such persons would be the State
Government. Clause (a) and (b)
would thus cover the cases of
public servants who are employed in
connection with the affairs of the
Union or State and are not
removable from their office save by
or with the sanction of the Central
Government or the State Government.
That is not the end. The section
goes further in clause (c) to cover
the remaining categories of public
servants. Clause (c) states that in
the case of any other person the
sanction would be of the authority
competent to remove him from his
office. Section 6 is thus all
embracing bringing within its fold
all the categories of public
servants as defined under Section
21 of the IPC." [p. 238]
"The provisions of clauses (a) and
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(b) of Section 6(1) of the Act
covers certain categories of public
servants and the `other ' which
means remaining categories are
brought within the scope of clause
(c)." [p. 240]
It has been pointed out that Verma J., in his dissenting
judgment, has also taken the same view when he said :-
"Clauses (a), (b) and (c) in sub-
section (1) of Section 6
exhaustively provide for the
competent authority to grant
sanction for prosecution in case of
all the public servants falling
within the purview of the Act.
Admittedly, such previous sanction
is a condition precedent for taking
cognizance for an offence
punishable under the Act; of a
public servant who is prosecuted
during his continuance in the
office. It follows that the public
servant falling within the purview
of the Act must invariably fall
within one of the three clauses in
sub-section (1) of Section 6. It
follows that the holder of an
office, even though a `public
servant' according to the
definition in the Act, who does not
fall within any of the clauses
(a), (b) or (c) of sub-section (1)
of Section 6 must be held to be
outside the purview of the Act
since this special enactment was
not enacted to cover that category
of public servants in spite of the
wide definition of `public servant'
in the Act. This is the only manner
in which these provisions of the
Act can be harmonised and given
full effect." [pp. 285, 286]
The said decision in Veeraswami was given in the
context of the definition of `public servant' as contained
in Section 21 IPC. The various clauses in Section 21 IPC
refer to persons who can be removed from the office and
keeping in view the criterion of removability from office
this Court in Veeraswami has said that clauses (a) (b) and
(c) of sub-section (1) of Section 6 of the 1947 Act cover
all the categories of public servants mentioned in Section
21 IPC. In the 1988 Act the concept of `public servant' has
been enlarged. A separate provision containing the
definition of `public servant' has been introduced in
Section 21 IPC and that contained in Section 2(c) of the
1988 Act would show that Section 21 IPC did not indlude
persons falling under sub-clauses (ix,(x), (xi) and (xii) of
Section 2(c). Sub-clauses (viii) of Section 2(c) is also
wider in amplitude than clause 12(a) of Section 21 IPC.
In Veeraswami while considering whether Parliament is
the authority which could grant sanction for prosecution of
a Judge of the Supreme Court since under Article 124(4) of
the Constitution, the address must be passed by each House
of Parliament, Shetty J. has said :-
"The grant of sanction requires
consideration of material collected
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by the investigative agency and
Parliament cannot properly consider
the meterial. Parliament is wholly
unsuitable to that work. It would
be reasonable to presume that the
legislature while enacting clause
(c) of Section 6(1) of the Act
could not have intended Parliament
to be the sanctioning authority."
[p. 244]
The enlarged definition of public servant in Section 2(c) of
the 1988 Act includes persons who are not removable by an y
single individual authority and can only be removed by a
collective body and the aforementioned observation of Shetty
J. made in the context of parliament would be applicable.
Reference, in this context, may be made to sub-clauses (ix)
and (xii) of Section 2(c). Sub-section (ix) speaks of a
person "who is the president, secretary or other office-
bearer of a registered cooperative society engaged in
agriculture, industry, trade or banking, receiving or having
received any financial aid from the Central Government or a
State Government or form any corporation established by or
under a Central, Provincial or State Act, or any authority
or body owned or controlled or aided by the Government or a
Government company as defined in Section 617 of the
Companies Act, 1956 (a of 1956)". The President, Secretary
and other office bearers of a co-operative society hold
office in accordance with the provisions of the relevant
statute governing such society and the rules and bye-laws
made thereunder. The said statute and the rules and bye-laws
may provide for an elected President, Secretary and other
office bearers who may be removable by a vote of no-
confidence by the body which has elected them. Similarly
sub-clause (xii) of Section 2(c) of the 1988 Act talks of a
person "who is an office=bearer or an employee of an
educational, scientific, social, cultural or other
institution, in whatever manner established receiving or
having received any financial assistance from the Central
Government or any State Government, or local or other
public authority". There may be an institution run by a
society through an elected Managing Committee. The office
bearer of such an institution would be the elected President
or Secretary of the Managing Committee who would be
removable only by the body which elected him. The
consideration which weighed with this Court in Veeraswami
for holding that Parliament could not be intended to be the
sanctioning authority under Section 6(1)(c) of the 1947 Act
would equally apply to the general body of members of a co-
operative society under clause (ix) and to the generally
body of members of a society running an institution referred
to in clause (xii) and it can be said that the said bodies
could not have been intended by Parliament to be the
sanctioning authority for the purpose of Section 19(1)(c) of
the 1988 Act.
This would mean that the definition of `public
servant' in Section 2(c) of the 1988 Act includes persons
who are public servants under that provision though the
criterion of removability does not apply to them and there
is no single individual authority which is competent to
grant sanction for their prosecution under Section 19 of the
1988 Act. In respect of a Member of Parliament the
Constitution does not confer on any particular authority the
power to remove him. Clause (1) of Article 103 lays down
that if any question arises as to whether a member of either
House of Parliament has become subject to any of the
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disqualifications mentioned in clause (1) of Article 102,
the question shall be referred to the decision of the
President and his decision shall be final. The said function
of the President is in the nature of an adjudicatory
function which is to be exercised in the event of a dispute
giving rise to the question whether a Member o either House
of Parliament has become subject to any of the
disqualification mentioned in clause (1) of Article 102
being raised. If the President holds that the member has
become subject to a disqualifications mentioned in clause
(1) of Article 102, the member would be treated to have
ceased to be member on the d ate when he became subject to
such disqualification. If it is not disputed that a member
has incurred a disqualification mentioned in clause (1) of
Article 102, the matter does not go to the President and the
member ceases to be a member on the date when he incurred
the disqualification. The power conferred under Article
103(1) cannot, therefore, regarded as a power of removal of
a Member of Parliament. Similarly, under the Tenth Schedule
to the Constitution a power has been conferred on the
Chairman of the Rajya/ the Speaker of the Lok Sabha to
decided the question as to whether a Member of Rajya
Sabha/Lok Sabha has become disqualified for being a member
on the ground of defection. The said decision of the
Chairman of the Rajha Sabha and the Speaker of the Lok Sabha
that a Member has incurred disqualification on the ground to
defection may result in such Member ceasing to be a Member
but it would not mean that the Chairman of the Rajha
Sabha/Speaker of the Lok Sabha is the authority competent to
remove a Member of Rajya Sabha/Lok Sabha. It is no doubt
true that the House in exercise of its power of contempt can
pass a resolution for expulsion of a Member who is found
guilty of breach of privilege and acceptance of bribe by a
Member in connection with the business of the House has the
power to remove a Member who is found to have indulged in
bribery and corruption. But in view of the decision in
Veeraswami wherein Shetty J. has said that legislature while
enacting clause (c) of Section 6 of the 1947 Act could not
have intended Parliament to be the sanctioning authority,
the House cannot be regarded as the authority competent to
grant sanction under Section 19(1)(c) of the 1988 Act. On
that view of the matte it must be held that there is no
authority who can remove a Member of Parliament and who
would be competent under clauses (a), (b) or (c) of Section
19(1) of the 1988 Act to grant sanction for his prosecution.
This does not, however, lead to the conclusion that he
cannot be treated as `public servant' under Section
2(c)(viii) of the 1988 Act if, on a proper interpretation of
the said revision he is found to be public servant. Since on
an interpretation of the provisions of Section 2(c)(viii) of
the 1988 Act we have held that a Member of Parliament is a
public servant, a Member of Parliament has to be treated as
public servant of the purpose of the 1988 Act even though
there is no authority who can grant sanction for this
prosecution under Section 19(1) of the 1988 Act.
It is them urged that if it is found that there is no
authority who is competent to remove a Member of Parliament
and to grant sanction for his prosecution under Section
19(1) of the 1988 Act then a Member of Parliament would fall
outside the purview of the Act because in view of the
provisions of Section 19 sanction is imperative for
prosecution i respect of an offence under the 1988 Act. In
support of this contention reliance has been placed on the
following observations in the dissenting judgment of Verma
J. in Veeraswami :-
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"The grant of previous sanction
under Section 6 being a condition
precedent for the prosecution of a
public servant covered by the Act,
it must follow that the holder of
an office who may be a public
servant according to the wide
definition of the expression in the
Act but whose category for the
grant of sanction for prosecution
is not envisaged by Section 6 of
the Act, is outside the purview of
the Act, not intended to be covered
by the Act. This is the only manner
in which a harmonious constitution
of the provisions of the Act can be
made for the purpose of achieving
the object of that enactment." [p.
286]
With due respect we find it difficult to agree with
these observations. In taking this view the learned Judge
has construed Section 6 of the 1947 Act, which like Section
193 and 105 to 197 Cr. P.C. was a limitation on the power of
the Court to take cognizance and thereby assume jurisdiction
over a matter, as a right conferred on a public servant o
mean "no public servant shall be prosecuted without previous
sanction". This aspect has been considered by this Court in
S.A. Venkataraman v. The State, (1985) SCR 1037. In that
case the appellant, who was a public servant, had been
dismissed after departmental enquiry and thereafter he was
charged with having committed the offence of criminal
misconduct under Section 5(1) of the 1947 Act and he was
convicted. No sanction under Section 6 was produced before
the trial court. It was contended before this Court that the
court could not take cognizance of the offence without there
being a proper sanction to prosecute. The said contention
was rejected on the view that sanction was not necessary for
the prosecution of the appellant as he was not a public
servant at the time of taking cognizance of the offence.
After referring to the provisions contained in Section 190
Cr. P.C. which confers a general power on a criminal court
to take cognizance of offences and, after holding that
Section 6 is in the nature of a limitation on the said
power, it was observed :-
"In our opinion, if a general
power to take cognizance of an
offence is vested in a court, any
prohibition to the exercise of that
power, by any provision of law,
must be confined to the terms of
the prohibition. In enacting a law
prohibiting t he taking of a
cognizance of an offence by a
court, unless certain conditions
were complied with, the legislature
did not purport to condone the
offence. It was primarily concerned
to see that prosecution for
offences in cases covered by the
prohibition shall not commence
without complying with the
conditions contained therein, such
as a previous sanction of a
competent authority in the case of
a public servant, and in other
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cases with the consent of the
authority or the party interested
in the prosecution or aggrieved by
the offence." [pp. 1043, 1044]
"When the provisions of s. 6 of the
Act are examined it is manifest
that two conditions must be
fulfilled before its provisions
become applicable. One is that the
offences mentioned therein must be
committed by a public servant and
the other is that that person is
employed in connection with the
affairs of the Union or a State and
is not removable from his office
save by or with the sanction of the
Central Government or the State
Government or is a public servant
who is removable from his office by
any other competent authority.
Both these conditions must be
present to prevent a court from
taking cognizance of an offence
mentioned in the section without
the previous sanction of the
Central Government or the State
Government or the authority
competent to remove the public
servant from his office. If either
of these conditions is lacking, the
essential requirements of the
section are wanting and t he
provisions of the section do not
stand in the way of a court taking
cognizance without previous
sanction." [p. 1045]
This means that when there is an authority competent to
remove a public servant and to grant sanction for his
prosecution under Section 19(1) of the 1988 Act the
requirement of sanction preludes a court form taking
cognizance of the offences mentioned in Section 19(1)
against him in the absence of such sanction, but if there is
no authority competent to remove a public servant and to
grant sanction for his prosecution under Section 19(1) there
is no limitation on the power of the court to take
cognizance under Section 190 Cr. P.C. of the offences
mentioned in Section 19(1) of the 1988 Act. The requirement
of sanction under Section 19(1) is intended as a safeguard
against criminal prosecution of a public servant on the
basis of malicious or frivolous allegations by interested
persons. The object underlying the said requirement is not
to condone the commission of an offence by a public servant.
The inapplicability of the provisions of Section 19(1) to a
public servant would only mean that the intended safeguard
was not intended to be made available to him. The rigour of
the prohibition contained in sub-section (1) is now reduced
by sub-section (#) of Section 19 because under clause (a) of
sub-section (3) it is provided that no finding, sentence or
order passed by a special Judge shall be reversed or altered
by a ******** confirmation or revision on the ground to
absence of, ************* This would show that the
rquirement of sanction under sub-section (1) of Section 19
is a matter relating to the procedure and the absence of the
sanction does not go to the root of the jurisdiction of the
court. It must, therefore, be held that merely because there
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is no authority which is competent to remove a public
servant and to grant sanction for his prosecution under
Section 19(1) it cannot be said that Member of Parliament
ins outside the Purview of the 1988 Act.
In the absence of requirement of previous sanction for
initiating proceedings in a court of law against a Member of
Parliament in respect of an offence mentioned in Section
19(1) of the 1988 Act t he possibility of a Member of
Parliament being subjected to criminal prosecution on the
basis of malicious or frivolous allegations made by
interested persons cannot be excluded. It is hoped that
Parliament will provide for an adequate safeguard in that
regard by making suitable amendment in the 1988 Act. But
till such safeguard is provided, it appears appropriate to
us that protection from being subjected to criminal
prosecution on the basis of malicious or frivolous
allegations should be available to Members of Parliament.
In Veeraswami this Court, while considering the
question regarding the applicability of the provisions of
the 1947 Act to Judges of Superior Courts, has held that
Judge of Superior Courts fall within the purview of the said
Act and that the President is the authority competent to
grant sanction for their prosecution. But keeping in view
the need for preserving the independence of the judiciary
and the fact that the Chief Justice of India, being the
head of the judiciary, is primarily concerned with the
integrity and impartiality of the judiciary, the Court has
directed that the Chief Justice of India should be consulted
at the stage of examining the question of g ranting sanction
for prosecution. In relation to Member of Rajya Sabha/ Lok
Sabha the Chairman of the Rajya Sabha/ Speaker of the Lok
Sabha holds a position which is not very different from that
held by the Chief Justice of India in relation to members of
the superior judiciary. In the United Kingdom the Speaker of
the House of Commons is regarded as the representative of
the House itself in its powers, proceedings and dignity and
is treated as a symbol of the powers and priviges of the
House. [See : May's Parliamentary Practice 21st Edn., pp
170. 190]. The **** position in India. In the words of
Pandit Jawahar Lal Nahru : "The Speaker representative
House. He represents the dignity of the House, the freedom
of the House.." [See : HQP Ocbrts Vol. IX (1954). CC 3447-
48]. In Kihoto Hollophen v. Zachillhu & Ors. 1992 Supp. (2)
SCC 651, this Court has said : "The Speakers/ Chairman hold
a pivotal position in the scheme of Parliamentary democracy
and are guardians of the rights and privileges of the
House." The Chairman of the Rajya Sabha/Speaker of the Lok
Sabha by virtue of the position held by them are entrusted
with the task of preserving the independence of the Member
of the House. In order that Members of Parliament may not be
subjected to criminal prosecution on the basis of frivolous
or malicious allegations at the hands of interested persons,
the prosecuting agency, before filing a charge-sheet in
respect of an offence punishable under Section 7, 10, 11, 13
and 15 of the 1988 Act against a Member of Parliament in a
criminal court, shall obtain the permission of the Chairman
of the Rajya Sabha/Speaker of the Lok Sabha, as the case may
be.
On the basis of the aforsaid discussion we arrive at
the following cunclusion :-
1. A Member of Parliament does not enjoy immunity under
Article 105(1) or under Article 105(3) of the
Constitution from being prosecuted before a criminal
court for an offence involving offer or acceptance of
bribe for the purpose of speaking or by giving his vote
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in Parliament or in any committees thereof.
2. A member of Parliament is a public servant under
Section 2 (c) of the Prevention of Corruption Act,
1988.
3. Since there is no authority competent to remove a
Member of Parliament and to grant sanction for his
prosecution under Section 19(1) of the Prevention of
Corruption Act, 1988, the court can take cognizance of
the offences mentioned in Section 19(1) in the absence
of sanction but till provision is made by Parliament in
that regard by suitable amendment in the law, the
prosecuting agency, before filing a charge-sheet in
respect of an offence punishable under Section 7, 10,
11, 13, and 15 of the 1988 Act against a Member of
Parliament in a criminal court, shall obtain the
permission of the Chairman of the Rajya Sabha/Speaker
of the Lok Sabha, as the case may be.
BHARUCHA,J.
On 26th July, 1993, a motion of no-confidence was moved
in the Lok Sabha against the minority government of P.V.
Narasimha Rao. The support of 14 member was needed to have
the no-confidence motion defeated. On 28th July, 1993, the
no-confidence motion was lost, 251 members having voted in
support and 265 against. Suraj Mandal, Shibu Soren, Simon
Marandi and Shailender Mahto, members of the Lok Sabha
owing allegiance to the Jharkhand Mukti Morcha (the JMM),
and Ram Lakhan Singh Yadav, Roshan Lal, Anadicharan Das,
Abhay Pratap Singh and Haji Gulam Mohammed, members of the
Lok Sabha owing allegiance to the Janata Dal, Ajit Singh
group(the J.D.,A.S.), voted against the no-confidence
motion. Ajit Singh, a member of the Lok Sabha owing
allegiance to the J.D,A.S., abstained from voting thereon.
It is the respondents case that the abovenamed members
agreed to and did receive bribes, to the giving of which
P.V. Narasimha Rao, M.P. and Prime Minister, Satish Sharma,
M.P. and Minister, Buta Singh, M.P. V.Rajeswar Rao, M.P.,
N.M. Ravanna, Ram Linga Reddy, M.L.A., M.Veerappa Moily,
M.L.A. and Chief Minister, State of Karnataka,
D.K.Adikeshavulu, M. Thimmogowda and Bhajan Lal, M.L.A. And
Chief Minister, State of Haryana, were parties, to vote
against the no-confidence motion. A prosecution being
launched against the aforesaid alleged bribe givers and
bribe takers subsequent to the vote upon the no-confidence
motion, cognizance was taken by the Special Judge, Delhi.
The Charge framed against P.V. Narasimha Rao reads thus:
"That you P.V. Narasimha Rao
between July and August, 1993 at
Delhi and Bangalore were party to a
criminal conspiracy and agreed to
or entered into an agreement with
your co-accused Capt. Satish
Sharma, Buta Singh, V.Rajeshwara
rao, HM Revanna, Ramlinga Reddy, M.
Veerappa Moiley, D.K. Audi
Keshvalu, M. Thimmegowda, Bhajan
Lal, JMM (Jharkhand Mukti Morcha)
MPs Suraj Mandal, Shibu Soren,
Simon Marandi, Shailendra Mahto
(approver, since granted pardon on
8.4.97), Janta Dal (Ajit Group) MPs
Ajit Singh Ram Lakhan Singh Yadav,
Ram Sharan Yadav, Roshan Lal, Anadi
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Chran Das, Abhay Pratap Singh ,
Haji Ghulam Mohd, Khan and late
G.C. Munda to defeat the no-
confidence motion moved on 26.7.93
against the then Congress (I) Govt.
headed by you by illegal means
viz. To offer or cause to offer and
pay gratification other than the
legal remuneration to your co-
accused persons namely J.M.M. and
Janta Dal (A) MPs named above as a
motive or reward for their helping
in defeating the said no confidence
motion moved by the opposition
parties and in pursuance of the
said agreement you paid or caused
to pay several lacs of rupees to
the above referred JMM and Janta
Dal (A) MPs who obtained or
attempted to obtain the same in the
manner stated above and thereby you
have committed an offence
punishable u/S 120 B IPC r/w
Sections 7,12 and 13(2) r/w 13 (2)
r/w 13(i)(d) of the PC Act 1988 and
within my cognizance.
