Thursday, September 24, 2015

ANTI -CORRUPTION LAW CONCLUSION AND SUGGESTIONS

ANTI -CORRUPTION LAW
CONCLUSION AND SUGGESTIONS

India became free in 1947, became republic in 1950 and now entering 59th year as a Republic state. All over India both Central Government and State Governments are crowded with endless number of polticians-some occupying chairs some without it fighting hook by crook to snatch it from their collegues. Every politician worth his/her name is  procaliming on the top of his/her roof that he/she is serving the nation.
The East India Company Act, 1784 formed the basis of the Indian Constitution till 1858. It created Commissioners for the affairs of India to be appointed at home by the King. This was followed by the Charter Act, 1833 that provided for a legislative authority. In this dispensation, the meetings of the Governor-General's Council for law-making were distinguished from the meetings of the Council for discharging other, i.e., executive functions.
Macaulay, as Law Member of the Governor General Council, against the backdrop of the insistence by the Executive Councilor of the Governor General's Council that all the drafts of laws should be fully considered by the Executive Council before they were laid before the Legislative Council for final passage, in his speech of 13th June, 1835, described the deliberative chamber as the "Supreme Legislative Council", and said "when the Parliament gave us the power of legislating it gave us also, by necessary implication, all the powers without which it is impossible to legislate well", referring in this context particularly to power "to correspond directly with the subordinate Governments"; "directly call for information from any public functionary"; and "require the attendance of the military or financial secretary". An expansion of the Legislative Council of India was provided by the Charter Act of 1853, followed by certain further additions by the Acts of 1854 and 1861.
The period 1915-1950 indeed marks a definite advance in the history of the development of parliamentary privilege in India. By the Government of India Act 1915, the entire position of Parliamentary privilege that obtained before that time was consolidated. The Government of India Act, 1915, provided that the Indian Legislature shall consist of the Governor-General and "two chambers, namely, the Council of State and the Legislative Assembly"[1].
The Government of India Act 1919 brought about material changes in the Government of India Act 1915. The legislature now ceased to be part of the Executive and stood on its own. It was no longer an expanded Governor-General's Council with additional members. The Governor General and the Executive Councilor ceased to be ex-officio members of the
Legislative Council. The bicameral Indian Legislature would consist of both nominated and elected members.
Section 65 of the Government of India Act 1915, as amended in 1919, provide for the powers of the Indian Legislature, subject to the specific prohibition that it shall not have the powers, inter alia, to make laws "unless expressly so authorized by Act of Parliament (of United Kingdom)", amongst others, "affecting the authority of Parliament, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any persons to the Crown of the United Kingdom, or affecting the sovereignty or domination of the Crown over any part of British India".
The Reforms Inquiry Committee under the chairmanship of Sir Alexander Muddiman (the Home Member), which included as members Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined the issue of powers of the Indian Legislature and gave vent to the hope and aspiration of bringing legislatures in India "at par with the House of Commons" and that "eventually no doubt similar provision will be made in the Constitution of British India"[2].
On the basis of the Report, the Indian Legislature passed the Legislative Members Exemption Act, 1925 which granted two new parliamentary privileges; viz. the privilege of exemption of the legislator from jury service and the privilege of freedom from arrest. These new privileges would be reflected in the Code of Criminal procedure 1898[3].
The Legislative Assembly created under Government of India Act, 1919 witnessed a number of instances wherein the privileges of a legislative body were asserted. These include the adjournment motion moved on 21st January 1927 by Pt. Motilal Nehru to discuss the conduct of the Government in detaining Shri Satyendra Chandra Mitra, an elected member of the House, on the ground it tantamounts to a breach of the Privileges of the House and the adjournment motion in the Legislative Assembly moved by Shri Gaya Prasad Singh, 1928 against the Editor of the Times of India having made an attack on the President of the House, though disallowed but with the President having held that it is the inherent right of any assembly to defend itself against outside attacks and it is perfectly open in a proper cause for the House to table a substantive motion and pass a vote of censure or condemnation on the attacker[4].
On 13th of February, 1932 an interesting episode happened which involved the question involving Indian Press Act, 1931. In this context, a question arose before the Legislative Assembly under Government of India Act, 1919 regarding breach of the privileges upon a notice of motion having appeared in the Press given by a member. Acknowledging that there was a convention in the House of Commons against release by a member to the Press for publication questions for resolutions before they are admitted by the chair and that breach thereof was treated as a serious breach of the privilege of the House of Commons which had ample powers to deal with the member in question, the President of Indian Legislative Assembly noted that "unfortunately neither this House nor the Spokesmen have such powers" and commended that "this well established convention, which is observed in the House of Commons should also be observed as one of the conventions of this House".
The Government of India Act, 1935 came into force on 1st April, 1937 and was operative till 14th August, 1947. Sections 28 and 71 of the Government of India Act, 1935 dealt with the subject of Privileges etc. of members of Federal Legislature and Provincial Legislatures respectively. The provision in Sub-Section (1) of Section 71 extended the freedom of speech and immunity to speech or vote even in the Committees of the Legislature and also covering publication under the authority of a Chamber of the Legislature of the House[5].
Sub-Section (2) of Section 71 of the Government of India Act, 1935, for the first time, empowered the Provincial Legislature to pass an Act to define the other privileges of the members and, pending such legislation, the pre-existing privileges were confirmed. Some of the Provincial Legislatures did legislate or attempt to legislate on this subject. Sub-Section (2) of Section 71 was on lines similar to present Article 194 (3)[6].
Sub-Section (3) of Section 71 watered down the powers and privileges of Indian Legislatures under Government of India Act, 1935[7].
Clearly, the intendment was to restrict the powers and privileges of Indian Legislatures to remedial action for unobstructed functioning, severely restricting, or rather forbidding, the exercise of punitive powers by a House of Legislature.
Similar provisions, mutatis mutandis, were made for the Central Legislature, called the Federal Legislature, under Section 28 which, however, never came into force since Part II of the Act of 1935 concerning the Federation of India never became operative.
The above mentioned provisions were found by the Legislatures to be ineffective and inadequate for upholding the dignity and prestige of the legislature in India and for safeguarding the right and privileges of Members and officers thereof. This became subject matter of grievance conveyed in a Memorandum by the President of the Indian Legislative Assembly to the Reforms Commissioner of the Government of India on 29th January, 1938, raising a demand that the Central as well as provincial legislature in India should have among other privileges also "the power to proceed in contempt like the High Court and inflict punishment on any person who violates the privileges of the House and of the members thereof, or tries to bring the House or the President or the Speaker into contempt " and for a request to be made to the Government of India to take immediate steps to get Sections 28 and 71 of the Government of India Act, 1935 amended so as to secure for the Central and Provincial Legislatures and the officers and members thereof "all the powers and privileges which are held and enjoyed by the Speaker and members of the British House of Commons".
The Indian Independence Act 1947, which brought freedom from alien rule, made India a full fledged Dominion of the Commonwealth of Nations.
The concept of parliamentary privileges in India in its modern form is indeed one of graft, imported from England. The House of Commons having been accepted by the Constituent Assembly as the model of the legislature, the privileges of that House were transplanted into the draft Constitution through Articles 105 and 194. Article 85 of the Draft Constitution, corresponds to present Article 105.
The other point is that there is nothing to prevent the Parliament from setting up the proper machinery for formulating privileges. The Article 85 leaves wide scope for it.
CONSTITUTIONAL DEBATE AND NEED OF CODIFICATION :

