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PETITIONER:

P.V. NARSIMHA RAO

Vs.

RESPONDENT:

STATE (CBI/SPE)

DATE OF JUDGMENT: 17/04/1998

BENCH:

S.C. AGRAWAL, A.S. ANAND

ACT:

HEADNOTE:

JUDGMENT:

[Withe CRL. A. NOS. 1209/97, 1210-12/97, 1213/97, 1214/97,

1215/97, 1216/97, 1217-18/97, 1219/97, 1220/97, 1221/97,

1222/97, 186/98 (Arising out of S.L.P. (Crl.) No.2/98) AND

187/98 (Arising out of S.L.P. (Crl.) No. 366/98)]

J U D G M E N T

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

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Rs. 1.10 crores was handed over by the aforementioned

persons, except A-15, to Suraj Mandal [hereinafter referred

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

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stated that even after securing the support of four JMM MPs

in the manner stated in the first charge sheet dated October

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

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Parliament, i.e., demanding and accepting the bribe for

exercising their franchise in a particular manner, and the

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.

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(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

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

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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.

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

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the exercise of his official

functions, favour or disfavour to

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

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six months but which may extend to

five years and shall also be liable

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

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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 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

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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 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

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law in the United Kingdom a other countries following the

common law.

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.

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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 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.

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Bribery of a Member, or the

acceptance of a bribe by a Member,

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.

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In that case three persons, namely, Walter James Boston, a

member of the Legislative Assembly of New South Wales, John

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

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a Minister has its source in his

right to sit and vote in

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

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has the effect of fettering

parliamentary or executive action

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

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offence at the common law, and is

indictable and punishable as a

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

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Congressmen would exert influence on the Department of

Justice to obtain the dismissal of pending indictments of

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]

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In Helstoski a former member of the House of

Representatives, named Heistoski, was prosecuted for

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

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at the same time it was held that as the allegation of

bribery and forgery were very serious and unbecoming of a

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

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defined, shall be those of that

House and of its members and

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

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of Parliament or any committee thereof as they apply in

relation to Members of Parliament.

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

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agreed to deceive the House of Lords by stating that the

charge of faleshood contained in the petition against the

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

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not charge any indictable offence."

[p. 576]

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

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the defendant member of Congress or

his motives for performing them."

[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),

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are inapt." [p. 521]

While referring to the observations made by Brennan J., the

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

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an act, nor necessarily illegal, by illegal means because

there were no illegal means used or to be used. The learned

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

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Rights did not prohibit such cross-examination even if the

suggestion was made that the evidence given to the Select

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

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application in the matter of construction of clause (2) of

Article 105. Ex parte Wason (supra), which holds that the

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

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vote in Parliament. The submission is that the expression

`in respect of' in clause (2) of Article 105 must be so

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"

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so to elevate Members of Parliament as "super citizens,

immune from criminal responsibility". (Burger CJ. in

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

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adopt a construction which strengthens the foundational

features and the basic structure of the Constitution. [See-

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

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by the Member if such an act gives rise to a liability which

arise independently and does not depend on the making of the

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

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in a certain way. The offence is complete with the

acceptance of the money or on t he agreement to accept the

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

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been made by Parliament defining the powers, privileges and

immunities of each House of Parliament, the powers,

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

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desuetude; and so, in every case

where a power is claimed, it is

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

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1512 (as amended)."

We find considerable force in the aforesaid submission of

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

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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 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

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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 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;

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(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)."

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

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he is not performing any public

duty either directed by the

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

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is authorised or requried to

perform any public duty;

(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."

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The expression "public duty" is defined in Section 2(b) in

these terms :-

"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

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essential difference betweent he definitions given by Lord

Wright and Lord Atkin.

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

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used in `seat' and not `office' which shows that the

COnstitution does not contemplate that a Member of

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

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that sovereignty and integrity of

India and that I will faithfully

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

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finances." [p. 401]

We are, therefore, of the view that a Member of

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

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situations are quite adequate to

take care of defeaulting Members of

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.

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It has been urged that these excerpts from the speeches

of the Minister who has moved the Bill for consideration in

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

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dangerous to attach weight to what

some other members of either House

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

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before the Court. After Parliament

has said what it intends to say,

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

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our opinion th eowrds used in sub-clause (viii) of Section

2(c) are clear and ambiguous they cannot be out down on the

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

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the requriement of sanction. The submission is that merely

because none of the clauses (a), (b) and (c) of Section

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

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alleged to have b een committed.

3) Notwithstanding anything

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

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2) of Section 19 substantially reproduce the provisions

contained in Section 6 of the 1947 Act. Clauses (a), (b) and

(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

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21 of the IPC." [p. 238]

"The provisions of clauses (a) and

(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 :-

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"The grant of sanction requires

consideration of material collected

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

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that 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 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

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following observations in the dissenting judgment of Verma

J. in Veeraswami :-

"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

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competent authority in the case of

a public servant, and in other

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

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sanction does not go to the root of the jurisdiction of the

court. It must, therefore, be held that merely because there

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

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court for an offence involving offer or acceptance of

bribe for the purpose of speaking or by giving his vote

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.