Secondly you P.V. Narasimha
Rao in pursuance of the aforesaid
criminal conspiracy during the
aforesaid period and at the
aforesaid places abetted the
commission of offence punishable
u/S 7 of P.C. Act by above referred
JMM and Janta Dal (A) MPs and
thereby you have committed an
offence punishable u/S 12 of the
P.C. Act and within my cognizance."
Similarly charges were framed against the alleged bribe
givers.
The charge framed against Suraj Mandal of the J.M.M.
reads thus:
"Firstly you between July and
August, 1993 at Delhi and Bangalore
were party to a criminal conspiracy
and agreed to or enter into an
agreement with your co-accused P.V.
Narasimha Rao, Capt. Satish Sharma,
Buta Singh, V.Rajeshwara Rao, H.M.
Revanna, Ramlinga Reddy, M.Veerappa
Moiley, D.K. Audi Keshvalu. M,
Thimmegowda, Bhajan Lal, JMM
(Jharkhand Mukti MOrcha) MPs Shibu
Soren. Simon Marandi, Shailendra
Mehto (Approver, since granted
pardon on 8.4.97), Janta Dal (Ajit
Group) MPs, Ajit Singh, Ram Lakhan
Singh Yadav. Roshan Lal, Anadi
Chran Dass, Abhey Partap Singh,
Haji Ghulam Mohd. Khan and late
G.C. Munda to defeat the no
confidence motion moved against the
then Congress (I) Government headed
by accused Shri P.V.Narasimha Rao
on 26.793 by illegal means viz. To
obtain or agree to obtain
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gratification other than legal
remunerations from your above named
accused persons other than JMM and
Janta Dal (A) MPs as a motive or
reward for defeating the no
confidence motion and in pursuance
thereof above named accused persons
other than JMM and Janta Dal (A)
passed on several lacs of rupees
to you or your other co-accused
namely JMM and Janta Dal (A) MPs
which amounts were persons and
thereby you have committed an
offence punishable u/s 120B r/w
Sections 7,12,13(2) r/w section
134(i)(d) of the P.C. Act and
within my cognizance.
Secondly, that you being
a public servant while functioning
in your capacity of Member of
Parliament (10th Lok Sabha) during
the aforesaid period and at the
aforesaid places in pursuance of
the aforesaid conspiracy demanded
and accepted from your co-accused
other than JMM & JD(A) MPs
mentioned above a sum of Rs.280
lacs for yourself and other JMM MPs
named above other than your legal
remuneration as a motive or reward
for defeating above referred no
confidence motion moved against the
then Govt. of Congress (I) headed
by your co-accused Shri P.V.
Narasimha Rao and thereby you have
committed an offence punishable u/S
7 the P.C. Act and within my
cognizance.
Thirdly, you during the
aforesaid period and at the
aforesaid places being a public
servant while functioning in your
aforesaid capacity of Member of
Parliament by corrupt or illegal
means and by abusing your position
as a said public servant obtained
for yourself or your other co-
accused i.e. JMM MPs named above
the pecuniary advantage to the
extent of Rs.280 lacs and thereby
committed an offence punishable u/S
13(2) read with Section 13(i)(d) of
P.C. Act and within my cognizance.
Fourthly, that you during the
pendency of investigation of
present case while writ petition
No.789/96 was pending disposal in
Hon'ble High Court between February
to April, 1996 at Delhi, Ranchi and
other places intentionally caused
to bring false evidence into
existence by fabricating or causing
to fabricate the documents or
records i. e. books of accounts,
proceeding books, etc. of JMM
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Central Office. Ranchi for the
purpose of being used in any stage
of judicial proceedings and thereby
committed an offence u/S 193 IPC
and within my cognizance.
Similar charges were framed against the other alleged bribe
takers of the J.M.M Similar charges were also framed against
the alleged bribe takers of the J.D., A.S., except that
there was no charge against them under Section 193 of the
Indian Penal Code. Shailender Mahto of the J.M.M., it may
be mentioned, later turned approver and was pardoned.
The persons sought to be charged as aforesaid filed
petitions in the High Court at Delhi Seeking to quash the
charges. By the judgment and order which is under challenge,
the High Court dismissed the petitions. Hence, these
appeals. The appeals were heard by a bench of three learned
judges and then referred to a Constitution Bench, broadly
put, is that, by virtue of the provisions of Article 105,
they are immune from the prosecution and that, in any event,
they cannot be prosecuted under the Prevention of Corruption
Act, 1998.
Privilege.
Article 105 of the Constitution reads thus:
"105. Powers, privileges, etc., of
the House of Parliament and of the
members and committees thereof. -
(1) Subject to the provisions of
this Constitution and to the rules
and standing order regulating the
procedure of Parliament, there
shall be freedom of speech in
Parliament.
(2) 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, and no person shall be so
liable in respect of the
publication by or under the
authority of either House of
Parliament of any report, papers,
votes or proceedings.
(3) In other respects, the powers,
privileges and immunities of each
House of Parliament, and of the
members and the committees of each
House. shall be such as may from
time to time be defined by
Parliament by law, and until so
defined shall be those of that
House and of its members and
committees immediately before the
coming into force of section 15 of
the Constitution (Forty-fourth
Amendment ) Act, 1978.
(4) The provisions of clauses (1),
(2) and (3) shall apply in relation
to persons who by virtue of this
constitution to take part in the
proceedings of, a House of
Parliament or any committee thereof
as they apply in relation to
members of the Parliament."
Mr. P.P.. Rao addressed us on behalf of P.V. Narasimha
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Rao, Mr. D.D. Thakur on behalf of Satish Sharma, Mr. Kapil
Sibal on behalf of Bhajan Lal and Dr.Surat Singh on behalf
of some of the J.D., A.S. M.Ps. All of them relied upon sub
article (2) OF Article 105. Only Mr. P.P. Rao, learned
counsel for P.V. Narasimha Rao, relied, in addition, upon
sub article(3) thereof.
Article 105(2).
By reason of Sub-article (1) of Article 105, members of
Parliament enjoy freedom of speech subject only to the
provisions of the Constitution and the rules and standing
orders regulating the procedure of Parliament. That express
provision is made for freedom of speech in Parliament in
sub-article (1) of article 105 suggests that this freedom
is independent of the freedom of speech conferred by Article
19 and unrestricted by the exceptions contained therein.
This is recognition of the fact that members need to be free
of all constraints in the matter of what they say in
Parliament if they are effectively to represent their
constituencies in its deliberations. Sub-article (2) of
Article 105 puts negatively what sub-article (1) states
affirmatively.
Both sub-articles must be read together to deter mine their
content. By reason of the first part of sub-article (2) no
member is answerable in a court of law or any similar
tribunal for what he has said in Parliament. This again is
recognition of the fact that a member needs the freedom to
say what he thinks is right in Parliament undeterred by the
fear of being proceeded against. A vote, whether cast by
voice or gesture or the aid of a machine, is treated as an
extension of speech or a substitute for speech and is
given the protection that the spoken word has. Two comments
need to be made in regard to the plain language of the first
part of sub-article (2). First, what has protection is what
has been said and a vote that has been cast, not something
that might have been said but was not, or a vote that might
have been cast but was not. Secondly, the protection is
broad, being "in respect of". It is so given to secure the
freedom of speech in Parliament that sub-article (1)
provides for. It is necessary, given the role members of
Parliament must perform . The protection is absolute against
court proceedings that have a nexus with what has been said,
or a vote that has been cast in Parliament. The second part
of sub-article (2) provides that no person shall be liable
to any proceedings in any court in respect of the
publication of any report, papers, votes or proceedings if
the publication is by or under the authority of either
House of Parliament. A person who publishes a report or
papers or votes or proceedings by or under the authority of
Parliament is thereby given protection in the same broad
terms against liability to proceedings in any court
connected with such publication. The constitution having
dealt with the all - important privilege of members of
Parliament to speak and vote therein as they deem fir, freed
of the fear of attracting legal proceedings concerning what
they say or how they vote, provides for other powers,
privileges and immunities is sub-article (3). Till defined
by Parliament by enactment, they are such as were enjoyed
before the Constitution came into force; that is to say,
they are such as were enjoyed by the House of Commons just
before 26th January, 1950. For it to be established that any
power, privilege or immunity exists under sub-article (3),
it must be shown that power, privilege or immunity had been
recognised as inhering in the House of Commons at the
commencement of the Constitution. So important was the
freedom to speak and vote in Parliament thought to be that
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it was expressly provided for, not left to be gathered, as
other powers, privileges and immunities were, from the House
of Commons. In so far as the immunity that attaches to what
is spoken in Parliament and to a vote given therein is
concerned, provision is made in sub-article (2); it is only
in other respects that sub-article (3) applies. For the sake
of completeness, though we are not here concerned with it,
we must add that sub-article (4) gives the protection of the
Sub-articles that preceded it to all who have the right to
address the House, for example, the Attorney General.
The provisions of Article 105 and of Article 194, which
is in the same terms but deals with the privileges of
Legislative Assemblies, have been examined by this Court in
the past. In the case of Pandit M.S.M. Sharma v.Shri Sri
Krishna Sinha And Others, [1959] Supp.1 S.C.R. 806, a
portion of the speech made by a member of a Legislative
Assembly had been expunged by the orders of the Speaker.
Nonetheless, the speech was published in its entirety in a
newspaper of which the petitioner was the editor. He was
called upon to show cause why action should not be taken
against him for breach of privilege of the Legislative
Assembly and he challenged the notice by a petition under
Article 32. S.R. Das, C.J., speaking for the majority on the
Constitution Bench which heard the writ petition, observed
that Parliamentary privilege in England was defined in May's
Parliamentary practice as "the sum of the peculiar rights
enjoyed by each House collectively as a constituent part of
the High Court of Parliament, and by members of each House
individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies
individuals". The privileges of the House of Commons, as
distinct from those of the House of Lords, were defined as
"the sum of the fundamental rights of the House and of its
individual members as against the prerogatives of the Crown,
the authority of the ordinary courts of law and the special
rights of the House of Lords". The privileges of the House
of Commons included the freedom of speech, which had been
claimed in 1554. This comprised the right of the House to
provide for the due composition of its own body, the right
to regulate its own proceedings, the right to exclude
stranger, the right to prohibit publication of its debates
and the right to enforce observation of its privileges by
fine, imprisonment and expulsion. For deliberative bodies
like the House of Lords and Commons, this Court said,
"freedom of speech is of the utmost importance. A full and
free debate is of the essence of Parliamentary democracy."
The argument that the whole of article 194 was subject to
Article 19(1)(a) overlooked the provisions of article
194(2). The right conferred on a citizen under Article
19(1)(a) could be restricted by a law which fell within sub-
article 2 of that Article and he could be made liable in a
court of law for breach of such law, but Article 194(2)
categorically laid down that no member of the legislature
was to be made liable to any proceedings in any court in
respect of anything said or any vote given by him in the
Legislature or in committees thereof and that no person
would be liable in respect of the publication by or under
the authority of the House of such a Legislature of any
report, paper or proceedings. The provisions of Article
194(2), therefore, indicated that the freedom of speech
referred to in sub-article (1) thereof was different from
the freedom of speech and expression guaranteed under
Article 19(1)(a) and could not be cut down in any way by any
law contemplated by article 19(2). A law made by Parliament
in pursuance of the earlier part of Article 105(3) or by a
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State Legislature in pursuance of the earlier part of
Article 194(3) was not law made in exercise of constituent
power but law made in exercise of ordinary legislative power
under Article 246 read with the relevant entries.
Consequently, if such a law took away or abridged any of the
fundamental rights, it would contravene the peremptory
provisions of Article 13(2) and would be void to the extent
of such contravention. It might well be that that was reason
why Parliament and the State Legislatures had not made laws
defining their powers, privileges or immunities conferred by
the latter part of Articles 105 and 194 were repugnant to
the fundamental rights, they would be void to the extent of
such repugnancy. It could not be overlooked that the
provisions of Articles 105(3) and 194(3) were constitutional
law and not ordinary law made by Parliament or the State
Legislatures and therefore, they were as supreme as the
provisions of part II of the Constitution. Further, quite
conceivably, the Constitution makers, not knowing what
powers, privileges and immunities Parliament
or the State Legislatures might claim, though fir not to
take any risk and made such laws subject to the provisions
of Article 13; but that, knowing and being satisfied with
the reasonableness of the powers, privileges and immunities
of the House of Commons at the commencement of the
Constitution, they did not, in their wisdom, think fit to
make such powers, privileges and immunities subject to the
fundamental right conferred by Article 19(1)(a).
The case of Dr. Satish Chandra Ghosh V.Hari Sadhan
Mukherjee, [1961] 3 S.C.R. 486, dealt with an appellant who
was a member of a Legislative Assembly. He had given notice
of his intention to put certain questions in the Assembly.
The questions being disallowed by the Speaker, he had
published them in a journal in his constituency. The first
respondent, whose conduct was the subject-matter of the
questions, filed a complaint under the Indian Penal Code
against the appellant and the printer and publisher of the
journal. The appellant pleaded privilege and immunity under
Article 194 of the Constitution as a bar to criminal
prosecution. The claim of absolute privilege was disallowed
by this Court. It was said, with reference to the law in
England in respect of the privileges and immunities of the
House of Commons, that there was no absolute privilege
attaching to the publication of extracts from proceedings in
the House. So far as a member of the House of Commons was
concerned, he had an absolute privilege in respect of what
he had spoken within the four walls of the House, but there
was only a qualified privilege in his favour even in respect
of what he had himself said in the House if he caused the
same to be published in the public press. The legal
position, which was undisputed, was that unless the
appellant could make out an absolute privilege in his favour
in respect of the publication which was the subject-matter
of the charge, the prosecution against him could not be
quashed. He having no such absolute privilege, it was held
that "he must take his trial and enter upon his defence,
such as he may have."
Special Reference No.1 of 1964,[1965] 1 S.C.R. 412
known more commonly as Keshav Singh's case or the Privileges
case, deals extensively with the scope of the privileges of
legislative bodies. The Presidential Reference was made in
the following circumstances: The Legislative Assembly of the
State of Uttar Pradesh committed one Keshav Singh, not one
of its members, to prison for contempt. The warrant it
issued was a general warrant, in that it did not set out the
facts which had been found to be contumacious. Keshav Singh
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moved a petition under Article 226 challenging his committal
and he prayed for bail. Two learned judges of the Lucknow
Bench of the High Court ordered that Keshav Singh be
released on bail pending the decision on the writ petition.
The Legislative Assembly passed a resolution requiring the
production in custody before it of Keshav Singh, the
advocate who had appeared for him and the two judges who has
granted him bail. The judges and the advocate filed writ
petitions before the High Court at Allahabad. A Full Bench
of the High Court admitted their petitions and ordered the
stay of the execution of the Assembly's resolution. The
Legislative Assembly modified its earlier resolution so that
the two judges were now asked to appear before the House and
offer an explanation. The President thereupon made the
Special Reference. Briefly put, the questions he asked were
: whether the Lucknow Bench could have entertained Keshav
Singh's writ petition and released him on bail; whether the
judges who entertained the petition and granted bail and
Keshav Singh and his advocate had committed contempt of the
Assembly; whether the Assembly was competent to require the
production of the judges and the advocate before it in
custody or to call for their explanation; whether the Full
Bench of the High Court have entertained the writ petitions
of the two judges and the advocate and could have stayed the
implementation of the resolution of the Assembly; and
whether a judge who entered or dealt with a petition
challenging any order of a Legislature imposing penalty or
issuing process against the petitioner for its contempt or
for infringement of its privileges and immunities committed
contempt of the Legislature and whether the Legislature was
competent to take proceedings against the judge in the
exercise of its powers, privileges and immunities. The
adjectival clause "regulating the procedure of the
Legislature" in Article 194(1) governed, it was held, both
the proceeding clauses relating to "the provisions of the
Constitution" and "the rules and standing orders."
Therefore, Article 194(1) conferred on legislators
specifically the right of freedom of speech subject to the
limitation prescribed by its first part. By making this sub-
article subject only to the specified provisions of the
Constitution, the Constitution-makers wanted to make it
clear that they thought it necessary to confer on the
legislators freedom of speech separately and, in a sense,
independently of Article 19(1)(a). It was legitimate to
conclude that Article 19(1)(a) was not one of the
provisions of the Constitution which controlled the first
part of Article 194(1). Having conferred freedom of speech
on the legislators, Article 194(2) emphasized the fact that
the freedom was intended to be absolute and unfettered.
Similar freedom was guaranteed to the legislators in respect
of the votes they might give in the legislature or any
committee thereof. "In other words". this Court said, "even
if a legislator exercises his right of freedom of speech in
violation, say, of Article
, he would not be liable for any action in any court.
Similarly, if the legislator by his speech or vote is
alleged to have violated any of the fundamental rights
guaranteed by Part III of the Constitution in the
Legislative Assembly, he would not be answerable for the
said contravention in any court. If the impugned speech
amounts o libel or becomes actionable or indictable under
any other provision of the law, immunity has been conferred
on him from any action in any court by this clause .... ....
.... It is plain that the Constitution-makers attached so
much importance to the necessity of absolute freedom in
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debates within the legislative chambers that they thought it
necessary to confer complete immunity on the legislators
from any action in any court in respect of their speeches in
the legislative chambers in the wide terms prescribed by
clause (2). Thus, clause (1) confers freedom of speech on
the legislators within the legislative chambers and clause
(2) makes it plain that the freedom is literally absolute
and unfettered." Referring to Article 194(3), this Court
said that it was well-known that out of a large number of
privileges and powers which the House of Commons claimed
during the days of its bitter struggle for recognition, some
were given up in course of time and some faded out by
desuetude. Accordingly, in every case where a power was
claimed, it was necessary to enquire whether it was an
existing power at the relevant time. It had also to appear
that the power was not only claimed by the House of Commons
"but was recognised by the English courts. It would
obviously be idle to contend that if a particular power
which is claimed by the House was claimed by the House of
Commons but was not recognised by the English courts, it
would still be upheld under the latter part of clause (3)
only on the ground that it was in fact claimed by the House
of Commons." In India, this Court said, the dominant
characteristic of the British Constitution could not be
claimed. The supremacy of the Constitution was protected by
an independent judicial body which was the interpreter of
the scheme of distribution of powers. It was difficult for
this Court to accept the argument that the result of the
provisions contained in the latter part of Article 194(3)
was intended to be to confer on the State Legislatures in
India the status of a superior Court of Record. It was
essential to bear in mind the fact that the status of a
superior Court of Record which was accorded to the House of
Commons was based on historical facts. It was a fact of
English history that Parliament had been discharging
judicial functions and the House of Lords still continued to
be the highest court of law in the country. The Legislative
Assemblies in India never discharged any judicial functions
and their historical and constitutional background did not
support the claim that they could be regarded as Courts of
Record in any sense. The very basis on which English courts
agreed to treat a general warrant issued by the House of
Commons the footing that it was a warrant issued by a
superior Court of Record was absent in the case of a general
warrant issued by a State Legislature in India.
In the case of T.K.Jain v. N.S. Reddy [1971]1 S.C.R.
612, it was contended that the immunity granted by Article
105(2) was with reference to the business of Parliament and
not in regard to something which was something utterly
irrelevant. This Court said:
"The article means what it says in language which could
not be plainer. The article confers immunity inter alia in
respect of anything said ....... in Parliament. The word
"anything is of the widest import and is equivalent to
'everything'. The only limitation arises from the words 'in
Parliament' which means during the sitting of Parliament and
in the course of the business of Parliament. We are
concerned only with speeches in Lok Sabha. Once it was
proved that Parliament was sitting and its business was
being transacted, anything said during the course of that
business was immune from proceedings in any court. This
immunity is not only complete but is as it should be. It is
of the essence of parliamentary system of Government that
people's representatives should be free to express
themselves without fear of legal consequences. What they say
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is only subject to the discipline of the rules of
Parliament, the good sense of the members and the control of
proceedings by the Speaker. The courts have no say in the
matter and should really have none."
