Among the Countries that shook off the colonial rule and became independent after the Second World War, India is the only country which has retained democratic regime consistently throughout. The rule of law, as provided in the Constitution of India, has been sustained. Even the eighteen months’ emergency of 1975-77 was at least technically in accordance with law — so said the Supreme Court of India. Elections have been held regularly in accordance with the Constitution and law.
Lok Sabha – right up to the 18th Lok Sabha — have been elected regularly and no Lok Sabha has been dissolved except as provided by law. Unlike in Pakistan, where no Government has been removed by a decision of the incumbent Government or by a vote in the Parliament, in India no government has been ‘thrown out.’
All this continuity in India has been made possible not merely by the Constitution (several countries which went under dictatorships had also constitutions) but by the strength of Indian democracy, which is reflected through the people’s will in the Indian Parliament. The Parliament of India is the largest democratic parliament in the world. The people of India, through the Constituent Assembly placed the most unlimited trust in the Houses of Parliament and gave both the Houses great powers and privileges, to enable them to discharge the legislative functions without hindrance or interference. The uncodified privileges of the Indian Parliament are as wide as the privileges of the British House of Commons. Apart from the exclusion of jurisdiction of any court to question the validity of the procedure and proceedings in the Parliament, which is provided for in Article 122 of the Constitution, there is a total immunity to a Member of Parliament in respect of anything said or any vote given by him in the Parliament. The relevant provision viz. Article 105(2) deserves quotation,
“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 protection given to the legislators was to enable them to discharge their duties without fear or favour or hope of favour. The assumption underlying this provision, as other provisions relating to duties, is that the person charged with duty and endowed with the power to perform this duty will perform that duty and exercise that power honestly and in good faith, though not always wisely and well. Exercise of that power by a legislator for personal gain is wholly inconsistent with the majestic status of the Parliament under our Constitution and also with the sacred duty of the legislator in whom the voters have placed trust. To act knowingly dishonestly is obviously to commit breach of trust. But it is not a criminal breach of trust nor is it an offence otherwise punishable — so says the Supreme Court of India.
The question that the Supreme Court had to consider was whether a Member of Parliament accepting bribe to vote on a resolution in the Parliament as per the bribe giver’s wish is liable to punishment in accordance with law relating to bribery and corruption. The Supreme Court said: “No.” Some Members of the 10th Lok Sabha, owing allegiance to Jharkhand Mukti Morcha, were alleged to have accepted money to vote against a resolution expressing no confidence in the Government headed by P.V. Narasinha Rao. The no confidence motion moved on July 26, 1993 was defeated on July 28, 1993. The alleged acceptance of money by the Members of Parliament was patently consideration other than legal remuneration. That they were public servants was not disputable. The case was thus clearly covered by the penal provisions of the Prevention of Corruption Act, 1988. If the charges held were proved in the trial, these Members of the Parliament would be convicted. Under the law, the bribe givers (P.V. Narasinha Rao was among them) would also be guilty of a criminal offence.
The prosecution launched by the Central Bureau of Investigation was challenged by both the bribe givers and bribe takers and this challenge ultimately landed in the Supreme Court of India. The Bench, which heard this case consisted of five judges — Justices S.C. Agarwal, G.N. Ray, A.S. Anand, S.P. Bharucha and S. Rajendra Babu. The bench by a majority of 3 (S.P. Bharucha, S. Rajendra Babu and G.N. Ray) held that in view of the provisions contained in Article 105(2) of the Constitution, the bribed members of Parliament enjoyed immunity from prosecution because, said the learned three judges, having regard to ‘in respect of’ in Article 105(2), it must be held that the said provision protects a Member of Parliament against proceedings in Court that relate to or concern or have a connection or nexus with anything said or vote given by him in Parliament. The judgment of the Supreme Court is reported in (1998) 4 SCC 626 under the title P.V. Narasinha Rao v. State.
The reasoning in the judgment of the majority was that the charge against the alleged bribe takers was that they “were party to a criminal conspiracy and agreed to or entered into an agreement with” the alleged bribe givers “to defeat the no confidence motion … by illegal means viz, to obtain or agree to obtain gratification other than legal remunerations” from the alleged bribe givers “as a motive or reward for defeating the no confidence motion”. In pursuance of this conspiracy the alleged bribe givers “passed on several lakhs of rupees” to the alleged bribe takers and the same amounts were accepted by the latter. The stated object of the agreement was to defeat the vote of no confidence (by the bribe takers voting against it). The moneys taken were “as a motive or reward for defeating” the no confidence motion. “The nexus between the alleged conspiracy and bribe and the no confidence motion is explicit.”
The learned judges were no doubt indignant at what the bribed legislators did, for they said, “Of course the offence that the alleged bribe-takers are said to have committed is serious and if true, they bartered a most solemn trust committed to them by those whom they represented. By reason of the lucre that they received, they enabled a Government to survive.” (Without this crime, the Government would have fallen). The learned judges said, “Court’s sense of indignation should not lead it to construe the Constitution narrowly, impairing the guarantee to effective parliamentary participation and debate.” How does a bribe enable a legislator to effectively participate in the proceedings? How does a refusal to be bribed prevent a legislator from voting honestly?