A recent lively debate was held as to whether the premature leakage of some conclusions of the Pathak Report constitutes a breach of privilege. Natwar Singh has been quite bold, almost overconfident, in moving a motion against the prime minister, which has ironically ensured that a report adverse to him should be tabled promptly. The matter, however, should raise a much graver issue namely whether it is not time to codify privileges of Parliament as envisaged by the Constitution.
Chief Justice Pathak was not presiding over a full-fledged commission but was an authority conferred with specified powers. These included the requirement that the government shall lay before each House the report of the commission along with the Action Taken Report (ATR) within a period of six months. Governments have often been dilatory so as to postpone an inconvenient debate. But in this case, the attendant controversy has impelled the government to work overtime and present both the report of the commission along with the ATR. It would now be prudent to discuss the contents of the Report rather than be distracted by the procedural aspect of whether there was any leakage or, if so, who was responsible for it. It is highly unlikely the PMO would release the Report in bits and pieces. But in any view there is good parliamentary authority that giving premature publicity may be an act of impropriety but does not constitute a breach of privilege. These, however, are matters for the presiding officers and the collective wisdom of the Houses.
Sometimes the privilege is carried to such an extent as should embarrass Parliament itself. In Narasimha Rao's case, in a curious interpretation, the majority in the Supreme Court held that even if a bribe is taken by a member for casting his vote in a particular manner, it could not be enquired into by any court. The majority rejected the view, which is being followed increasingly by courts and parliaments in UK, USA and Canada, that taking money cannot in any manner be a parliamentary function. An MP to whom I was trying to explain the ratio ultimately put it very simply that it was safer for an MP to take a bribe for voting rather than to give it!
It is good opportunity to codify the privileges as envisaged in the Constitution. The Speaker, himself is a distinguished lawyer, can lead such an initiative. One of the postulates of the rule of law is that the law should be clear and certain. The present debate would have been worthwhile if it can lead to a proper codification of this branch of law which is outmoded and uncertain but has a constant impact on our public evaluation of the performance of our legislatures.
The Commission recommends that the time has come to define and delimit privileges deemed to be necessary for the free and independent functioning of Parliament.  It should not be necessary to run to the 1950 position in the House of Commons every time a question arises as to what kind of legal protection or immunity a Member has in relation to his or her work in the House.