The last of the cases to which reference need be made
is State of Karnataka v. Union of India & Another, [1978] 2
S.C.R. 1. It was there held that the Constitution vested
only legislative power in Parliament and in the State
Legislatures. A House of Parliament or State Legislature
could not try anyone or any case directly, as a Court of
Justice could. It could proceed quasi-judicially in cases of
contempts of its authority and take up motions concerning
its privileges and immunities because, in doing so, it
sought removal of obstructions to the due performance of its
legislative functions. If any question of jurisdiction
arose, it had to be decided by the courts in appropriate
proceedings. Beg, J. added, "For example, the jurisdiction
to try a criminal offence, such as murder, committed even
within a house vests in ordinary criminal courts and not in
a House of Parliament or in a State Legislature".
In Tolaram Relummal and anr. vs. The State of Bombay,
1995 (1) S.C.R. 158, this Court construed the words "in
respect of" occurring in Section 18(1) of the Bombay Rent
Restriction Act, 1947, the relevant portion of which read
thus:
"If any landlord either himself or
through any person acting or
purporting to act on his
behalf........receives any fine,
premium or other like sum or
deposit or any consideration, other
than the standard rent..........in
respect of the grant, renewal or
continuance of a lease of any
premises........such landlord or
person shall be punished.......".
The High Court had observed that the expression "in respect
of" was very comprehensive but this Court took the view that
it had laid undue emphasis thereon. This Court said, "Giving
the words "in respect of" their widest meaning, viz,
"relating to" or "with reference to", it is plain that this
relationship must be predicated of the grant, renewal or
continuance of a lease, and unless a lease comes into
existence simultaneously or near about the time that the
money is received, it cannot be said that the receipt was
"in respect of" the grant of a lease.............It is
difficult to hold that any relationship of landlord and
tenant comes into existence on the execution of an agreement
executory in nature or that the expression "premium" can be
appositely used in connection with the receipt of money on
the occasion of the execution of such an agreement. It may
well be that if a lease actually comes into existence then
any receipt of money which has a nexus with that lease may
fall within the mischief of section 18(1), but it is
unnecessary to express any final opinion on the question as
in the present case admittedly no lease ever came into
existence and the relationship of landlord and tenant was
never created between the parties.:"
The learned Attorney General submitted that the words
"in respect of" had not always received a board meaning,
and he cited the judgment of this Court in State of Madras
vs. M/s. Swastik Tobacco Factory, Vedaranyam, 1966 (3)
S.C.R. 79. A provision of the Madras General Sales Tax
(Turnover and Assessment) Rules, 1939, which stated that,
"the excise duty, if any, paid by the dealer to the Central
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Government in respect of the goods sold by him,...." would
be deducted from the gross turnover of a dealer for the
purposes of determining the net turnover, was under
consideration. The Court noted that the words "in respect
of" had been considered by the House of Lords in Inland
Revenue Commissioners vs. Courts & Co., [1963] 2 All.
E.R.722, and it had observed that "the phrase denoted some
imprecise kind of nexus between the property and the estate
duty".In Asher v. Seaford Court Estates Ltd., L.R. [1950]
A.C. 508, the House of Lords had held that the expression
"in respect of" in the Increase of Rent and Mortgage
Interest (Restrictions) Act, 1920, must be read as
equivalent to "attribute". The Privy Council in Bicber, Ltd.
V. Commissioners of Income-tax,[1962] 3 All. E.R.. 294, had
observed that these words could mean more than "consisting
of" or "namely". This Court said, "It may be accepted that
the said expression received a wide interpretation, having
regard to the object of the provisions and the setting in
which the said words appeared. On the other hand, Indian tax
laws use the expression 'in respect of' as synonymous with
the expression 'on'." In the provision under consideration
the expression "in respect of the goods" was held to mean
"on the goods".
This Court drew a distinction in the above case between
the use of the expression "in respect of" in taxing statutes
in India and its use elsewhere. In the context of its use in
the Constitution and having regard to the object which is
intended to be secured by Article 105(2), we think that the
broad interpretation thereof is the most appropriate. It is
thus that this Court has already interpreted the provision.
The Attorney General submitted that a proceeding in
court founded on the allegation that a member of Parliament
had received a bribe to vote in a particular way was not a
proceeding in respect of a vote that he had given and that,
therefore, the member did not enjoy immunity from the
proceeding by reason of Article 105(2) did not cover
criminal proceedings. It had been held by the courts of the
United States of America, Canada, Australia and, recently,
England, he said, that a legislator could be proceeded
against for corruption. The Attorney General relied upon the
decisions and reports in this behalf to which we shall
refer.The Attorney General submitted that the immunity given
by Article 105(2) should be interpreted in the light of the
times in which we live and, so interpreting it, should
exclude from its coverage corrupt legislators.
In Bradlaugh v. Gossett, 12 Q.B.D.271, the plaintiff
Bradlaugh had been elected to the House of Commons. He
required the Speaker to call him to the table to take the
oath. By reason of what had transpired on a earlier
occation, the Speaker declined to do so and the House
resolved that the Serjeant-at-Arms should exclude Bradlaugh
until "he shall engage not further to disturb the
proceedings of the House". Bradlaugh prayed for an
injunction against the Serjeant-at-Arms restraining him from
carrying out the resolution. The suit was dismissed. Lord
Coleridge, C.J. said, "What is said or done within the walls
of Parliament cannot be inquired into in a court of
law...........The jurisdiction of the Houses over their own
members, their right to impose discipline within their
walls, is absolute and exclusive. To use the words of Lord
Ellenborough, "They would sink into utter contempt and
inefficiency without it."' He added, "The Houses of
Parliament cannot act by themselves in a body : they must
act by officers; and the Serjeant-at-arms is the legal and
recognised officer of the House of Commons to execute its
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orders. I entertain no doubt that the House had a right to
decide on the subject-matter, have decided it, and have
ordered their officer to give effect to their decision. He
is protected by their decision. They have ordered him to do
what they have a right to order, and he has obeyed
them.........If injustice has been done, it is injustice for
which the Courts of law afford no remedy." Stephen, J.,
concurring, said that the House of Commons was not subject
to the control of Her Majesty's Courts in its administration
of that part of the statute law which had relation to its
own internal proceedings, and that the use of such actual
force as was necessary to carry into effect such a
resolution as the one before the court was justifiable. In
support, the learned Judge quoted Blackstone, who had said,
"The whole of the law and custom of Parliament has its
original from this one maxim, 'that whatever matter arises
concerning either House of Parliament ought to be
examined, discussed, and adjudged in that House to which it
relates, and not elsewhere." This principle had been re-
stated by the judges who decided Stockdale v. Hansard, 9 Ad.
& E.I. Lord Denman had said, "Whatever is dome within the
walls of either assembly must pass without question in any
other place." Littledale, J., had said, "It is said the
House of Commons is the sole judge of its own privileges;
and so I admit as far as the proceedings in the House and
some other things are concerned." Patteson, J., had said,
"Beyond all dispute, it is necessary that the proceedings of
each House of Parliament should be entirely free and
unshackled, that whatever is said or done in either House
should not be liable to examination elsewhere." And
Coleridge, J., had said, "That the House should have
exclusive jurisdiction to regulate the course of its own
proceedings, and animadvert upon any conduct there in
violation of its rules or derogation from its dignity,
stands upon the clearest grounds of necessity." It seemed to
follow that the House of Commons had the exclusive power of
interpreting the Parliamentary Oaths Act, so far as the
regulation of its own proceedings within its own walls was
concerned: and that, even if that interpretation was
erroneous , the court had no power to interfere with it
"directly or indirectly". It was in regard to a possible
case as to the effect of an order by the House of Commons
to put a member to death or to inflict upon him bodily harm
that the learned Judge said, "I know of no authority for the
proposition that an ordinary crime committed in the House of
Commons would be withdrawn from the ordinary course of
criminal justice". Referring to the old case of Sir John
Eliot, Denzil Hollis, and Others, the learned Judge said,
"This case is the great leading authority, memorable on many
grounds, for the proposition that nothing said in parliament
by a member as such, can be treated as an offence by the
ordinary Courts".
In the case of Church of Scientology of California vs.
Johnson Smith, (1972) ALL E.R. 378, the defendant, a member
of Parliament, was sued for libel allegedly published in a
television programme. He pleaded fair comment and privilege.
The plaintiffs countered by alleging malice, to prove which
they sought to bring on record as evidence extracts from
Hansard. The trial judge declined to permit them to do so.
In his ruling he said,
"I am quite satisfied that in these
proceedings it is not open to
either party to go directly, or
indirectly, into any question of
the motives or intentions, of the
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defendant or Mr. Hordern or the
then Minister of Health or any
other member of Parliament in
anything they said or did in the
House."
The report of the Royal Commission on Standards of Conduct
in Public Life, chaired by Lord Salmon, was presented in
July 1976. It says,
"307. Only Parliament can decide
what conduct constitutes a breach
of privilege or a contempt of
Parliament. In cases that are
adjudged to be 'contempts', the
House may exercise its penal
jurisdiction to punish the
offenders. The main penal sanctions
available to the House are
reprimand and committal to the
custody of the Serjeant at Arms or
to prisons. These sanctions apply
both to Members and strangers. In
addition, a Member may be suspended
from the House or expelled. The
House of Commons possesses no power
to impose a fine.
"308. Whilst the theoretical power
of the House to commit a person
into custody undoubtedly exists,
nobody has been committed to prison
for contempt of Parliament for a
hundred years or so, and it is most
unlikely that Parliament would use
this power in modern conditions."
The Report states (in para 307), "it is in the light of the
foregoing paragraphs that we note the fact that neither the
statutory nor the common law applies to the bribery or
attempted bribery of a Member of Parliament in respect of
his Parliamentary activities". The Report speaks (in para
309) of "the historical circumstances in which the ordinary
criminal law has not applied to bribery in respect of
proceedings in Parliament". It finds (in para 310) that "the
briber of a Member of Parliament would be immune from
effective punitive sanctions of the kind that can be
inflicted under the criminal law. Public obloquy is unlikely
to be an effective sanction against such a person and
accordingly we consider that there is a strong case for
bringing such malpractices within the criminal law". It
reiterates that "the bribery of a Member of Parliament
acting in his Parliamentary capacity does not constitute an
offence known to the criminal law........". The conclusion
of the Report on the point is contained in para 311:
"Membership of Parliament is a
great honour and carries with it a
special duty to maintain the
highest standards of probity, and
this duty has almost invariably
been strictly observed.
Nevertheless in view of our report
as a whole, and especially in the
light of the points set out in the
foregoing paragraph, we recommend
that Parliament should consider
bringing corruption, bribery and
attempted bribery of a Member of
Parliament acting in his
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Parliamentary capacity within the
ambit of the criminal law".
In Prebble v. Television New Zealand Ltd., (1994) 3 All
E.R. 407, the Privy Council considered Article 9 of the Bill
of Rights (1688), which applies by reason of incorporation
in New Zealand. It reads thus:
"That the freedom of speech and
debates or proceedings in
parliament ought not to be
impeached or questioned in any
court or place out of Parliament."
The defendant, a New Zealand television company, aired a
programme in which it was alleged that the plaintiff,
Prebble, then a Minister in the New Zealand Government, had
conspired with certain businessman and public officials to
give the businessmen an unfair opportunity to obtain certain
state-owned assets which were being privatised on unduly
favourable terms in return for donations to his political
party, and he had thereafter arranged for incriminating
documents and computer files to be destroyed. The plaintiff
having brought an action for libel, the defendant company
pleaded justification, alleging that the plaintiff and other
ministers had made statements in the House of
Representatives which had been misleading and that the
conspiracy had been implemented by introducing and passing
legislation in the House. The plaintiff applied to strike
out these particulars on the ground that parliamentary
privilege was infringed. The trial judge upheld the claim to
immunity, as did the Court of Appeal. The privileges
Committee of the House of Representatives having held that
the House had no power to waive the privileges protected
by Article 9, the plaintiff appealed to the Privy Council
also upheld the claim to immunity. Lord Browne-Wilkinson,
speaking for the Board, said that if Article 9 was looked at
alone, the question was whether it would infringe that
Article to suggest that the statements that were made in the
House were improper or that the legislation was procured in
pursuance of the alleged conspiracy, as constituting
impeachment or questioning of the freedom of speech of
Parliament. In addition to Article 9 itself, there was a
long line of authority which supported a wider principle,
of which Article 9 was merely one manifestation, namely,
that the courts and Parliament were both astute to recognise
their respective constitutional roles. So far as the courts
were concerned, they would not allow any challenge to be
made to what was said or done within the walls of Parliament
in performance of its legislative functions and protection
of its established privileges. The basic concept that
underlay Article 9, namely , the need to ensure so far as
possible that a member of the legislature and witnesses
before a committee of the House spoke freely "without fear
that what they say will later be held against them in the
courts. The important public interest protected by such
privilege is to ensure that the member or witness at the
time he speaks is not inhibited from stating fully and
freely what he has to say. If there were any exceptions
which permitted his statements to be questioned
subsequently, at the time when he speaks in Parliament he
would not know whether or not there would subsequently be a
challenge to what he is saying. Therefore he would not have
the confidence the privilege is designed to protect." The
privilege protected by Article 9 was the privilege of
Parliament itself. The actions of an individual member of
Parliament, even if he had an individual privilege of his
own, could not determine whether or not the privilege of
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Parliament was to apply. The wider principle that had been
encapsulated by Blackstone prevented the courts from
adjudicating on "issues arising in or concerning the House,
viz whether or not a member has misled the House or acted
from improper motives. The decision of an individual member
cannot override that collective privilege of the House to
be the sole judge of such matters". Cases such as the one
before the Privy Council illustrated how public policy, or
human rights, issues could conflict. There were "three such
issues in play in these cases: first, the need to ensure
that the legislature can exercise its powers freely on
behalf of its electors, with access to all relevant
information; second, the need to protect freedom of speech
generally; third, the interests of justice in ensuring that
all relevant evidence is available to the courts. Their
Lordships are of the view that the law has been long settled
that, of these three public interests, the first must
prevail."
Very recently, in the case of R. vs. Currie, it was
alleged against Harry Greenway, a Member of Parliament, that
he had accepted a bribe from Plasser, Jurasek and Brooks as
a reward for using his influences as a Member of Parliament
in respect of Jurasek's application for British nationality.
The indictment of the four was sought to be quashed on the
basis that the bribery of a Member of Parliament was not a
crime and that, in any event, the court had no jurisdiction
for only Parliament could try a member for bribery, the
matter being covered by Parliamentary privilege. The trial
judge, Buckley, J. did not agree. He quoted the Salmon
Commission Report. He also noted that Lord Salmon, speaking
in the debates of the House of Lords, had said, after
referring to the immunity enjoyed by Members of Parliament
from being prosecuted under the criminal law if they took
bribes, that, "at Common Law you cannot be convicted of
bribery and corruption unless you are a holder of an office,
and most of us are not the holders of an office". Viscount
Dilhorne had agreed. Buckley, J. could not accept that a
question of such great importance could turn on semantics.
In his view, "To hold that the existence of a Common Law
crime of bribing a Member of Parliament depends upon the
meaning to be given to the word "office" in this context, as
opposed to looking at the principle involved, would not be
calculated to commend the Criminal Law to the public it
should serve." Buckley, J. noted what had been said by James
Martin, C.J. in R.V. White, 13 SCR (NSW), 332, which case
concerned the attempted bribery of a Member of Parliament in
New South Wales, "........a legislator who suffers his votes
to be influenced by a bribe does that which is calculated to
sap the utility of representative institutions at their
foundations. it would be a reproach to the Common Law if
the offer to, or the acceptance of, a bribe by such a person
were not an offence". Faucett, j., agreeing with the Chief
Justice, had said, "The principle is, that any person who
holds a public office or public employment of trust, if he
accepts a bribe to abuse his trust - in other words, if he
corruptly abuses his trust - is guilty of an offence at
Common Law; and the person who gives the bribe is guilty of
an offence at Common Law". The same view had been taken in
Canada in R V. Bunting, 1885 Ontario Reports 524; that was a
case of a conspiracy to bring about a change in the
Government of the Province of Ontario by bribing members of
the Legislature to vote against the Government. R.V..
Boston,(1923) 33 Commonwealth Law Reports 386, was also a
case where similar arguments had been advanced and turned
down, and Buckley, J.quoted this "memorable sentence "from
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the judgment of Higgins, J.:" A member is the watch-dog of
the public; and Cerberus must not be seduced from vigilance
by a sop." Based upon these judgments, Buckley, J., was
satisfied that "the undoubted common law offence of bribery
is not artificially limited by reference to any particular
shade of meaning of the word 'office'. The underlying reason
or principle is concerned with the corruption of those who
undertake a duty, in the proper discharge of which the
public is interested." The learned Judge then considered the
question of parliamentary privilege and noted Article 9 of
the Bill of Rights, 1688, which has already been quoted. The
learned judge quoted Lord Salmon, speaking in the House of
Lords, thus: "To my mind equality before the law is one of
the pillars of freedom. To say that immunity from criminal
proceedings against anyone who tries to bribe a Member of
Parliament and any Member of Parliament who accepts the
bribe, stems from the Bill of Rights is possibly a serious
mistake". After quoting the Bill of Rights, Lord Salmon had
continued : "Now this is a charter for freedom of speech in
the House it is not a charter for corruption. To my mind,
the Bill of Rights, for which no one has more respect that I
have, has no more to do with the topic which we are
discussing than the Merchandise Markets Act. The crime of
corruption is complete when the bribe is offered or given or
solicited or taken." Buckley, J., commented, "It is
important to note that which Lord Salmon pointed out,
namely, that corruption is complete when the bribe is
offered or given, solicited or taken. If, as is alleged
here, a bribe is given and taken by a Member of Parliament,
to use his position dishonestly, that is to favour the
briber as opposed to acting independently and on the merits,
the crime is complete. It owns nothing to any speech, debate
or proceedings in Parliament. Proof of the element of
corruption in the transaction is another and quite separate
consideration. Privilege might well prevent any inquiry by a
court into Parliamentary debates or proceedings. See : The
Church Of Scientology v. Johnson-Smith, 1972, 1 KB 522.
However, it is not a necessary ingredient of the crime that
the bribe worked." Referring to the case of Ex parte Wason,
to which we shall make more detailed reference later,
Buckley, J., observed that the substance of the proposed
indictment there was that certain parties had conspired to
make false statements in the House of Lords and Cockburn,
C.J., had held "that the making of false statements in
either House of Parliament could not be the subject of
criminal or civil proceedings and nor could not be the
subject of criminal or civil proceedings and nor could a
conspiracy to do so". It seemed clear to the learned judge
that the court had Article 9 of the Bill of Rights well in
mind. "The only candidate", he said, "for the unlawful act
or means was the very act which was not subject to the
criminal law". He added that he could not see that the
reasoning of Ex parte Wason, assuming the decision to be
correct, would apply to alleged bribery for the proof of
which no reference to going on in Parliament would be
necessary. This approach, he found, happened to be in line
with several United States authorities on their "Speech or
Debate Clause" which, for all practical purposes, was the
same as Article 9. That a Member of Parliament against whom
there was a prima facie case of corruption should be immune
from prosecution in the courts of law was to Buckley, J.'s
mind an unacceptable proposition "at the present time". He
did not believe it to be the law. The Committee of
Privileges of the House was "not well equipped to conduct an
enquiry into such a cases ..................nor is it an
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appropriate or experienced body to pass sentence
.................. The courts and legislatures have over
the years built up a formidable body of law and codes of
practice t achieve fair treatment of suspects and persons
ultimately charged and brought to trial .................
Again, unless it is to be assumed that his peers would lean
in his favour why should a Member be deprived of a jury and
an experienced judge to consider his guilt or innocence and,
if appropriate, sentence ? Why should the public be
similarly deprived." The prosecution went ahead against the
other accused but the charge was not established. The member
of Parliament was., therefore, also acquitted.