Does the prosecution for taking bribe to vote in a particular manner, amount to prosecution for “any vote given by him in Parliament?” Alas, the majority judgment does not deal with these questions satisfactorily. The majority judgment in P.V. Narasinha Rao case has done as much damage to parliamentary democracy as the majority judgment in ADM Jabalpur v. Shukla (AIR 1976 SC 1207) did to the concept of rule of law in this country. The majority (of one) judgment in ADM Jabalpur is now acknowledged as laying down a rational interpretation. If a situation similar to the one in P.V. Narasinha Rao’s arises (one hopes it will not arise), it is hoped, a view similar to the one adopted by the majority will not be taken. The following from the minority judgment illustrates the damage done by the majority judgment:
“An interpretation of the provisions of Article 105(2) which would enable a member of Parliament to claim immunity from prosecutions in a criminal court for an offence of bribery in connection with anything said 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.”
The majority judgment pointed out that for the past more than 100 years legislators in Australia and Canada have been liable to be prosecuted for bribery in connection with their legislative activities and with the exception of United Kingdom, most of the Commonwealth countries treat corruption and bribery by Members of the Legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. “There appears no reason why legislators in India should be beyond the pale of laws governing bribery and corruption when all the other public functionaries are subject to such laws.”
Prior to 1947 or in the Prevention of Corruption Act, 1947, bribing the legislators or bribe taking by the legislators was not an offence. This was so because the definition of public servant did not include a legislator. It was under the widened definition of “public servant” in The Prevention of Corruption Act, 1988, that a legislator would be a public servant. (For an interesting account of bribery of legislators under the British rule, see the Chapter “Bribing Legislators During the Raj” in A.G. Noorani’s Constitutional Questions in India, Oxford University Press, 2000). References to the position in some democratic countries would be in order.
The law in the USA was laid down by the US Supreme Court headed by Chief Justice Earl Warren in 1972. A Senator who had accepted favours as a member of the Senate put up a defense that prosecution would violate Article 1 – Section 6 of the US Constitution which protected Members of the Congress in respect of votes or speeches in the Congress. The US Supreme Court ruled (6:3) that the Constitutional provision did not prevent the indictment and prosecution for taking bribes, which is not a part of any legislative process or function. The relevant clause was not for the personal benefit of a legislator but it was to protect the integrity of the legislative process.
In Australia, Section 73A of the Crimes Act provides that an MP asking for or receiving or offering a benefit in return for the exercise of his duty as an MP is liable to a sentence of two years’ imprisonment. In Canada, for the same offence, sentence of up to 14 years is provided for. In both the countries there are specific provisions on the subject.
In Britain, it is noticed that the Royal Commission on Standards of Conduct in Public Life (1974-76), headed by Lord Salmon opined that neither the statutory law nor the common law covers the bribery of an MP in respect of parliamentary activities: it is a mere breach of privilege. The Salmon Commission was of the view that a legislator does not hold an office. Interestingly, Lord Salmon on another occasion has observed that the Bill of Rights, which is the charter of the rights and privileges of the Members of English Parliament, does not deal with the subject of legislators’ misconduct of corruption though the crime of corruption is complete when the bribe is offered or given or solicited or taken.
Recently many cases of English parliamentarians accepting favours have been coming to light. In October 1994, Prime Minister John Major announced the appointment of a Committee: “to examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities and make recommendations as to any changes in present arrangements, which might be required to ensure the highest standards of propriety in public life. For these purposes, public life includes MPs”
The Committee was headed by Lord Nolan, a law Lord. I should mention here that the impetus for the appointment of this committee was provided by two disclosures made by two newspapers. In July 1994, the Sunday Times revealed that the MPs accepted £1000 to ask questions in the Parliament. In October 1994, The Guardian came with a disclosure that the rate was doubled in one instance because the giver of the bribe was one of the richest persons in England viz, the owner of Harrods, Mohammed Ali-Fayed, whose son perished with Princess Diana in the car crash in Paris. Lord Nolan Committee in its first report submitted in July 1995, said,
“In the interests of Members as well as the wider public interest, it is important that the extent to which the actions of the Members are subject to the law of bribery should be clarified as soon as possible.”
The Government of the day responded by announcing,
“The Government reaffirms its commitment to consolidate the laws on corruption and welcomes the opportunity to clarify the law relating to the bribery of or receipt of a bribe by a Member of Parliament alongside that consolidation.”
In English law, the Parliament itself is the High Court which can try an offence, but it would be more expedient and practical to entrust this to regular investigating agencies which have the time, training and experience for the investigation of offences.
In the meantime, the matter is bogged down at the level of discussion of privileges.
Let not our law makers destroy the rule of law. All of us seek the protection of law. It is the rule of law which upheld will protect us.
“Dharm rakshati rakshitah“