The Law Commission in England very recently published a
Consultation Paper (No.145) entitled "Legislating the
Criminal Code - Corruption". It refers to the Salmon
Commission Report, the report of the Nolan Committee on the
Standards of Conduct in Public Life and recent judgments (to
one of which we shall advert). It states, "Whether Members
of Parliament are subject to the criminal law of corruption,
and more particularly whether they should be, are both
contentious issues currently to the fore in public debate.
As to the latter, on the one hand it has been said of
Members of Parliament that 'Few are in a higher position of
trust or have a duty to discharge in which the public have a
greater interest', and they should arguably therefore be
subject to the criminal law. On the other hand, they are sui
generis, in that, although they have be benefit of
Parliamentary privilege, which protects them against
criminal liability for things said in Parliamentary
proceedings, they are, in consequence, subject to the
jurisdiction in Parliament".
Halbury's Laws of England, Fourth Edition, in dealing
with Members of Parliament under the subject of "Criminal
Law, Evidence and Procedure" (in Volume 11, para 37), sets
out the law succintly:
"37. Members of Parliament. Except
in relation to anything said in
debate, a member of the House of
Lords or of the House of Commons is
subject to the ordinary course of
criminal justice the privileges of
Parliament do not apply to criminal
matters."
Before we deal with the judgment of the United States
Supreme Court in United States v. Daniel B. Brewster, 33 L.
Ed. 2d 507, which lends support to the learned Attorney
General's submissions, we should set out the speech or
debate clause in the Constitution of the United States and
refer to the United States Supreme Court judgment in United
States v. Thomas F. Johnson, 15 L.Ed. 2d 681, to which the
latter judgment makes copious reference.
Article 1, Section 6 of the United States Constitution
contains the speech or debate clause. Referring to United
States Senators and Representatives, it says : (F) or any
Speech or Debate in either House, they shall not be
questioned in any other Place".
Thomas F. Johnson was convicted by a United States
Distinct Court for violating a federal conflict of interest
statute and for conspiring to defraud the United States.
Evidence was admitted and argument was permitted at the
trial that related to the authorship, content and motivation
of a speech which the Congressman had allegedly made on the
floor of the House of Representatives in pursuance of a
conspiracy designed to give assistance, in return for
compensation, to certain savings and loan associations which
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had been indicated on mail fraud charges. The conviction had
been set aside by the Court of Appeals on the ground that
the allegations in regard to the conspiracy to make the
speech were barred by the speech or debate Clause. Finding
that the evidence that had been adduced upon the
unconstitutional aspects of the conspiracy count had
infected the entire prosecution, the Court of Appeals had
ordered a new trial on the other counts. The Supreme Court
, in further appeal, held that the prosecution on the
conspiracy charge, being dependent upon an intensive inquiry
with respect to the speech on the floor of the House,
violated the speech or debate clause warranting the grant of
a new trial on the conspiracy count, with all elements
offensive to the speech or debate clause eliminated. The
earlier cases, it said, indicated that the legislative
privilege had to be read broadly to effectuate its purpose.
Neither of those cases, however, had dealt with criminal
prosecution based upon the allegation that a member of
Congress had abused his position by conspiring to give a
particular speech in return for remuneration from private
interests. However reprehensible such conduct might be, the
speech or debate clause extended at least so far as to
prevent it from being made the basis of a criminal charge
against a member of Congress of conspiracy to defraud the
United States by impeding the due discharge of Government
functions. The essence of such a charge in the context was
that the Congressman's conduct was improperly motivated, and
that was precisely what the speech or debate clause
generally foreclosed from executive and judicial inquiry.
The Government argued that the clause was meant to prevent
only prosecutions based upon the "content" of speech, such
as libel actions, but not those founded on "the antecedent
unlawful conduct of accepting or agreeing to accept a
bribe". Th language of the Constitution was framed in the
broadest terms. The broader thrust of the privilege had been
indicated by Ex parte Wason, which dealt specifically with
an alleged criminal conspiracy. Government had also
contended that the speech or debate clause was not
violated because the gravamen of the charge was the alleged
conspiracy, not the speech, and because the defendant, not
the prosecution, had introduced the speech. Whatever room
the Constitution might allow for such factors in the context
of a different kind of prosecution, they could not serve to
save the Government's case under the conspiracy charge. It
was undisputed that the Congressman had centered upon the
questions of who first decided that a speech was desirable,
who prepared it, and what the Congressman's motives were for
making it. The indictment itself focused with particularity
upon motives underlying the making of the speech and upon
its contents. The prosecution under a general criminal
statute dependent on such inquiries necessarily, contravened
the speech or dabate clause. The court added that its
decision did not touch a prosecution which, though, as here,
it was founded on a criminal statute of general application,
did not draw in question the legislative acts of a
Congressman or his motives for performing them. The court
expressly left open for consideration the case of a
prosecution, which though it might entail an inquiry into
legislative acts or motivations, was founded upon a narrowly
drawn statute passed by Congress in the exercise of its
legislative power to regulate the conduct of its members.
Daniel B. Brewster was a United States Senator. He had
been charged with accepting bribes in exchange for promises
related to official acts while a Congressman. The charge was
that he had violated the terms of a narrowly drawn statute.
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The Senator moved to dismiss the indictment before the
trial began on the ground that he was immune from
prosecution for any alleged act of bribery because of the
speech or debate clause. The District Court upheld the claim
of immunity. The Government preferred a direct appeal to the
Supreme Court. Burger, C.J., spoke for 6 members of the
court. Brennan, J. and White, J. delivered dissenting
opinions, with which Douglas, J., joined. The charges were
that the Senator, while such and a member of the Senate
Committee on Post Office and Civil Service, "directly and
indirectly, corruptly asked, solicited, sought, accepted,
received and agreed to receive sums.........in return for
being influenced in his performance of official acts in
respect to his action, vote and decision on postage rate
legislation which might at any time be pending before hm in
his official capacity........." The other charge was in
respect of official acts performed by him in respect to his
action, vote and decision on postage rate legislation which
had been pending before him in his official capacity.
Burger, C.J. took the view that the immunities of the speech
or debate clause were not written into the Constitution
simply for the personal or private benefit of members of
Congress, but to protect the integrity of the legislative
process by insuring the independence of individual
legislators. Although the speech or debate clause's historic
roots were in English history, it had to be interpreted in
the light of the American constitutional scheme of
government rather than the English parliamentary system. It
had to be borne in mind that the English system differed in
that Parliament in England was the supreme authority, not a
coordinate branch. The speech or debate privilege was
designed to preserve legislative independence, not
supremacy. The courts' task , therefore, was to apply the
clause in such a way as to insure the independence of the
legislature without altering the historic balance of the
three co-equal branches of Government. Referring to the
cause of Johnson(ibid). Burger, C.J., said that it
unanimously held that a member of Congress could be
prosecuted under a criminal statute provided that the
Government's case did not rely on legislative acts or the
motivation for legislative acts. A legislative act had
consistently been defined as an act generally done in
Congress in relation to the business before it. The speech
or debate clause prohibited inquiry only into those things
generally said or done in the House or the Senate in the
performance of official duties and into the motivation for
those acts. Counsel on behalf of the Senator had argued
that the court in Johnson had expressed a broader test for
the coverage of the speech or debate clause. He had urged
that the court had held that the clause protected from
executive or judicial inquiry all conductg" related to the
due functioning of the legislative process." Burger, C.J.,
said that the quoted words did appear in the Johnson
opinion, but they were taken out of context. In context,
they reflected a quite different meaning from that urged. In
stating the speech or debated clause did not apply to
things which "in no wise related to the due functioning of
the legislative process" the court in Johnson had not
implied as a corollary that everything that "related" to the
office of a member was shielded by the clause. In Johnson it
had been held that only acts generally done in the course of
the process of enacting legislation were protected. In no
case had the court ever treated the clause as protecting all
conduct relating to the legislative process. In every case
thus far before the court, the speech or debate clause had
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been limited to an act which was clearly a part of the
legislative process, the due functioning of the process.
The contention on behalf of the Senator for a broader
interpretation of the privilege drew essentially on the
flavor of the rhetoric and the sweep of the language used by
the courts, not on the precise words used in any prior case,
and not on the sense of those cases, fairly read. It was not
sound or wise, simply out of an abundance of caution to
doubly insure legislative independence, to extend the
privilege beyond its intended scope, literal language and
history, to include all things in any way related to the
legislative process. Given such a sweeping reading, there
would be few activities in which a legislator engaged that
he would be unable somehow to "relate" to the legislative
process. The speech or debate clause, admittedly, had to be
read broadly to effectuate its purpose was not "to make
members of Congress super-citizens, immune from criminal
responsibility. In its narrowest scope, the clause is a very
large, albeit essential, grant of privilege. It has enabled
reckless men to slander and even destroy others with
impunity, but that was the conscious choice of the Framers".
Burger, C.J., did not discount entirely the possibility that
an abuse might occur, but this possibility which he
considered remote, had to be balanced against the potential
danger flowing from either the absence of a bribery statute
applicable to members of Congress or holding that such a
statute violated the Constitution. As he had noted at the
outset of his judgment, the learned Chief Justice said that
the purpose of the speech or debate clause was to protect
the individual legislator, not simply for his own sake, but
to preserve the independence and thereby the integrity of
the legislative process. Financial abuses by way of bribes,
perhaps even more than Executive power, would gravely
undermine legislative integrity and defeat the right of the
public to honest representation. Depriving the Executive of
the power to investigate and prosecute and the Judiciary of
the power to punish bribery of members of Congress was
unlikely to enhance legislative independence. The speech or
debate clause was broad enough to insure the historic
independence. The speech or debate clause was broad enough
to insure the historic independence of the Legislative
Branch, essential to the separation of powers, but narrow
enough to guard against the excess of those who would
corrupt the process by corrupting its members. Taking a
bribe was no part of the legislative process or function; it
was not a legislative act. It was not, by any conceivable
interpretation, an act performed as a part of or even
incidental to the role of a legislator. It was not an act
resulting from the nature, and in the execution, of the
office. It was not a thing said or done in the exercise of
the functions of that office. Nor was inquiry into a
legislative act or the motivation for a legislative act
necessary to a prosecution under the concerned statute or
the indictment. When a bribe was taken, it did not matter
whether the promise for which the bribe was given was for
the performance of a legislative act or for use of a
Congressman's influence with the Executive Branch. And an
inquiry into the purpose of a bribe did not draw in question
the legislative acts of the member or his motives for
performing them. Nor did it matter if the member defaulted
on his illegal bargain. The Government, to make a prima
facie case under the indictment, need not
show any act of the Senator subsequent to the corrupt
promise for payment, for it was taking the bribe, not
performance of the illicit compact, that was a criminal act.
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The learned Chief Justice said, "The only reasonable reading
of the clause consistent with its history and purpose, is
that it does not prohibit inquiry into activities that are
casually or incidentally related to legislative affairs but
not a part of the legislative process itself".
Brennan, J., dissenting, said. "I would dispel at the
outset any notion that Senator Brewster's asserted immunity
strains the outer limits of the Clause. The Court writes at
length in an effort to show that 'Speech or Debate' does not
cover 'all conduct relating to the legislative process'.
........Even assuming the validity of that conclusion, I
fail to see its relevance to the instant case. Senator
Brewster is not charged with conduct merely "relating to the
legislative process," but with a crime whose proof calls
into question the very motives behind his legislative acts.
The indictment, then, lies not at the periphery but at the
very center of the protection that this Court has said is
provided a Congressman under the Clause." The learned Judge
said that there could be no doubt that the Senator's vote on
new postal rates constituted legislative activity within
the meaning of the speech or debate clause. The Senator
could not be prosecuted or called to answer for his vote in
any judicial or executive proceeding. But the Senator's
immunity went beyond the vote itself and "precludes all
extra-congressional scrutiny as to how and why he cast, or
would have cast, his vote a certain way". The learned Judge
quoted Frankfurter, J., speaking in the case of Tenny v.
Brandhove, 95 L. Ed. 1019, thus : "One must not expect
uncommon courage even in legislators. The privilege would be
of little value if they could be subjected to the cost and
inconvenience and distractions of a trial upon a conclusion
of the pleader, or to the hazard of a judgment against them
based upon a jury's speculation as to motives. The holding
of this Court in Fletcher v Peck, 3 L. Ex. 162, 176, that it
was not consonant with our scheme of government for a court
to inquire into the motives of legislators, has remained
unquestioned........... In times of political passion,
dishonest or vindictive motives are readily attributed to
legislative conduct and as readily believed. Courts are not
the place for such controversies. Self-discipline and the
voters must be the ultimate reliance for discouraging or
correcting such abuses." Neither the Senator's vote nor his
motives for voting, however dishonourable, could be the
subject of a civil or criminal proceeding outside the halls
of the Senate. There was nothing complicated about this
conclusion. It followed simply and inescapably from prior
decisions of the United States Supreme Court setting forth
the basic elements of legislative immunity. Yet, the
majority has adopted "a wholly artificial view of the
charges before us". The indictment alleged not the mere
receipt of money in exchange for a Senator's vote and
promise to vote in a certain way. Insofar as these charges
bore on votes already cast, the Government could not avoid
proving the performance of the bargained-for acts and any
inquiry in this behalf violated the speech or debate clause.
The charges of only a corrupt promise to vote were equally
repugnant to the speech or debate clause. The majority view
might be correct that only receipt of the bribe, and not
performance of the bargain, was needed to prove these
counts. But proof of an agreement to be "influenced" in the
performance of legislative acts was "by definition an
inquiry into their motives, whether or not the acts
themselves or the circumstances surrounding them are
questioned at trial. Furthermore, judicial inquiry into an
alleged agreement of this kind carries with it the same
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dangers to legislative independence that are held to bar
accountability for official conduct itself. As our Brother
White cogently states, ................ Bribery is most
often carried out by prearrangement; if that part of the
transaction may be plucked from its context and made the
basis of criminal charges, the Speech or Debate Clause loses
its force. It would be small comfort for a Congressman to
know that he cannot be prosecuted for his vote, whatever it
might be, but he can be prosecuted for an alleged agreement
even if he votes contrary to the asserted bargain'.
Thus, even if this were an issue of first impression. I
would hold that this prosecution, being an extra-
congressional inquiry into legislative acts and motives, is
barred by the Speech or Debate Clause.
What is especially disturbing about the Court's result,
however, is that this is not an issue of first impression,
but one that was settled six years ago in United States v.
Johnson, 15 L.Ed.2d 681." The learned Judge added that the
majority could not "camouflage its departure from the
holding of Johnson by referring to a collateral ruling
having little relevance to the fundamental issues of
legislative privilege involved in that case. I would follow
Johnson and hold that Senator Brewster's alleged promise,
like the Congressman's there, is immune from executive or
judicial inquiry". The learned judge said that he yielded
nothing to the majority "in conviction that this
reprehensible and outrageous conduct, if committed by the
Senator, should not have gone unpunished. But whether a
court or only the Senate might undertake the task is a
constitutional issue of portentous significance, which must
of course be resolved uninfluenced by the magnitude of the
perfidy alleged. It is no answer that Congress assigned the
task to the judiciary in enacting 18 USC 201. Our duty is to
Nation and Constitution, not Congress. We are guilty of a
grave disservice to both nation and Constitution when we
permit Congress to shirk its responsibility in favor of the
courts. The Framers' judgment was that the American people
could have a Congress of independence and integrity only if
alleged misbehavior in the performance of legislative
functions was accountable solely to a Member's own House and
never to the executive or judiciary. The passing years have
amply justified the wisdom of that judgment. It is the
Court's duty to enforce the letter of the Speech or Debate
Clause in that spirit. We did so in deciding Johnson. In
turning its back on that decision today, the Court arrogates
to the judiciary an authority committed by the
Constitution, in Senator Brewster's case, exclusively to the
Senate of the United States. Yet the Court provides no
principal justification, and I can think of none , for its
denial that United States v Johnson compels affirmance of
the District Court. The decision is only six years old and
bears the indelible imprint of the distinguished
constitutional scholar who wrote the opinion for the Court.
Johnson surely merited a longer life".
Justice White took substantially a similar view and
part of what he said has already been quoted.
The judgment in Brewster was followed in United States
v Henry Helstoski, 61 L. Ed. 2d 12 Brennan, J., dissenting,
expressed the view that the indictment in question should
have been dismissed "since a corrupt agreement to perform
legislative acts, even if provable without reference to the
acts themselves, may not be the subject of a general
conspiracy prosecution".
Broadly interpreted, as we think it should be, Article
105(2) protects a Member of Parliament against proceedings
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in court that relate to, or concern, or have a connection or
nexus with anything said, or a vote given, by him in
Parliament.
The charge against the alleged bribe takers is that
they "were party to a criminal conspiracy and agreed to or
entered into an agreement with" the alleged bribe givers "to
defeat the no-confidence motion..........by illegal means,
viz., to obtain or agree to obtain gratification other than
legal remunerations" from the alleged bribe givers "as a
motive or reward for defeating the no-confidence motion and
in pursuance thereof "the alleged bribe givers "passed on
several lacs of rupees" to the alleged bribe takers, "which
amounts were accepted" by then . The stated object of the
alleged conspiracy and agreement is to defeat the no-
confidence motion and the alleged bribe takers are said to
have received monies "as a motive or reward for defeating"
it . The nexus between the alleged conspiracy and bribe and
the no-confidence motion is explicit. The charge is that the
alleged bribe takers the bribes to secure the defeat of the
no-confidence motion.
While it is true that the charge against them does not
refer to the votes that the alleged bribe takers; Ajit Singh
excluded, actually cast against the no-confidence motion and
that it may be established de hors those votes, as the
Attorney General argued, we do not think that we can ignore
the fact that the votes were cast and, if the facts alleged
against the bribe takers are true, that they were cast and,
if the facts alleged against the bribe takers are true, that
they were cast pursuant to the alleged conspiracy and
agreement. It must then follow, given that the expression
"in respect of" must receive a broad meaning, that the
alleged conspiracy and agreement has a nexus to and were in
respect of those votes and that the proposed inquiry in the
criminal proceedings is in regard to the motivation thereof.
It is difficult to agree with the learned Attorney
General that, though the words "in respect of" must receive
a broad meaning, the protection under Article 105(2) is
limited to court proceedings that impugn the speech that is
given or the vote that is cast or arise thereout or that the
object of the protection would be fully satisfied thereby.
The object of the protection is to enable members to speak
their mind in Parliament and vote in the same way, freed of
the fear of being made answerable on that account in a court
of law. It is not enough that members should be protected
against civil action and criminal proceedings, the cause of
action of which is their speech or their vote. To enable
members to participate fearlessly in Parliamentary debates,
members need the wider protection of immunity against all
civil and criminal proceedings that bear a nexus to their
speech or vote. It is for that reason that member is not
"liable to any proceedings in any court in respect of
anything said or any vote given by him". Article 105(2) does
not say, which it would have if the learned Attorney General
were right, that a member is not liable for what he has said
or how he has voted. While imputing no such motive to the
present prosecution, it is not difficult to envisage a
member who has made a speech or cast a vote that is not to
the liking of the powers that be being troubled by a
prosecution alleging that he had been party to an agreement
and conspiracy to achieve a certain result in Parliament and
had been paid a bribe.
We are acutely conscious of the seriousness of the
offence that the alleged bribe takor are said to have
committed. If true, they bartered a most solemn trust
committed to them by those they represented. By reason of
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the lucre that they received, they enabled a Government to
survive. Even so, they are entitled to the protection that
the Constitution plainly affords them. Our sense of
indignation should not lead us to construe the Constitution
narrowly, imparing the guarantee to effective Parliamentary
participation and debate.
We draw support for the view that we take from the
decision of United States Supreme Court in Johnson and from
the dissenting judgment of Brennan, J. in Brewster.
In Johnson, the United States Supreme Court held that
the speech or debate clause extended to prevent the
allegation that a member of Congress had abused his position
by conspiring to give a particular speech in return for
remuneration from being the basis of a criminal charge of
conspiracy. The essence of such a charge was that the
Congressman's conduct was improperly motivated, and that
was precisely what the speech or debate clause foreclosed
from executive and judicial inquiry. The argument that the
speech or debate clause was meant to prevent only
prosecutions based upon the content of the speech, such as
libel actions, but not those founded on the antecedent
unlawful conduct of accepting or agreeing to accept a bribe
was repulsed. Also repulsed was the argument that the speech
or debate clause was not violated because the gravamen of
the charge was the alleged conspiracy , not the speech. The
indictment focused upon the motive underlying the making of
the speech and a prosecution under a criminal statute
dependent on such inquiry contravened the speech or debate
clause. It might be that only receipt of the bribe and not
performance of the bargain was needed to prove the charge,
but proof of an agreement to be influenced in the
performance of legislative acts was "by definition an
inquiry into their motives, whether or not the acts
themselves or the circumstances surrounding them are
questioned at trial. Furthermore, judicial inquiry into an
alleged agreement of this kind carries with it the same
dangers to legislative independence that are held to bar
accountability for official conduct itself". The Senator's
"reprehensible and outrageous conduct", if committed, should
not have gone unpunished, but whether a court or only the
Senate "might undertake the task was a constitutional issue
of portentous significance, which must of course be
resolved uninfluenced by the magnitude of the perfidy
alleged".
We cannot but be impressed by the majority opinion in
Brewster but, with respect, are more pursuaded by the
dissent. The majority opinion stated that the only
reasonable reading of the speech and debate clause was "that
it does not prohibit inquiry into activities that are
casually or incidentally related to legislative affairs but
Brennan, J., dissenting in Brewster, said that Brewster
had been charged with a crime whose proof called into
question the motives behind his legislative acts. He could
not only not be prosecuted or called to answer for his vote
in any judicial or executive proceeding but his immunity
went beyond the vote itself and precluded "all extra-
congressional scrutiny as to how and why he cast, or would
have cast, his vote a certain way". Neither the Senator's
vote nor his motives for voting, however dishonourable,
could be the subject of a civil or criminal proceeding
outside the halls of the Senate. The charge of a corrupt
promises to vote was repugnant to the speech or debate
clause. It might be that only receipt of the bribe and not
performance of the bargain was needed to prove the charge,
but proof of an agreement to be influenced in the
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performance of legislative acts was "by definition an
inquiry into their motives, whether or not the acts
themselves or the circumstances surrounding them are
questioned at trial. Furthermore, judicial inquiry into an
alleged agreement of this land carries with it the same
dangers to legislative independence that are held to bar
accountability for official conduct itself". The Senator's
"reprehensible and outrageous conduct", if committed, should
not have gone unpunished, but whether a court or only the
Senate "might undertake the task was a constitutional issue
of portentous significance, which must of course be resolved
uninfluenced by the magnitude of the perfidy alleged".
We cannot but be impressed by the majority opinion in
Brewster but, with respect, are more pursuaded by the
dissent. The majority opinion stated that the only
reasonable reading of the speech and debate clause was "that
it does not prohibit inquiry into activities that are
casually or incidentally related to legislative affairs but
not a part of the legislative process itself". Upon this
construction of the speech or debate clause, it came to the
conclusion that a court could investigate whether Brewster
had taken a bribe to be influenced in the performance of
official acts in respect of his action, vote, and decision
on postage rate legislation. With respect, we cannot regard
the act of taking a bribe to vote in a particular way in the
legislature to be merely "casually or incidentally related
to legislative affairs". The Library of Congress publication
"The Constitution of the United States of America, Analysis
and Interpretation" says, and we respectfully agree,
"However, in United States v. Brewster, while continuing to
assert that the clause 'must be read broadly to effectuate
its purpose of protecting the independence of the
Legislative Branch, 'the Court substantially reduced the
scope of the coverage of the clause".
For the first time in England Buckley, J. ruled in R.
vs. Currie that a Member of Parliament who accepts a bribe
to abuse his trust is guilty of the common law offence of
bribery. The innovation in English law needs to be tested in
appeal. We say this with respect, having regard to earlier
English judgments, and we find support in the Twenty-second
edition of Erskine May's Treatise on The Law, Privileges,
Proceedings and Usage of Parliament, wherein a
foot note (on p.115) apropos the ruling read thus:
"The court observed: 'that a Member
of Parliament against whom there is
a prima facie case of corruption
should be immune from prosecution
in the courts of law is to my mind
an unacceptable proposition at the
present time' (quoted in Committee
of Privileges. First Report, HC351-
ii (1994-95) pp 161-162). The Court
seems to have had in mind, though
no attempt was made to define, an
area of activity where a Member may
act as such, without participating
in 'proceedings in
Parliament'(whether of course
article IX will apply)."
Our conclusion is that the alleged bribe takers, other
than Ajit Singh, have the protection of Article 105(2) and
are not answerable in a court of law for the alleged
conspiracy and agreement. The charges against them must
fail. Ajit Singh, not having cast a vote on the no-
confidence motion, derives no immunity from Article
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105(2).
What is the effect of this upon the alleged bribe
givers? In the first place, the prosecution against Ajit
Singh would proceed, he not having voted on the non-
confidence motion and, therefore, not having the protection
of Article 105(2). The charge against the alleged bribe
givers of conspiracy and agreement with Ajit Singh to do an
unlawful act would, therefore, proceed.
Mr. Rao submitted that since, by reason of the
provisions of Article 105(2), the alleged bribe takers had
committed no offence, the alleged bribe givers had also
committed no offence. Article 105(2) does not provide that
what is otherwise an offence is not an offence when it is
committed by a member of Parliament and has a connection
with his speech or vote therein. What is provided thereby is
that member of Parliament shall not be answerable in a court
of law for something that has a nexus to his speech or vote
in Parliament. If a member of Parliament has, by his speech
or vote in Parliament, committed an offence, he enjoys , by
reason of Article 105(2), immunity from prosecution
therefor. Those who have conspired with the member of
Parliament in the commission of that offence have no such
immunity. They can, therefore, be prosecuted for it.
Mr.Rao contended that for the offence that the bribe
takers had allegedly committed they would be answerable to
the Lok Sabha. There was a possibility of the Lok Sabha
deciding one way upon the prosecution before it of the
alleged bribe takers and the criminal court deciding the
other way upon the prosecution of the alleged bribe givers.
A conflict of decisions upon the same set of facts being
possible, it had to be avoided. The charge against the
alleged bribe givers had, therefore, to be quashed. There is
in the contention a misconception. Article 105(2) does not
state that the member of Parliament who is not liable to
civil or criminal proceedings in Parliament. Parliament in
India is not a Court of Record. It may not exercise judicial
powers or entertain judicial proceedings. The decisions of
this Court so holding have already been referred to. The
alleged bribe takers, except Ajit Singh, who are entitled to
the immunity conferred by Article 105(2) are not liable to
be tried in the Lok Sabha for the offences set out in the
charges against them or any other charges, but the Lok
Sabha may proceed against them for breach of privileges or
contempt. There is, therefore, no question of two fora
coming to different conclusions in respect of the same
charges.
Mr. Rao submitted that the alleged bribe givers had
breached Parliament's privilege and been guilty of its
contempt and it should be left to Parliament to deal with
them. By the same sets of acts the alleged bribe takers and
the alleged bribe givers committed offences under the
criminal law and breaches of Parliament's privileges and its
contempt. From prosecution for the former, the alleged
bribe takers, Ajit Singh excluded, enjoy immunity. The
alleged bribe givers do not. The criminal prosecution
against the alleged bribe givers must, therefore, go ahead.
For breach of Parliament's privileges and its contempt,
Parliament may proceed against the alleged bribe takers and
the alleged bribe givers.
Article 105(3).
Relevant to the submission on Article 105(3) is the
judgement in Ex Parte Wason, 1869 L.R.4 QBD 573. Rigby
Wason moved the Court of Queen's Bench for a rule to call
upon a metropolitan police magistrate to show cause why he
should not take on record the complaint of Wason to
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prosecute Earl Russell, Lord Chelmsford and the Lord Chief
Baron for conspiracy. Wason's affidavit in support of the
complaint stated that he had given to Earl Russell a
petition addressed by him to the House of Lords, which Earl
Russell a petition addressed by him to the House of Lords,
which Earl Russell had promised to present. The petition
charged the Lord Chief Baron, when a Queen's Counsel, with
having told a wilful and deliberate falsehood to a committee
of the House of Commons sitting as a judicial tribunal. The
petition prayed for an inquiry into the charge and, if the
charge was found true, for action against the Lord Chief
Baron under the law to remove judges. Earl Russell, Lord
Chelmsford and the Lord Chief Baron had, according to the
Wason's affidavit, prevented the course of justice by
making statements, after conferring together, which they
knew were not true in order to prevent the prayer of his
petition being granted; Wason alleged that Earl Russell,
Lord Chelmsford and the Lord Chief Baron had conspired and
agreed together to prevent the course of justice and injure
himself. The alleged conspiracy consisted in the fact that
Earl Russell, Lord Chelmsford and the Lord Chief Baron "did
agree to deceive the House of Lords by stating that the
charge of falsehood contained in my petition was false, and
that I was a calumniator; when Earl Russell, Lord
Chelmsford, and the Lord Chief Baron well knew that the
charge of falsehood committed by the Lord Chief Baron, when
Queen's Counsel, was perfectly true". Wason desired "to
prefer an indictment against Earl Russell, Lord Chelmsford,
and the Lord Chief Baron for conspiracy". The magistrate had
refused to take recognizance of the complaint on the ground
that no indictable offence had been disclosed by Wason's
information, whereupon Wason moved the Court Cockburn', C.J.
said, "I entirely agree that, supposing the matter brought
before the magistrate had been matter cognizable by the
criminal law, and upon which an indictment might have been
preferred, the magistrate would have had no discretion, but
would have been bound to proceed......On the other hand, I
have no doubt that, supposing the matter brought before the
magistrate does not establish facts upon which an indictment
could be preferred and sustained, the magistrate has a
discretion which, if rightly exercised, we ought to uphold;
and the question is whether the matter brought by the
present applicant before the magistrate was subject-matter
for an indictment....The information then charges that Earl
Russell, Lord Chelmsford, and the Lord Chief Baron agreed to
deceive the House of Lords by stating that the charge of
falsehood brought against the Lord Chief Baron was unfounded
and false, whereas they knew it to be true. Now, inasmuch
as these statements were alleged to have been for the
purpose of preventing the prayer of the petition and the
statements could not have had that effect unless made in the
House of Lords, it seems to me that the fair and legitimate
inference is that the alleged conspiracy was to make, and
that the statements were made, in the House of Lords. I
think, therefore, that the magistrate, looking at this and
the rest of the information, was warranted in coming to the
conclusion, that Mr. Wason charged and proposed to make the
substance of the indictment, that these three persons did
conspire to deceive the House of Lords by statements made in
the House of Lords for the purpose of frustrating the
petition. Such a charge could not be maintained in a court
of law. It is clear that statements made by members of
either House of Parliament in their places in the House,
though they might be untrue to their knowledge, could not be
made the foundation of civil or criminal proceedings,
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however injurious they might be to the interest of a third
person. And a conspiracy to make such statements would not
make the persons guilty of it amenable to the criminal
law..............". Blackburn, J. was of the same opinion.
He said, "When the House is sitting and statements are made
in either House of Parliament, the member making them is not
amenable to the criminal law. It is quite clear that no
indictment will lie for making them, nor for a conspiracy or
agreement to make them, even though the statements be false
to the knowledge of the persons making them. I entirely
concur in thinking that the information did only charge an
agreement to make statements in the House of Lords, and
therefore did not charge any indictable offence". Lush, J.
agreed. He said that he could not doubt that the charge was
of "a conspiracy to deceive the House of Lords, and so
frustrate the application, by means of making false
statements in the House. I am clearly of opinion that we
ought not to allow it to be doubted for a moment that the
motives or intentions of members of either House cannot be
inquired into by criminal proceedings with respect to
anything they may do or say in the House".
As we read Ex Parte Wason, the Court of Queen's Bench
found that wason desired criminal proceedings to be
commenced against three members of Parliament for conspiring
to make, and making statements in Parliament which he
alleged were untrue and made to harm his cause, The Court
held that criminal proceedings could not be taken in respect
of statements made by members of Parliament in Parliament
nor for conspiring to make them. ex parte Wason, therefore,
does not support Mr. Rao's submission that his client P.V.
Narasimha Rao and others of the alleged bribe givers who
were members of Parliament have "immunity from criminal
proceedings in a court of law with respect to the charge of
conspiracy in connection with the voting in Parliament on
the no-confidence motion". The speech or vote of the alleged
bribe giving members of Parliament is not in issue nor,
therefore, a conspiracy in this beheld. In contrast, all the
three alleged conspirators in Ex parte Wason were members of
Parliament and what was alleged against them was that they
had made false statements to Parliament in consequence of a
conspiracy. If what is alleged against members of Parliament
in India is that they had made false statements to, or voted
in, Parliament in consequence of a conspiracy, they would
immune from prosecution by reason of Article 105(2) itself
and no occasion would arise ton look into the privileges
enjoyed by the House of Commons under Article 105(3). To
repeat what we have said earlier, Mr. Rao is right, subject
to two caveats, in saying that Parliament has the power not
only to punish its members for an offence committed by them
but also to punish others who had conspired with them to
have the offence committed: first, the actions that
constitute the offence must also constitute a breach of
Parliament's privilege or its contempt; secondly, the action
that Parliament will take and the punishment it will impose
is for the breach of privilege or contempt. There is no
reason to doubt that the Lok Sabha can take action for
breach of privilege or contempt against the alleged bribe
givers and against the alleged bribe takers, whether or not
they were members of Parliament, but that is not to say that
the courts cannot take cognizance of the offence of the
alleged bribe givers under the criminal law.
Mr. Rao relied upon observations in the Eighteenth
Edition (197) of Erskine May's Treatise on The Law,
Privileges, Proceedings and Usage of Parliament. There is
before us the Twenty-second Edition. Part of what is
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contained in the earlier edition is not find in the later
edition. That May's treatise is an authoritative statement
on its subject has been recognised by this Court (Keshav
Singh's case, ibid). May's earlier edition stated, "It is
sometimes said that, since the privileges of Parliament do
not extend to criminal matters, therefore Members are
amenable to the course of criminal justice for offences
committed in speech or action in the House.........It may
prove to be true that things said or done in Parliament, or
some of them, are not withdrawn from the course of criminal
justice.....There is more doubt as to whether criminal acts
committed in Parliament remain within the exclusive
cognizance of the House in which they are committed.......".
Quoting Mr. Justice Stephen in Bradlaugh v.Gosset, where the
learned judge said that he "knew of no authority for the
proposition that an ordinary crime committed in the House of
Commons would be withdrawn from the ordinary course of
criminal justice", May observed that "it must be supposed
that what the learned judge had in mind was a criminal act
as distinguished from criminal speech". May went on to
state, "It is probably true, as a general rule, that a
criminal act done in the House is not outside the course of
criminal justice. But this rule is not without exception,
and both the rule and the exception will be found to depend
upon whether the particular act can or can not be regarded
as a proceeding in Parliament...........it would be hard to
show that a criminal act committed in the House by an
individual Member was part of the proceedings of the
House......Owing to the lack of precedents there is no means
of knowing what view the courts would take of a criminal act
committed in Parliament, or whether they would distinguish
action from speech in respect of amenability to the criminal
law. With regard to a crime committed in Parliament, the
House in which it was committed might claim the right to
decide whether to exercise its own jurisdiction or to hand
the offender over to the criminal courts. In taking this
decision, it would no doubt be guided by the nature of the
offence, and the adequacy or inadequacy of the penalties,
somewhat lacking in flexibility, which it could
inflict........In cases of breach of privilege which are
also offences at law, where the punishment which the House
has power to inflict would not be adequate to the offence,
or where for any other cause the House has thought a
proceeding at law necessary, either asa a substitute for, or
in addition to, its own proceeding, the Attorney General has
been directed to prosecute the offender".
May's Twenty-second Edition is more succinct, and this
is what it says :
"Moreover, though the Bill of
Rights will adequately protect a
Member as regards criminal law in
respect of anything said as part of
proceedings in Parliament, there is
more doubt whether criminal acts
committed in Parliament remain
within the exclusive cognizance of
the House in which they are
committed. In the judgment of the
House of Lords in Eliot's case (see
pp 73 and 84n), it was deliberately
left an open question whether the
assault on the Speaker might have
been properly heard and determined
in the King's bench. The
possibility that it might legally
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have been so determined was
admitted by one of the manager for
the commo ns in the conference with
the Lords which preceded the writ
of error. In Bradlaugh v. Gosset,
Mr. Justice Stephen said that he
'knew of no authority for the
proposition that an ordinary crime
committed in the House of Commons
would be withdrawn from the
ordinary course of criminal
justice". Since he went on
immediately to refer to Eliot's
case and accepted the proposition
"that nothing said in Parliament by
a Member, as such, can be treated
as an offence by the ordinary
courts', it must be supposed that
what the learned judge had in mind
was a criminal act as distinguished
from criminal speech.
In such cases, it will be
essential to determine where the
alleged criminal act stands in
relation to he proceedings of the
House. An officer carrying out an
order of the House is in the same
position as the Members who voted
the order. In Bradlaugh v Erskine,
the Deputy Serjeant at Arms was
heldto be justified on committing
the assault with which he was
charged, since it was committed in
Parliament, in pursuance of the
order of the House, to exclude
Bradlaugh from the House. As Lord
Coleridge observed, "The Houses
cannot act by themselves as a body;
they must act committed by a
Member, however, could form part of
the proceedings of the House, Apart
from Eliot's case 350 years ago, no
charge against a Member in respect
of an allegedly criminal act in
Parliament has been brought before
the courts. Were such a situation
to arise, it is possible that the
House in which the act was
committed might claim the right to
decide whether to exercise its own
jurisdiction. In taking this
decision, it would no doubt be
guided by the nature of the
offence, and the adequacy or
inadequacy of the penalties,
somewhat lacking in flexibility,
which it could inflict."
The learned Attorney General submitted, and the English
judgments and Reports dealt with earlier bear out the
submission, that the bribery of a member of the House of
Commons, acting in his Parliamentary capacity, did not , at
the time the Constitution came into effect, constitute an
offence under the English criminal law or the common law.
Clearly, therefore, no privilege or immunity attached in
England to an allegation of such bribery or an agreement or
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conspiracy in that behalf which could be imported into India
at the commencement of the Constitution under the provisions
of Article 105(3). Secondly, Article 105(@) provides for the
sum total of the privileges and immunity that attach to what
is said in Parliament and to votes given Therein. Article
105(3) are, therefore, not attached and they do not render
assistance to the alleged bribe givers.
Prevention of Corruption Act, 1988
In consider in the case on the Prevention of Corruption
Act, 1988 (the said Act) we shall not take account of what
we have already held and write as it were, upon a clean
slate. Some reference to the provisions of the said Act is
necessary at the threshold.
Section 2(b) of the said Act defines "public duty" thus:
"public duty" means a duty in the
discharge of which the State, the
public or the community at large
has an interest."
Section 2(c) of the said Act defines publice servant thus:
"(c) "public servant" means
(i) any person in the service or
pay of the Government or
remunerated by the Government by
fees or commission for the
performance of any public duty;
(ii) any person in the service or
pay of a corporation established by
or under a Central, Provincial or
State Act, or an authority or a
body owned or controlled or aided
by the Government or a Government
company as defined in Section 617
of the Companies Act, 1956 (1 of
1956);
(iv) any Judge, including any
person empowered by law to
discharge, whether by himself or
as a member of any body of persons,
any adjudicatory functions;
(v) any person authorised by a
court of justice to perform any
duty, in connection with the
administration of justice,
including a liquidator, receiver or
commissioner appointed by such
court;
(vi) any arbitrator or other person
to whom any cause or matter has
been referred for decision or
report by a court or justice or by
a competent public authority;
(vii) any person who holds an
office by virtue of which he is
empowered to prepare, publish,
maintain or revise an electoral
roll or to conduct an election or
part of an election;
(viii) any person who is the
president, secretary or other
office-bearer of a registered
cooperative society engages in
agriculture, industry, trade or
banking, receiving or having
received any financial aid from the
Central Government or a State
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Government or from any corporation
established by or under a Central
Provincial or State Act, or any
authority or body owned or
controlled or aided by the
Government or a Government company
as defined in Section 617 of the
Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman,
member or employee of any Service
Commission or Board, by whatever
name called, or a member of any
selection committee appointed by
such Commission or Board for the
conduct of any examination or
making any selection on behalf of
such Commission or Board.
(xi) any person who is a Vice-
Chancellor or member of any
governing body, professor, reader,
lecturer or any other teacher or
employee, by whatever designation
called, of any University and any
person whose services have been
availed of by a University or any
other public authority in
connection with holding or
conducting examinations;
(xii) any person who is an office-
bearer or an employee of an
educational, scientific, social,
cultural, or other institution, in
whatever manner established,
receiving or having received any
financial assistance from the
Central Government or any State
Government, or local or other
public authority.
Explanation 1. - Persons falling
under any of the above sub-clauses
are public servants, whether
appointed by the Government or
not.
Explanation 2. - Wherever the words
"public servant" occur, they shall
be understood of every person who
is in actual possession of the
situation of a public servant,
whatever legal defect there may be
in his right to hold that
situation."
Section 19 of the said Act deals withe the previous sanction
that is necessary for prosecution for the offences mentioned
therein. It read thus:"
"19. Previous sanction necessary
for prosecution. - (1) No court
shall take cognizance of an offence
punishable under Sections 7, 10,
11, 13 and 15 alleged to have been
committed by a public servant,
except withe the previous sanction,
(a) in the case of a person
who is employed in connection with
the affairs of the Union and is not
removable from his office save by
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or with the sanction of the Central
government, of that Government;
(b) in the case of a person
who is employed in connection with
the affairs of a State and is not
removable from his office save by
or with the sanction of the State
Government, of that Gpvernment.
(c) in the case of any other
person, of the authority competent
to remove him from his office.
(2) Where for any reason
whatsoever any doubt arises as to
whether the previous sanction as
required under sub-section (1)
should be given by the Central
Government or the State Government
or any other authority, such
sanction shall be given by that
Government or authority which would
have been competent to remove the
public servant from his office oat
the time when the offence was
alleged to have been committed.
(3) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), -
(a) no finding, sentence or
order passed by a Special Judge
shall be reversed or altered by a
court in appeal, confirmation or
revision on the ground of the
absence of, or any error, omission
or irregularity in, the sanction
required under sub-section(1),
unless in the opinion of that
court, a failure of justice has in
fact been occasioned thereby;
(b) no court shall stay the
proceedings under this Act on the
ground of any error, omission or
irregularity in the sanction
granted by the authority , unless
it is satisfied that such error,
omission or irregularity has
resulted in a failure of justice;
(c) no court shall stay the
proceedings under this Act or any
other ground and no court shall
exercise the powers of revision in
relation to any interlocutory order
passed in any inquiry, trial,
appeal or other proceedings.
(4) In determining under sub-
section (3) whether the absence of,
or any error, omission or
irregularity in, such sanction has
occasioned or resulted in a failure
of justice the court shall have
regard to the fact whether the
objection could and should have
been raised at any earlier stage in
the proceedings.
Explanation. - For the purposes of
this section, -
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(a) error includes competency
of the authority to grant sanction;
(b) a sanction required for
prosecution includes reference to
any requirement that the
prosecution shall be at the
instance of a specified authority
or with sanction of a specified
person or any requirement of a
similar nature.
Section 7, mentioned in Section 19, defined the offence of a
public servant taking gratification other than legal
remuneration in respect of an official act and the penalty
therefor. Section 10 sets out the punishment for abetment by
a public servant of offences defined in Section 8 or 9.
Section 11 defines the offence of a public servant obtaining
a valuable thing, without consideration, from a person
concerned in a proceeding or business transacted by such
public servant, and the penalty therefor. Section 13 defines
the offence of criminal misconduct by a public servant and
the penalty therefor. Section 15 sets out the punishment for
an attempt to commit an offence under Section 13 (1) (c) or
(d).
The offences with which the appellants are charged are
those set out in Section 120(B) of the Indian Penal Code
with Section 7, Section 12 Section 13(1)(d) and Section
13(2) of the said Act. (We do not here need to deal with the
offence under Section 293 of the Indian Penal Code with
which some of the accused are charged). These provisions
read thus:
"Section 120-B (of the Indian Penal
Code). Punishment of criminal
conspiracy. - (1) Whoever is a
party to a criminal conspiracy to
commit an offence punishable with
death, imprisonment for life or
rigorous imprisonment for a term of
two years or upwards, shall, where
no express provision is made in the
Code for the punishment of such a
conspiracy, be punished in the same
manner as if he had abetted such
offence.
(2) Whoever is a party to a
criminal conspiracy other than a
criminal conspiracy to commit an
offence punishable as aforesaid
shall be punished with imprisonment
of either description for a term
not exceeding six months, or with
fine or with both.
Section 7 (of the said Act). Public
servant taking gratification other
than legal remuneration in respect
of an official act. - Whoever,
being, or expecting to be a public
servant, accepts or obtains or
agrees to accept or attempts to
obtain from any person for himself
or for any other person, any
gratification whatever, other than
legal remunerations, as a motive or
reward for doing or forbearing to
do any official act or for showing
or forbearing to show, in the
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exercise of his official functions,
favoure or disfavour to any person
or for rendering or attempting to
render any service or disservice to
any person, with the Central
Government or Parliament or the
Legislature of any State or with
any local authority, corporation or
Government company referred to in
clause (c) of Section 2, or with
any public servant, whether named
or other wise , shall be punishable
with imprisonment which shall be
not less than six months but which
may extend to five years and shall
also be liable to fine.
Explanations. - (a) "Expecting to
be a public servant." If a person
not expecting to be in office
obtains a gratification by
deceiving others into a belief that
he is about to be in office, and
that he will then serve them, he
may be guilty of cheating, but he
is not guilty of the offence
defined in this section.
(b) "Gratification." The word
"gratification" is not restricted
to pecuniary gratifications or to
gratifications estimable in money.
(c) "Legal remuneration." The
words "legal remuneration" are not
restricted to remuneration which a
public servant can lawfully demand,
but include all remuneration which
he is permitted by the Government
or the organisation, which he
serves, to accept.
(d) "A motive or reward for
doing." A person who receives a
gratification as a motive or reward
for doing what he does not intend
or is not in a position to do, or
has not done, comes within this
expression.
(e) Where a public servant
induces a person erroneously to
believe that his influence with the
Government has obtained a title for
that person and thus induces that
person to give the public servant,
money or any other gratification as
a reward for this services, the
public servant has committed an
offence under this section.
Section 12. Punishment for abetment
of offences defined in section 7 or
11 - Whoever abets any offence
punishable under Section 7 or
Section 11 whether or not that
offence is committed in consequence
of that abetment, shall be
punishable with imprisonment for a
term which shall be not less than
six months but which may extend to
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five years and shall also be liable
to fine.
Section 13. Criminal misconduct by
a public servant. - (1) A public
servant is said to commit the
offence of criminal misconduct, -
(a) if he habitually accepts
or obtains or agrees to accept or
attempts to obtain from any person
for himself or for any other person
any gratification other than legal
remuneration as a motive or reward
such as is mentioned in Section 7;
or
(b) if he habitually accepts
or obtains or agrees to accepts or
attempts to obtain for himself or
for any other person, any valuable
thing without consideration which
he knows to be inadequate from any
person whom he knows to have been,
or to be, or to be likely to be
concerned in any proceeding or
business transacted or about to be
transacted by him, or having any
connection with the official
functions of himself or of any
public servant to whom he is
subordinate, or from any person
whom he knows to be interested in
or related to the person so to do;
or
(c) if the dishonestly or
fraudulently misappropriates or
otherwise converts for his own use
any property entrusted to him or
under his control as a public
servant or allows any other person
so to do; or(d) if he, -
(i) by corrupt or illegal
means, obtains for himself or for
any other person any valuable thing
or pecuniary advantage; or
(ii) by abusing his position
as a public servant, obtains for
himself or for any other person any
valuable thing or pecuniary
advantage; or
(iii) while holding office as
a public servant, obtains for any
person any valuable thing or
pecuniary advantage without any
public interest; or
(e) if he or any person on his
behalf, is in possession or has, at
any time during the period of his
office, been in possession for
which the public servant cannot
satisfactorily account, of
pecuniary resources or property
disproportionate to his known
sources of income.
Explanation. - For the purposes of
this section, "known sources of
income" means income received from
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any lawful source and such receipt
has been intimated in accordance
with the provisions of any law,
rules or orders in accordance with
the provisions of any law, rules or
orders for the time being
applicable to a public servant.
(2) Any public servant who
commits criminal misconduct shall
be not less than one year but which
may extend to seven years and shall
also be liable to fine."
The said Act replaced the Prevention of Corruption Act,
1947 (the 1947 Act). The said Act was enacted "to
consolidate and amend the law relating to the prevention of
corruption and for matters connected therewith" Its
Statements of Objects and Reasons reads thus:
"Statement of Object and
Reasons - 1. The Bill is intended
to make the existing anti-
corruption laws more effective by
widening their coverage and by
strengthening the provisions.
2. The Prevention of
Corruption act, 1947, was amended
in 1964 based on the
recommendations of the Santhanam
Committee. There are provisions in
Chapter IX of the Indian Penal Code
to deal with public servants and
those who abet them by way of
criminal misconduct. There are also
provisions in the Criminal Law
Amendment Ordinance, 1944, to
enable attachment of ill-gotten
wealth obtained through corrupt
means, including from transferees
of such wealth. The Bill seeks to
incorporate all these provisions
with modifications so as to make
the provisions more effective in
combating corruption among public
servants.
3. The Bill, inter alia,
envisages widening the scope of the
definition of the expression
"public servant", incorporation of
offences under Sections 161 to 165-
A of the Indian Penal Code,
enhancement of penalties provided
for these offences and
incorporation of a provision that
the order of the trial court
upholding the grant of sanction for
prosecution would be final if it
has not already been challenged and
the trial has commenced. In order
to expedite the proceedings,
provisions for day-to-day trial of
cases and prohibitory provisions
with regard to grant of stay and
exercise of powers of revision on
interlocutory orders have also been
included.
4. Since the provisions of
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Sections 161 to 161-A are
incorporated in the proposed
legislation with an enhanced
punishment it is not necessary to
retain those sections in the Indian
Penal Code. Consequently, it is
proposed to delete those sections
with the necessary saving
provision.
5. The notes on clauses
explain in detail the provisions of
the Bill."
In the 1947 Act the definition of "public servant" in
the Indian Penal Code was adopted, Section 21 whereof reads
as follows:
21. "Public servant". - The
words "public servant" denote a
person falling under any of the
descriptions hereinafter following,
namely:
First. - [Repealed by the
Adaptation of Lawsorder,1950.]
Second. - Every Commissioned
Officer in the Military, Naval or
Air Forces of India;
Third. - every Judge including
any person empowered by law to
discharge, whether by himself or as
a member of anybody of persons, any
adjudicatory functions;
Fourth. - Every officer of a
Court of Justice (including a
liquidator, receiver or
commissioner) whose duty it is, as
such officer, to investigate or
report on any matter of law or
fact, or to make, authenticate, or
keep any document, or to take
charge or dispose of any property,
or to execute any judicial process,
or to administer any oath, or to
interpret, or to preserve order in
the Court, and every person
specially authorised by a court of
Justice to perform any of such
duties;
Fifth. - every juryman,
assessor, or member of a panchayat
assisting a Court of Justice or
public servant;
Sixth. - Every arbitrator or
other person to whom any cause or
matter has been referred for
decision or report by any Court of
Justice, or by any other competent
public authority;
Seventh. - Every person who
holds any office by virtue of which
he is empowered to place or keep
any person in confinement;
Eighth. - Every officer of the
Government whose duty it is, as
such officer, to prevent offences,
to give information of offences, to
bring offenders to justice, or to
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protect the public health, safety
or convenience;
Ninth. - Every officer whose
duty it is, as such officer, to
take, receive, keep or expend any
property on behalf of the
Government, or to make any survey,
assessment or contract on behalf of
the Government, or to execute any
revenue-process, or to investigate,
or to report, on any matter
affecting the pecuniary interests
of the Government, or to make,
authenticate or keep any document
relating to the pecuniary interests
of the Government, or to prevent
the infraction of any law for the
protection, of the pecuniary
interests of the Government;
Tenth. - Every officer whose
duty it is, as such officer, to
take, receive, keep or expend any
property, to make any survey or
assessment or to levy any rate or
tax for any secular common purpose
of any village, town or district,
or to make, authenticate or keep
any document for the ascertaining
of the rights of the people of any
village, town or district;
Eleventh. - Every person who
holds any office in virtue of which
he is empowered to prepare,
publish, maintain or revise an
electoral roll or to conduct an
election or part of an election;
Twelfth. - Every person -
(a) in the service or pay of
the Government or
remunerated by fees or
commission for the
performance of any public
duty by the Government;
(b) in the service or pay of a
local authority, a
corporation established
by or under a Central,
Provincial or State Act
or a Government company
as defined in Section 617
of the Companies Act,
1956 (1 of 1956)."
Section 6 of the 1947 Act dealt with the previous sanction
necessary for prosecution. It read thus :
"6. Previous sanction
necessary for prosecution. - (1)
No court shall take cognizance of
an offence punishable under Section
161 or Section 164 or section 165
of the Indian Penal Code (45 of
1860), or under sub-section (3A) of
Section 5 of this Act, alleged to
have been committed by a public
servant, except with the previous
sanction.
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(a) in the case of a person who is
employed in connection with the
affairs of the Union and is not
removable from his office save by
or with the sanction of the Central
Government, of the Central
Government;
(b) in the case of a person who is
employed in connection with the
affairs of a State and is not
removable from his office save by
or with the sanction of the State
Government;
(c) in the case of any other
person, of the authority competent
to remove him from his office.
(2) Where for any reason
whatsoever any doubt arises whether
the previous sanction as required
under sub-section (1) should be
given by the Central or State
Government or any other authority,
such sanction shall be given by
that Government or authority which
would have been competent to remove
the public servant from his office
at the time when the offence was
alleged to have been committed."
It is not in dispute that the prosecutions against all
the accused have not received the previous sanction
contemplated by Section 19 of the said Act.
Mr. P.P. Rao submitted that a Constitution Bench had
in the case of R.S. Nayak v. A.R. Antulay, 1984 (2) S.C.R.
495, held that a member of a State legislature was not
a public servant, but that the finding therein that he
performed a public duty was erroneous and required
reconsideration. The expression 'public duty' in Section
2(b) of the said Act meant a duty in the context of a
interest which could be enforced at law. A mandamus could
not issue to a member of Parliament or a member of a State
legislature to perform his duty for he could not be
compelled to speak or to vote. It was permissible to refer
to the speech in Parliament of the Minister who had moved
the Bill that became the said Act. He had stated, in
response to a question about the position of a member of
Parliament or a member of a Legislative Assembly , thus:
"............We have not done anything different or contrary
to the law as it stands today. Under the law, as it stands
today, the Supreme Court has held in Antulay's case that a
Member of a Legislative Assembly is not a public servant
within the meaning of Section 21 of the Indian Penal Code."
That this was really the position was supposed by the fact
that two conditions had to be satisfied for the purposes of
bringing someone within the purview of the said Act, namely,
that he should be a public servant (Section 2) and there
should be an authority competent to remove him from his
office (Section 19). In this behalf, reliance was placed
upon the judgement in K. Veeraswamy vs. Union of India, 1991
(3) S.C.R. 189. The judgment of the Delhi High Court under
appeal noted that it was not disputed that there was no
authority competent to remove members of Parliament from
their office. This had also been found by the Orissa High
Court in Habibullah Khan vs. State of Orissa, (1993) Cr.L.J.
3604. A member of Parliament and a member of a State
legislature did not hold an office. Section 2 (c)(viii) of
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the said Act postulated the existence of an office
independent of the person holding it, and that by virtue of
the office, the holder was authorised or required to perform
a public duty. That a member of Parliament did not hold an
office was apparent from the Constitution. Whereas the
Constitution spoke of other functionaries holding offices,
members of Parliament were said to occupy seats. The
conclusion, therefore, was inescapable that the accused
could not be prosecuted under the said Act and the charges
had to be quashed. Mr. D.D. Thakur echoed these submissions.
He added that it was legally permissible, but morally
impermissible, for a legislator to vote in exchange for
money. The clauses of Section 2(c) had to be constructed
ejusdem generis and, so read, could not cover members of
Parliament or the State legislatures. Having regard to the
he fact that the Minister had made a representation to
Parliament when the Bill was being moved that it did not
cover members of Parliament and the State legislatures, it
could not be argued on behalf of the Union Government, by
reason of the principle of promissory estoppel, that the
said Act covered members of Parliament and the State
legislatures. The said Act only removed the surplusage in
the then existing definition of "public servant" and had to
be construed only in that light. The inclusion of members of
Parliament in the said Act was not "clearly implicit" nor
"irresistibly clear." A member of Parliament had only
privileges given to him under the Constitution; his only
obligation was to remain present for a given number of days.
Mr. Sibbal adopted the arguments of Mr. Rao. He added that
the Constitution cast no duty or obligation upon a member
of Parliament. Consequently, there was no authorisation or
requirement to perform a duty under the provisions of
Section 2(c)(viii) of the said Act. An authority competent
to remove a public servant necessarily contemplated an
authority competent to appoint him. There was no authority
competent to appoint a member of Parliament and, therefore,
there was no authority which could remove him.
The Attorney General submitted that the object behind
enacting the said Act was to widen the coverage of the anti-
corruption laws, as had been stated in its Statement of
Object and Reasons. 'Public office' had been defined in
Blacks Law Dictionary (Sixth edition, pg 1082) thus, "the
right, authority, and duty created and conferred by law, by
which for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of
government for the benefit of the public. An agency for the
state, the duties of which involve in their performance the
exercise of some portion of sovereign power, either great or
small." The Shorter Oxford Dictionary (page 1083) defined
"Office" thus, "A position to which certain duties are
attached, esp. a place of trust, authority or service under
constituted authority." In Antulay's case it had been held
that a member of a legislative assembly "performs public
duties cast on him by the Constitution and his electorate".
That a member of Parliament occupied an office had been the
view taken in the cases of Bunting and Boston (referred to
above). A member of Parliament performed the sovereign
function of law making and in regard to the exchequer. He
had a fundamental duty to serve. He undertook high public
duties which were inseparable from his position. A member of
Parliament, therefore, held an office. The Constitution
provided the number of seats for members of Parliament. The
tenure of a member of Parliament was fixed. He received a
salary and other allowances. It was clear from the
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Constitution that he performed public duties. The oath that
he took referred to his obligation to "faithfully discharge
the duty" upon which he was about to enter. The Salary,
Allowances and Pension of Members of Parliament Act, 1954,
specified that a member of Parliament was entitled to
receive a salary per mensem "during the whole of his term of
office" and an allowance per day "during any period of
residence on duty" . The accused, other than D.K.
Adikeshavulu and M. Thimmagowda, were, therefore, public
servants within the scope of the said Act and could be
charged thereunder. Reference to the provisions of Section
19 of the said Act and to the Minister's speech on the Bill
that became the said Act was, consequently, not called for.
The provisions of Section 19 were attracted only when a
public servant had an authority which was competent to
remove him. Where, as in the case of a member of Parliament
or a State legislature, there was no authority which was
competent to remove a public servant, the provisions of
section 19 were not attracted and a prosecution could be
launched and taken cognizance of without previous sanction.
Alternatively, the authority to remove a member of
Parliament was the President under the provisions of Article
103 of the Constitution.
There can be no doubt that the coverage of Section 2(c)
of the said Act is far wider than that of Section 21 of the
Indian penal Code. The two provisions have only to be
looked at side by side to be sure that more people can now
be called public servants for the purposes of the anti-
corruption law. There is, therefore, no reason at all
why Section 2(c) of the said Act should be construed only
in the light of the existing law and not on its own terms.
It is for the Court to construe Section 2(c). If the Court
comes to the conclusion that members of Parliament and the
State legislatures are clearly covered by its terms, it
must so hold. There is then no reason to resort to
extraneous aids of interpretation such as the speech of the
Minister piloting the Bill that became the said Act. The
true interpretation of a statute does not depend upon who
urges it. The principle of promissory estoppel has no
application in this behalf. Further., if the court comes to
the conclusion, based on Section 2(c) itself, that members
of Parliament and the State legislators are, clearly, public
servants, no resort to the provisions of Section 19 is
required in this regard. The words "public servant" in
Section 19 must then bear that meaning that is attributed
to them on the construction of the definition thereof in
Section 2(c).
A public servant is "any person who holds an office by
virtue of which he is authorised or required to perform any
public duty." Not only, therefore, must the person hold an
office but he must be authorised or required by virtue of
that office to perform a public duty. Public duty is defined
by Section 2(b) of the said Act to mean "a duty in the
discharge of which the State, the public or that community
at large has an interest." In a which the State, the public
or that community at large has an interest." In a
democratic form of Government it is the member of
Parliament or a State legislature who represents the people
of his constituency in the highest law making bodies at the
Centre and the State respectively. Not only is he the
representative of the people in the process of making the
laws that will regulate their society, he is their
representative in deciding how the funds of the Centre and
the States shall be spent and in exercising control over the
executive. It is difficult to conceive of a duty more public
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than this or of a duty in which the State, the public and
the community at large would have greater interest. The
submission that this Court was in error in Antulay's case in
holding that a member of a State legislature "performs
public duties cast on him by the Constitution and his
electorate" must be rejected outright. It may be - we
express no final opinion - that the duty that a member of
Parliament or a State legislature performs cannot be
enforced by the issuance of a writ of mandamus but that is
not a sine qua non for a duty to be a public duty. We reject
the submission, in the light of what we have just said, that
a member of Parliament has only privileges, no duties.
Members of Parliament and the State legislatures would do
well to remember that if they have privileges it is the
better to perform their duty of effectively and fearlessly
representing their constituencies.
In Antulay's case the question relevant for our purpose
was whether a member of a Legislative Assembly was a public
servant within the meaning of that expression in clauses
12(a),(3) and (7) of section 21 of the Indian Penal Code.
These Clauses read thus:
21. The words 'public servant'
denote a person falling under any
of the descriptions hereinafter
following, namely:
Third- Every Judge including
any person empowered by law to
discharge, whether by himself or
as a member of, any body of
persons, any adjudicatory
functions.
Seventh - Every person who
holds any office by virtue of which
he is empowered to place or keep
any person in confinement.
Twelfth - Every person -
(a) in the service or pay of
the Government or remunerated by
fees or commission for the
performance of any public duty by
the Government."
This Court held that a member of a Legislative Assembly did
not satisfy the ingredients of these clauses and that,
therefore, he was not a public servant within the meaning of
that expression in Section 21 of the Indian Penal Code. It
was in this context that this Court made the observation
that we have already quoted. Having regard to the fact that
there was no clause in section 21 of the Indian Penal Code
which is comparable to Section 2(c)(viii) of the said Act,
the decision in Antulay's case is of little assistance in
this context.
The judgment of the Orissa High Court in the case of
Habibulla Khan is of assistance because it considered
whether a member of a Legislative Assembly was a public
servant within the meaning of Section 2(c)(viii) of the
said Act. Paragraphs 5,7,8 and 9 of the principle
judgment are relevant. ***ney read thus:
"5. For the aforesaid clause
to be attracted, two requirements
must be satisfied; (i) an M.L.A.
must hold an office: and (ii) he
must perform public duty by virtue
of holding that office. The meaning
of the word 'office' has been the
subject-matter of various decisions
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of the apex Court and Shri Rath in
his written note dated 27-4-1993
has dealt with these decisions in
pages 6 to 12, in which reference
has been made to what was held in
this regard in (1) Maharaj Shri
Govindlal Jee Ranchhodlal jee v.
C.I.T., Ahmedabad, 34 ITR 92 : (AIR
1959 Bom 100) (which is a judgment
of Bombay High Court rendered By
Chagla, C.J.); (2) Champalal v.
State of Madhya Pradesh, AIR 1971
MP 88, in which the definition of
the word "office" given in Corpus
Juris Secundum "A position or
station in which a person is
employed to perform certain duty"
was noted; (3) Statesman v. H.R.
Deb, AIR 1968 SC 1495: (1968 Lab IC
1525) which is a rendering by a
Constitution Bench stating "an
office means no more than a
position to which certain duties
are attached"; (4) Kanta Kathuria
v. Manikchand, AIR 1970 SC 694, in
which Hidayatulla, C.J., on behalf
of self and J.K. Mitter, J., who
were in minority, after referring
to the Constitution Bench decision
in Stasteman's case referred to the
observations of Lord Wright in Mc
Millan v. Guest, 1942 Ac 561, that
the meaning of the word 'office'
covered four columns of the New
English Dictionary, but the one
taken as most relevant was "(a)
position or place to which certain,
duties are attached, especially one
of more or less public character";
whereas Sikri, J, speaking for the
majority referred to the definition
given by Lord Atkin, which was "a
subsisting permanent, substantive
position which had an existence
independent of the person who
filled it, which went on and was
filled in succession by successive
holders" by further stating that
there was no essential difference
between the definitions given by
Lord Wright and Lord Atkin: and
(5) Madhukar v. Jaswant, AIR 1976
SC 2283, in which the definition
given in the Stateman's case was
quoted with approval.
xxx xxx xxx
7. Shri Das, learned
Government Advocate, does not
contest the submission of Shri Rath
that the word 'office' should mean,
to repeat, no more than a position
to which certain duties are
attached, specially of a public
character". Let it be seen as to
whether the test mentioned by
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Sikri, J, is satisfied, which, as
already noted, is that there must
be an office which exists
independently of the holder of that
office. To substantiate this part
of his submission, Shri Rath has
referred in his written note first
to Article 168 of the Constitution
which has proved that for every
State there shall be a Legislature
which shall consist of the
Governor, and in case of some
States, two Houses and in case of
others one House. Article 170
states that the Legislative
Assembly of each State shall
consist of not more than 500 and
not less than 60 members chosen by
direct election from the
territorial constituencies in the
State for which purpose the State
is divided into equal number of
territorial constituencies. In
Article 172, duration of the
Legislative Assembly has been
specified to be for five years,
and Article 173 deals with the
conditions of eligibility.
Reference is than made to certain
provisions of the Representation of
the People Act, 1950, which has
provided for total number of seats
in the Legislative Assembly, and so
far as Orissa is concerned, the
Second Schedule mentions that the
Orissa Legislative Assembly shall
consist of 147 members.
8. Relying on the aforesaid
provisions, it is contended and
rightly, by Shri Rath that the
office of the M.L.A. is created by
the Constitution read with the
Representation of the People Act,
1950, whereas the actual election
of M.L.As. is supervised, directed
and controlled by the provisions
contained in Articles 324 to 329 of
the Constitution and the provisions
of the Representation of the People
Act, 1951, which brings home the
distinction between "office" and
"holder of the office".
9. The aforesaid submission
appears to us to be unassailable.
We would, therefore, accept the
same by stating that an M.L.a. does
hold an office, which is one of the
two necessary requirements to
attract the definition of "public
servant", as given in clause (viii)
of the Act. Another requirement, as
already mentioned, is performance
of public duty as holder of such
office. This aspect has been dealt
with by Shri Rath in paragraph 7 of
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his written note wherein mention
has been made about various
duties attached to the office of
the M.L.A., as would appear from
Chapter III of Part VI of the
Constitution - the same being,
making of laws, acting conjointly
to effectively control the
activities of the executive,
approval of the finance bill, etc.
Indeed, no doubt can be entertained
in this regard in view of what was
stated in paragraph 59 of Antulay's
case, which is as below:-
".....it would be rather
difficult to accept an unduly wide
submission that M.L.A. is not
performing any public duty. However
it is unquestionable that he is not
performing any public duty either
directed by the Government or for
the Government. He no doubt
performs public duty cast on him by
the Constitution and his
electorate. He thus discharges
constitutional functions.....""
Having held that a member of a Legislative assembly was a
public servant under the said Act, the Orissa High Court
went on to consider which authority was competent to give
sanction for his prosecution. That is an aspect with which
we are not immediately concerned and we shall revert to this
judgment later.
We think that the view of the Orissa High Court that a
member of a Legislative Assembly is a public servant is
correct. Judged by the test enunciated by Lord Atkin in Mc
Millan v. Guest and adopted by Sikri, J, in Kanta Kathuria's
case, the position of a member of Parliament, or of a
Legislative Assembly, is subsisting, permanent and
substantive; it has an existence independent of the person
who fills it and it is filled in succession by successive
holders. The seat of each constituency is permanent and
substantiative. It is filled, ordinarily for the duration of
the legislative term, by the successful candidate in the
election for the constituency. When the legislative term is
over, the seat is filled by the successful candidate at the
next election. There is, therefore, no doubt in our minds
that a member of Parliament, or of a Legislative Assembly,
holds an office and that he is required and authorised
thereby to carry out a public duty. In a word, a member of
Parliament, or of a Legislative Assembly, is a public
servant for the purposes of the said Act.
This brings us to the issue of sanction under the
provisions of Section 19 of the said Act. The Section has
been quoted, Sub-section (1) opens with the words "No court
shall take cognizance of an offence punishable under
Sections 7, 10, 11, 13 and 15. Secondly, the person charged
must be a public servant at the point of time the court is
asked to take cognizance; that is the material time for the
purposes of the Section. Thirdly, the sanction must proceed
cognizance; it must be prior sanction. Fourthly, and this
from the point of view of this judgement is most material,
the Section covers all public servants. In order words, if
any public servant is charged with an offence punishable
under the aforesaid sections, the court shall not take
cognizance in the absence of sanction. That the Section
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applies to all public servants is also clear from the three
clauses of sub-section(1). Clause (a) says that the sanction
must be of the Central Government in the case of a public
servant who is employed in connection with the affairs of
the Union and is not removable from his office save by or
with the sanction of the Central Government. Clause (b)
says that the sanction must be of a State Government in the
case of a public servant who is employed in connection with
the affairs of that State and is not removable from his
office save by or with the consent of that State Government.
Clause (c) says that the sanction in the case of any other
public servant must be of the authority competent to remove
him from his office. Clause (c) is the basket into which
all public servants, other than those covered by the terms
of clauses (a) and (b), fall
Upon the plain language of sub-section (1) of Section
19, analysed above, the argument of the learned Attorney
General that the provisions of Section 19 are applicable
only to a public servant who is removable from his office by
an authority competent to do so must fail.
In support of the argument, the learned Attorney
General relied upon the judgment of this Court in S.A.
Venkataraman vs. The State, 1958 S.C.R. 1040, in which, with
reference to the provisions of Section 6 of the 1947 Act, it
was observed :
" When the provisions of s.6
of the Act are examined it is
manifest that two conditions must
be fulfilled before its provisions
become applicable. One is that the
offences mentioned therein must
be committed by a public servant
and the other is that that person
is employed in connection with the
affairs of the Union or a State and
is not removable from his office
save by or with the sanction of the
Central Government or the State
Government or is a public servant
who is removable from his office
by any other competent authority.
Both these conditions must be
present to prevent a court from
taking cognizance of an offence
mentioned in the section without
the previous sanction of the
Central Government or the State
Government or the authority
competent to remove the public
servant from his office. If either
of these conditions is lacking, the
essential requirements of the
section are wanting and provisions
of the section do not stand in the
way of a court taking cognizance
without a previous sanction."
The appellant was a public servant who had been dismissed
from service consequent upon a departmental inquiry. After
his dismissal he was charged with the offence of criminal
misconduct under the 1947 Act and convicted. The appellant
contended that no court could have taken cognizance of the
charge against him because there was no prior sanction under
Section 6 of the 1947 Act. This Court found, as aforestated,
that for the applicability of Section 6 two conditions had
to be fulfilled, namely, (i) the offence should have been
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committed by a public servant and (ii) the public servant is
removable from his office by the Central Government or a
State Government or a competent authority. This Court held
that sanction was not a pre-requisite to the cognizance of
the offence with which the appellant was charged and
conditions were not satisfied because, when cognizance of
the offence was taken, the appellant had ceased to be a
public servant. That the appellant was a public servant was
not in dispute; that no sanction had been obtained was also
not in dispute. This Court was not concerned with a
situation in which there was a public servant but there was
no authority competent to remove him from his office. The
observations of this Court quoted above were made in the
context of the facts of the case and relative thereto. They
cannot be examined de hors the facts and read as supporting
the proposition that the provisions of Section 19 are
applicable only to a public servant who is removable from
his office by an authority competent to do so and, if there
is no authority competent to remove a public servant from
his office, the embargo arising under Section 19 is not
attracted and Section 19 does not come in the way of a court
taking cognizance. In any event, we cannot, with great
respect, agree that the observations fully analyse the
provisions of Section 19. We have set out above how we read
it; as we read it, it applies to all who are public servants
for the purposes of the said Act.
It is incorrect to say that Section 19 contemplates
that for every public servant there must be an authority
competent to remove him from his office and that, therefore,
the effort must be to identify that authority. But if no
authority can be identified in the case of a public servant
or a particular category of public servant, it cannot lead
to the conclusion that was urged on behalf of the accused,
namely, that he is not a public servant or this is not a
category of public servant within the meaning of the said
Act. We have found, based on the language of Section
2(c)(viii) read with Section 2(b), that members of
Parliament are public servants. That finding, based upon the
definition section, must apply to the phrase 'public
servant' wherever it occurs in the said Act. It cannot
change if it be found that there is no authority competent
to remove members of Parliament from office. Members of
Parliament would, then, not be liable to be prosecuted for
offences under the said Act other than those covered by
sections 7, 10, 11,13 and 15.
The Attorney General drew our attention in this context
to the conclusion of the Orissa High Court in the case of
Habibullah Khan aforementioned. The Orissa High Court found
that there was no authority which could grant previous
sanction, as contemplated by Section 19 of the Act, in the
case of a member of a Legislative Assembly. Counsel, the
High Court recorded, did not contend that even if there be
no person competent to give sanction for prosecuting a
member of a Legislative Assembly under the said act,
nonetheless sanction for his prosecution had to be obtained
because he was a public servant. The High Court was
satisfied that although "an M.L.A. would come within the
fold of the definition of 'public servant', as given in
Section 2(c) of the Act, he is not the type of 'public
servant' for whose prosecution under the Act, previous
sanction as required by Section 19 is necessary. We require
realise the anomaly of our conclusion, because though
Section 19 of the Act makes no distinction between one
public servant and another for the purpose of previous
sanction, we have made so. But this is a result which we
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could not have truly and legally avoided."
We do not think that the view of the Orissa High Court
stated above is correct. Since Section 6 of the 1947 Act and
Section 19 of the said Act make no distinction between one
public servant and another for the purpose of previous
sanction, the conclusion must be that where the Court finds
that there is no authority competent to remove a public
servant, that public servant cannot be prosecuted for
offences punishable under Sections 7,10,11,13 and 15 of the
said Act because there is no authority that can sanction
such prosecution.
This Court in the case of K. Veeraswami v. Union of
India and others, [1991] 3 S.C.R. 189, considered the
applicability of the 1947 Act to a Judge of a High Court or
the Supreme Court. A case under the provisions of Section
5(2) read with Section 5(1)(e) of the 1947 Act had been
registered against the appellant, the Chief Justice of a
High Court, and on 28th February, 1976, an F.I.R. was filed
in the Court of Special Judge. The appellant retired on
attaining the age of superannuation on 8th April, 1976. On
15th December, 1977 , a charge sheet was filed and process
was issued for appearance of the appellant. The appellant
moved the High Court to quash the proceedings. The High
Court dismissed the application but granted certificate of
fitness to appeal. This Court, by a majority, concluded
that a Judge of a High Court and the Supreme Court was a
public servant within the meaning of Section 2 if the 1947
Act. A prosecution against him could be lodged after
obtaining the sanction of the competent authority under
Section 6 of the 1947 Act. For this purpose, the President
of India was the authority to give previous sanction. No
criminal case could be registered against a Judge of a High
Court unless the Chief Justice of India was consulted. Such
consultation was necessary also at the stage of examining
whether sanction for prosecution should be granted, which
should be guided by and in accordance with the advice of the
Chief Justice of India. Specifically, the majority view was
that a public servant could not be prosecuted for the
offences specified in Section 6 of the 1947 Act unless
there was prior sanction for prosecution from a competent
authority. A Judge of the superior courts squarely fell
within the purview of the 1947 Act. The second requirement
under clause (c) of Section 6(1) was that for the purpose of
granting sanction for his prosecution there must be an
authority and the authority must be competent to remove
him. It was, therefore, "now necessary to identify such
authority......".
The learned Attorney General laid stress upon this
observation. He submitted that the court should identify the
authority competent to remove a member of Parliament, or a
State Legislature, from his office if it found such member
to be a public servant within the meaning of Section 2(c)
and did not accept his contention that the provisions of
Section 19 did not apply, there being no authority competent
to remove such member from his office. In other words, it
was the alternative submission of the learned Attorney
General that there was an authority competent to remove such
member from his office : in the case of a member of
Parliament it was the President and in the case of a member
of a State Legislature it was the Governor of the State. We
shall address ourselves to the submission in a moment.
The passage in Veeraswamy's case relied upon by learned
counsel for the appellants is contained in the dissenting
judgment of Verma, J.
He said :
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"Clauses (a),(b) and (c) in
sub-section (1) of Section 6
exhaustively provide for the
competent authority to grant
sanction for prosecution in case of
all the public servants falling
within the purview of the Act.
Admittedly, such previous sanction
is a condition precedent for taking
cognizance of an offence punishable
under the Act, of a public servant
who is prosecuted during his
continuance in the office. It
follows that the public servant
falling within the purview of the
Act must invariably fall within one
of the three clauses in sub-section
(1) of Section 6. It follows that
the holder of an office, even
though a 'public servant'
according to the definition in the
Act, who does not fall within any
of the clauses (a), (b) or (c) of
sub-section (1) of Section 6 must
hold to be outside the purview of
the Act since this special
enactment was not enacted to cover
that category of public servants
inspite or the wide definition of
'public servant' in the Act. This
is the only manner in which these
provisions of the Act can be
harmonized and given full effect.
The scheme of the Act is that a
public servant who commits the
offence of criminal misconduct, as
defined in the several clauses of
sub-section(1) of Section 5, can
be punished in accordance with sub-
section (1) of Section 5, can be
punished in accordance with sub-
section (2) of Section 5, after
investigation of the offence in the
manner prescribed and with the
previous sanction of the competent
authority obtained under Section 6
of the act in a trial conducted
according to the prescribed
procedure. The grant of previous
sanction under Section 6 being a
condition precedent for the
prosecution of a public servant
covered by the Act, it must follow
that the holder of an office who
may be a public servant according
to the wide definition of the
expression in the Act but whose
category for the grant of sanction
for prosecution is not envisaged by
Section 6 of the Act, is outside
the purview of the Act, not
intended to be covered by the act.
This is the only manner in which a
harmonious constitution of the
provisions of the Act can be made
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for the purpose of achieving the
object of that enactment."
We are unable, with respect, to share this view in the
dissenting judgment. It does not appear to take into
reckoning the fact that sanction is not a pre-requisite for
prosecution for all offences under the statute but is
limited to those expressly specified in the sanction
provision. Secondly, the question as to whether or not a
person is a public servant within the meaning of the statute
must be determined having regard to the definition of a
public servant contained in the statute. If the person is
found to be a public servant within the meaning of the
definition, he must be taken to be a public servant within
the meaning of the definition, he must be taken to be a
public servant for the purposes of all provisions in the
statute in which the expression 'public servant' occurs. If
therefore, a person is found to satisfy the requirements of
the definition of a public servant, he must be treated as a
public servant for the purposes of the sanction provision.
In our opinion, it cannot be hold, as a consequence of the
conclusion that there is no authority competent to remove
from office a person who falls within the definition of
public servant, that he is not a public servant within the
meaning of the statute. Where a person is found to satisfy
the requirements of the definition of a public servant, the
Court must, as was said by the majority in Veeraswami's
case, attempt to identify the authority competent to remove
him from his office. The majority identified that authority
in the case of a Judge of a High Court and the Supreme Court
and did not need to consider the effect upon the prosecution
of not being able to find such authority.
It is convenient now to notice a submission made by
Mr. Sibal based upon Veeraswami's case. He urged that just
as this court had there directed that no criminal
prosecution should be launched against a Judge of a High
Court or the Supreme Court without first consulting the
Chief Justice of India, so we should direct that no criminal
prosecution should be launched against a member of
Parliament without first consulting the Speaker. As the
majority judgment makes clear, this direction was considered
necessary to secure the independence of the judiciary and in
the light of the "apprehension that the Executive being the
largest litigant is likely to abuse the power to prosecute
the Judges." Members of Parliament do not stand in a
comparable position. They do not have to decide day after
day disputes between the citizen and the Executive. They do
not need the additional protection that the Judges require
to perform their constitutional duty of decision making
without fear or favour.
Before we move on to consider the alternative
submission of the Attorney General, we must note the
judgment in S.A. Venkataraman vs. The State, 1958 S.C.R.
1040, upon which the learned Attorney General relied for his
first proposition, namely, that the provisions of Section 19
do not apply to a public servant in resect of whom there is
no authority competent to remove him from his office. The
appellant Venkatraman was a public servant. After he was
dismissed from service consequent upon a departmental
inquiry, he was charged with criminal misconduct under the
1947 Act and was convicted. The contention before this Court
was that the trial court could not have taken cognizance of
the offence because no sanction for the prosecution had been
produced before it. This Court held that no sanction for the
prosecution of the appellant was required because he was
not a public servant at the time cognizance of the offence
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was taken. The following passage in this Court's judgment
was relied upon :
" It was suggested that cl.
(c) in s.6(1) refers to persons
other than those mentioned in cls.
(a) and (b). The words "is
employed" are absent in this clause
which would, therefore, apply to a
person who had ceased to be a
public servant though he was so at
the time of the commission of the
offence. Clause (c) cannot be
construed in this way. The
expressions "in the case of a
person" and "in the case of any
other person" must refer to a
public servant having regard to the
first paragraph of the sub-section.
Clauses (a) and (b), therefore,
would cover the case of a public
servant who is employed in
connection with the affairs of the
Union or a State and is not
removable from his office save by
or with the sanction of the Central
Government or the State Government
and cl.(c) would cover the case of
any other public servant whom a
competent authority could remove
from his office. The more important
words in cl. (c) are "of the
authority competent to remove him
from his office". A public servant
who has ceased to be a public
servant is not a person removable
from any office by a competent
authority. Section 2 of the Act
states that a public servant, for
the purpose of the Act, means a
public servant as defined in s.21
of the Indian Penal Code. Under cl.
(c), therefore, any one who is a
public servant at the time a court
was asked to take cognizance, but
does not come within the
description of a public servant
under cls. (a) and (b), is accused
of an offence committed by him as
a public servant as specified in s.
6 would be entitled to rely on the
provisions of that section and
object to the taking of cognizance
without a previous sanction."
We do not find in the passage anything that can assist the
Attorney General's submission; rather, it is supportive of
the view that we have taken and indicates that the third
clause in the sanction provision is a catch-all clause into
which all public servants who are not covered by the first
two clauses fall. In the words, to prosecute a public
servant the prior sanction of the authority competent to
remove him is a must.
For the purposes of appreciating argument that the
President is the authority competent to remove a member of
Parliament from his office, Articles 101, 102 and 103 under
the head "Disqualifications of Members" in Chapter II of
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Part V of the Constitution need to be set out. (Similar
provisions in relation to members of State Legislatures are
contained in Articles 190, 191 and 192 under the same head
in Chapter III of Part VI of the Constitution.) Articles
101, 102 and 103 read thus:
"101. Vacation of seats, - (1) No
person shall be a member of both
Houses of Parliament and provision
shall be made by Parliament by law
for the vacation by a person who is
chosen a member of both Houses of
his seat in one House or the other.
(2) No person shall be a member
both of Parliament and of a House
of the Legislature of a State and
if a person chosen a member both of
Parliament and of a House of the
Legislature of a State, then, at
the expiration of such period as
may be specified in rules made by
the President, that person's seat
in Parliament shall become vacant,
unless he has previously resigned
his seat in the Legislature of the
State.
(3) If a member of either House of
Parliament -
(a) becomes subject to any of the
disqualifications mentioned in
clause (1) or clause (2) of
article 102 or
(b) resigns his seat by writing
under his hand addressed to
the Chairman or the Speaker as
the case may be, and his
resignation is accepted by
the Chairman or the Speaker,
as the case may be,
his seat shall thereupon become
vacant:
Provided that in the case of any
resignation to in sub-clause (b),
in from information received or
otherwise and after making such
inquiry as he thinks fit; the
Chairman or the Speaker, as the
case may be, is satisfied that
such resignation is not voluntary
of genuine, he shall not accept
such resignation.
(4) If for a period of sixty days a
member of either House of
Parliament is without permission of
the House absent from all meetings
thereof, the House may declare his
seat vacant :
Provided that in computing the said
periods of sixty days no account
shall be taken of any period during
which the House is prorogued or is
adjourned for more than four
consecutive days.
102. Disqualifications for
membership. - (1) A person shall be
disqualified for being chosen as,
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and for being, a member of either
House of Parliament -
(a) if he holds any offence of
profit under the Government of
India or the Government of any
State, other than an office
declared by Parliament by law not
to disqualify its holder;
(b) if he holds any office of
profit under the Government of
India or the Government of any
State, other than an office
declared by Parliament by law not
to disqualify its holder;
(b) if he is an undischarged
insolvent;
(c) if he is an undischarged
insolvent;
(d) if he is not a citizen of
India, or has voluntarily acquired
the citizenship of a foreign State,
or is under any acknowledgement of
allegiance or adherence to a
foreign State;
(e) if he is so disqualified by or
under any law made by Parliament.
Explanation - For the purpose of
this clause a person shall not be
deemed to hold an office of profit
under the Government of India or
the Government of any State by
reason only that he is a Minister
either for the Union or for such
State.
(2)A person shall be disqualified
for being a member of either House
of Parliament if he is so
disqualified under the Tenth
schedule.
103. Decision on questions as to
disqualifications of members. -
(1) If any question arises as to
whether a member of either House of
Parliament has become subject to
any of the disqualifications
mentioned in clause (1) of article
102, the question shall be referred
for the decision of the President
and his decision shall be final.
(2) Before giving any decision
on any such question, the President
shall obtain the opinion of the
Election Commission and shall act
according to such opinion.
By reason of Article 101(3)(a), the seat of a member
of Parliament becomes vacant if he becomes subject to the
disqualifications mentioned in Article 102(1) and (2).
Those disqualifications are the holding of an office of
profit under the Union or State Government, other than an
office declared by Parliament by law not to disqualify the
holder; the declaration by a competent court of unsoundness
of mind; undischarged insolvency; the citizenship of a
foreign State or acknowledgement of allegiance or adherence
thereto; and disqualification under any law made by
Parliament or under the Tenth Schedule. Under the provisions
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of Article 103, it is only if a question arises as to
whether a member of Parliament has become subject to any of
the disqualifications aforementioned, other than
disqualification under the Tenth Schedule, that the question
is referred to the President for his decision. The
President's decision is final but, before giving it, the
President has to obtain the opinion of the Election
Commission and has to act according to such opinion.
The question for our purposes is whether, having regard to
the terms of Article 101, 102 and 103, the President can be
said to be the authority competent to remove a member of
Parliament from his office. It is clear from Article 101
that the seat of a member of Parliament becomes vacant
immediately upon his becoming subject to the
disqualifications, mentioned in Article 102. without more.
The removal of a member of Parliament is occasioned by
operation of law and is self operative. Reference to the
President under Article 103 is required only if a question
arises as to whether a member of Parliament has earned such
disqualification; that is to say, if it is disputed. The
President would then have to decide whether the member of
Parliament had become subject to the automatic
disqualification contemplated by Article 101. His order
would not remove the member of Parliament from his seat or
office but would declare that he stood disqualified. It
would operate not with effect from the date upon which it
was made but would relate back to the date upon which the
disqualification was earned. Without, therefore, having to
go into the connotation of the word "removal" in service
law, it seems clear that the President cannot be said to be
the authority competent to remove a member of Parliament
from his office.
The Attorney General submitted that the scheme of the
said Act, as compared to the 1947 Act, had undergone an
important change by reason of the introduction of sub-
section (3) in Section 19. Sanction was no longer a
condition precedent. A trial in the absence of sanction was
not a trial without inherent jurisdiction or a nullity. A
trial without sanction had to be upheld unless there had
been a failure of justice. This feature has a material
bearing on the present case. The trial Court had taken
cognizance of the charges against the accused and the High
Court had dismissed the revision petition to quash the
charges. In the Light of Section 19(3), this Court should
not interdict the charges, particularly since a complaint
filed today would not require sanction against most of the
accused. Having regard to the effect of our findings upon
the accused, it is not necessary to consider this
submission.
We have, as aforestated, reached the conclusion that
members of Parliament and the State legislatures are public
servants liable to be prosecuted for offences under the said
Act but that they cannot be prosecuted for offences under
Sections 7, 10, 11 and 13 thereof because of want of an
authority competent to grant sanction thereto. We entertain
the hope that Parliament will address itself to the task of
removing this lacuna with due expedition.
Conclusions.
We now set down the effect upon the accused of our
findings.
We have held that the alleged bribe takers who voted
upon the no-confidence motion, that is, Suraj Mandal Shibu
Soren, Simon Marandi, Shailender Mehto, Ram Lakhan Sing
Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and
Haji Gulam Mohammed (accused nos. 3, 4, 5, 6, 16, 17, 18,
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19, 20 and 21) are entitled to the immunity conferred by
Article 105(2).
D.K. Adikeshavulu and M. Thimmogowda (accused nos.12
and 13) were at all relevant times private persons. The
trial on all charges against them must proceed.
When cognizance of the charges against them was taken,
Buta Singh and N.M. Ravanna (accused nos. 7 and 9) were not
public servants. The question of sanction for their
prosecution, does not, therefore, arise and the trial on all
charges against them must proceed.
P.V. Narasimha Rao, Satish Sharma, V. Rajeswar Rao, Ram
Linga Reddy, M. Veerappa Moily and Bhajan Lal(accused nos.1.
2 8, 10, 11 and 14) were public servants, being either
members of Parliament or a State legislature, when
cognizance of the charges against them was taken. They are
charged with substantive offences under Section 120B of the
Indian Penal Code and Section 12 of the said Act. Since no
prior sanction is required in respect of the charge under
Section 12 of the said Act, the trial on all charges against
them must proceed.
Ajit Singh (accused no.15) was a public servant, being
member of Parliament, when cognizance of the charges against
him was taken. He is charged with substantive offences under
Section 120B of the Indian Penal Code and Section 7 and
13(2) of the said Act. The trial of the charge against him
under Section 120B of the Indian Penal Code must proceed.
The appeals shall now be placed before a bench of three
learned judges for hearing, on any other points that may be
involved, and final disposal.
G.N. RAY, J.
I had the privilege of reading both the judgments - one
by my learned brother Mr. Justice S.C. Agrawal and the other
by learned brother Mr. Justice S.P. Bharucha. Though I
respectfully concur with the findings of Mr. Justice Agrawal
and agree with the reasonings for such findings that (1) a
member of Parliament is a public servant under Section 2[c]
of the Prevention of Corruption Act, 1988 and (2) since
there is no authority competent to grant sanction for the
prosecution of a Member of Parliament under Section 19[1] of
the Prevention of Corruption Act 1988, the Court can take
cognizance of the offences mentioned in Section 19[1] in the
absence of sanction but before filing a chargesheet in
respect of an offence punishable under Sections 7,10,11,12
and 15 of 1988 Act against a Member of Parliament in a
criminal court, the prosecuting agency shall obtain the
permission of the Chairman of the Rajya Sabha/Speaker of the
Lok Sabha, as the case may be, I have not been able to
persuade myself to concur with the reasonings and the
finding in the judgment of Mr. Justice Agrawal that a member
of parliament does not enjoy immunity under Article 105(2)
or 105(3) of the Constitution from being prosecuted before a
criminal court for an offence involving offer or acceptance
of bribe for the purpose of speaking or giving his vote in
Parliament or in any committee thereof.
Article 105 of the Constitution deals with powers,
privileges etc. of the Houses of Parliament and the members
and committees thereof. Sub article (1) of Article 105
makes it evident that subject to the provisions of the
Constitution and rules and standing orders regulating the
procedure of Parliament, there shall be freedom of speech in
Parliament. The provisions of Sub-article (1) Article 105
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indicates in no uncertain term that the freedom of speech
guaranteed under sub Article (1) of Article 105 is
independent of the freedom of speech guaranteed under
Article 19 of the Constitution and such freedom of speech
under Article 105 (1) is not inhibited or circumscribed by
the restrictions under Article 105 (1) is not inhibited or
circumscribed by the restrictions under Article 19 of the
Constitution. In order to ensure effective functioning of
Parliamentary democracy, there was a felt need that a Member
of Parliament will have absolute freedom in expressing his
views in the deliberations made in the door of Parliament.
Similarly he must enjoy full freedom in casting his vote in
Parliament.
The protections to be enjoyed by a Member of Parliament
as contained in Sub Article (2) of Article 105 essentially
flows from the freedom of speech guaranteed under Sub-
Article (1) of Article 105. Both the Sub-articles (1) and
(2) compliment each other and indicate the true content of
freedom of speech and freedom to exercise the right to vote
envisaged in Article 105 of the Constitution. The
expression "in respect of" appearing in several articles of
the Constitution and in some other legislative provisions
has been noticed in a number of decisions of this Court.
The correct interpretation of the expression "in respect of
can not be made under any rigid formula but must be
appreciated with references to the context in which it has
been used and the purpose to be achieved under the provision
in question. The context in which the expression "in
respect of" has been used in sub article (2) of Article 105
and the purpose for which the freedom of speech and freedom
to vote have been guaranteed in sub article (2) of Article
105 do not permit any restriction or curtailment of such
right expressly given under sub article (1) and sub article
(2) of Article 105 of the Constitution. It must, however be
made clear that the protection under sub-article (2) of
Article 105 of the Constitution must relate to the vote
actually given and speech actually made in Parliament by a
Member of Parliament. In any view, the protection against
proceedings in court as envisaged under Sub-article (2) of
Article 105 must necessarily be interpreted broadly and not
in a restricted manner. Therefore, an action impugned in a
court proceeding which has a nexus with the vote cast or
speech made in Parliament must get the protection under sub-
article (2) of Article 105. Sub-Article (3) of Article 105
provides for other powers, privileges and immunities to be
enjoyed by a Member of Parliament. The farmers of the
Constitution did not catalogue such powers, privileges and
immunities but provided in sub article (3) of Article 105
that until such privileges are defined by the Parliament, a
member of Parliament will enjoy such powers, privileges and
immunities which had been recognised to be existing for a
member of House of Commons at the commencement of the
Constitution of India. As I respectfully agree with the
reasonings indicated in the judgment of the learned brother
Mr. Justice S.P. Bharucha that in the facts of the case,
protection under Article 105(3) of the Constitution is not
attracted but protection under Sub article (2) of Article
105 is available only to those accused, who as Members of
Parliament had cast their votes in Parliament, I refrain
from indicating separate reasonings in support of such
finding.
The landmark Supreme Court judgment in P.V. Narasimha Rao v. State (CBI/SPE) stands as a critical exposition on the conflict between two foundational principles of Indian democracy: Parliamentary Privilege under Article 105 and the accountability of lawmakers under the Prevention of Corruption Act, 1988. This seminal case, extensively documented and available on CaseOn, dissects the immunity granted to Members of Parliament (MPs) and questions whether this constitutional shield can protect them from criminal prosecution for bribery. The ruling by a 5-judge Constitution Bench delved into the very definition of a 'public servant' and the scope of legislative freedom, setting a precedent that influenced Indian politics and law for over two decades.
In July 1993, the Congress (I) government, led by Prime Minister P.V. Narasimha Rao, faced a crucial 'No-Confidence Motion' in the Lok Sabha. As a minority government, it was short of 14 members for a simple majority, making its survival precarious. The motion was put to a vote on July 28, 1993, and was narrowly defeated, with 251 votes in favour and 265 against, thereby saving the government.
Soon after, allegations surfaced that the victory was secured through illegal means. It was alleged that a criminal conspiracy was hatched by P.V. Narasimha Rao and his associates to bribe MPs to vote against the motion. The Central Bureau of Investigation (CBI) initiated an investigation and subsequently filed charge sheets against several individuals. The accused were broadly categorized as:
The prosecution was launched under various sections of the Prevention of Corruption Act, 1988 (PC Act) and Section 120-B of the Indian Penal Code (IPC) for criminal conspiracy.
The core of the case rested on the interpretation of constitutional and statutory provisions. The appellants claimed immunity, leading to a complex legal battle that reached the Supreme Court.
The Constitution Bench was tasked with answering two fundamental questions:
The judgment revolved around the interpretation of the following legal provisions:
The 5-judge bench delivered a split verdict (3:2), revealing a deep judicial division on the scope of parliamentary privilege.
On this issue, the Court was unanimous. It held that a Member of Parliament is indeed a 'public servant' under the PC Act, 1988. The reasoning was that an MP holds an 'office' and is required by that office to perform a 'public duty,' which includes lawmaking, financial oversight, and holding the executive accountable. These duties are of immense public interest, fitting squarely within the definition provided by the Act.
A related issue was the requirement of sanction under Section 19 of the PC Act. The Court noted a legal lacuna: while an MP is a public servant, the Constitution does not specify an authority for their removal. The Court concluded that in the absence of a designated authority, no sanction was required for prosecution. However, to prevent frivolous cases, it directed that the prosecuting agency must obtain the permission of the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, as the case may be, before filing a charge sheet.
This was the most contentious point, leading to majority and minority opinions that offered starkly different interpretations of the Constitution.
Analyzing the intricate arguments in both the majority and minority opinions can be time-consuming. For legal professionals on the go, CaseOn.in's 2-minute audio briefs provide a concise and clear summary of such specific rulings, helping to quickly grasp the core reasoning and implications of landmark judgments like this one.
Based on the 3:2 majority, the Supreme Court held that:
Postscript: It is important to note that this 1998 judgment was overruled in 2024 by a 7-judge Constitution Bench in Sita Soren v. Union of India, which unanimously held that parliamentary privilege does not protect lawmakers from prosecution for bribery.
The Supreme Court's verdict in the P.V. Narasimha Rao case established that MPs are public servants but controversially granted them immunity from prosecution for bribery if the bribe was linked to a vote they cast in Parliament. The majority focused on a literal reading of Article 105(2) to protect legislative freedom, while the minority warned that such an interpretation would shield corruption. This created a legal paradox where a lawmaker could be prosecuted for taking a bribe for an administrative action but not for a legislative one. This ruling sparked significant debate and held the legal field for 26 years before being overturned.
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. Please consult with a qualified legal professional for advice on any specific legal issues.
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