The Commission recommends that article 105(2) may be amended to clarify that the immunity enjoyed by Members of Parliament under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise.  Corrupt acts would include accepting money or any other valuable consideration to speak and/or vote in a particular manner.  For such acts they would be liable for action under the ordinary law of the land.  It may be further provided that no court will take cognizance of any offence arising out of a Member's action in the House without prior sanction of the Speaker or the Chairman, as the case may be. Article 194(2) may also be similarly amended in relation to the Members of State Legislatures.
To reiterate, the Indian Constitution Article 105 (2)[8] and Article 122[9] is clear that the proceedings in parliament are not subject to judicial scrutiny. The Supreme Court in PV Narasimha Rao v. State[10] had endorsed the constitutional position. Parliamentary precedents on the issue of expulsion are established. Indian parliament had already expelled a member in 1951 through special committee. The House of Commons had set the precedent of expulsion through special committee. Since privileges of the Indian parliament and its members (Article 105 [3]), until so defined, are those of the House of Commons; it is very much the privilege of parliament to expel its member.
However, it would be better if parliament sits to codify the powers, privileges and immunities of the legislature and its members. The constitution review committee headed by the former chief justice of India, MN Venkatachaliah, has recommended codification of powers, privileges and immunities of each house of parliament and its member. The Supreme Court may play a constructive role in this task.
In a democratic society, any privileges for a sections or classes of the people are out of date, any undefined privileges like the privileges of Parliament are even more so.  It is, therefore of the utmost importance that the weapon of parliamentary privileges is used with great caution.  As a great institution, Parliament should be able to take in its stride, a great deal of the criticism and adverse comments against it.  Privileges of Parliament are intended to be privileges enjoyed by Parliament on behalf of the people, to enable members to function freely and fearlessly, in the interest of the people.
These privileges should not be allowed to be used in such a manner as to nullify them and become rights against the people. The specific parliamentary privileges which may be deemed to be in conformity with contemporary thinking and absolutely necessary for the free and independent functioning of the institution of Parliament should be clearly defined, delimited and simplified. 

Time is now ripe for removing the existing uncertainty and anxiety of the press and the people through early codification.  A joint Committee of the two Houses may be set up to lay down the privileges in precise terms and to recommend appropriate piecemeal or comprehensive legislation.
It was Tehelka that got the nation thinking. It must be remembered, JMM had happened too. Not much can however be said about the impact it had created within legal circles, barring of course the infamous, polemic judgment it left behind as judicial legacy, which has by now for sure weathered down through much lavish criticism.
There is no doubt that these politicians are serving themselves. Operation ‘Duryodhan’ and Operation ‘Chkravuyh’, two back to back sting operations conducted by electronic media channels last year, showing eleven Members Of Parliament in the first, taking bribe for asking questions in the House and seven Members Of Parliament in second demanding cuts ranging from 5% to 45% from the two crore annual MP Local Area Development Grant which each MP gets for welfare of his constituency, speaks a lot to the levels politics in India in general and the politicians in particular have fallen. It is not for nothing that Transparency International in its Corruption Study 2005 has listed India as one of the most corrupt countries in the world.
The operation code named 'Operation Duryodhana' has been termed the "money-for-questions scam" and involved an investigation by Cobrapost.com that stretched over eight months between April and November and included 56 video and 70 audiotapes besides recording more than 900 phone calls. 11 MPs were caught on camera taking bribes from a Cobrapost.com journalists posing as representatives of a fictitious organisation called the North Indian Small Manufacturer's Association (Nisma). One of the ideas dealt with the issue of how questions really get asked in Parliament.
After the expose of Operation Duryodhana, the various parties concerned had already initiated proceedings against their respective members caught on hidden-camera.Meanwhile, Rajya Sabha chairman Bhairon Singh Shekhawat announced that the whole matter would be referred to the Ethics Committee of the House.
At present, almost all television news channels routinely use spy cameras to expose corruption in society. Recently, the advocate general of Jammu and Kashmir Anil Sethi, had resigned after he was allegedly caught on camera taking a bribe. A CD made available to NDTV appears to show Sethi demanding Rs 1.5 million from a contractor Mushtaq Ahmed Ganei. Sethi admitted on camera that he had received Rs 500,000 as a bribe and wanted Rs 1.5 million more to bail out a contractor trapped in the rural electrification scam.
Biggest irony is that in last 63 years of Indian Independence, hardly any election has been fought where removal of corruption from Indian governance has not been one of the issues in every political parties election manifesto. Nevertheless the loot continues. With Netas indulging in this hobby in a big way the bureaucracy is not far behind. No wonder each political party has their own favourites in bureaucracy
Article 105 of the Indian Constitution provides immunity to MPs from any legal action for any act done in discharge of their duties even if it is wrong. In the famous JMM bribery case of 1993, when it came to light that several MPs’ were bribed to save the Government in power, these MPs’ took shelter under this Article to save their hide. In 2002 The Constitution Review Committee recommended this provision to be amended but our political leaders stood as one to negate this.
As the Kishore Chandra Deo Committee’s investigation into the cash-for-votes scandal trundles along, the nation waits to see whether it will be able to remedy the erosion of public faith in the Indian parliamentary system[11].
The seven-member committee chaired by Kishore Chandra Deo was set up by Lok Sabha Speaker Somnath Chatterjee under the Rules of Procedure and Conduct of Business in the House of the People (the “Rules”). Such committees are empowered to call for documents and summon individuals for carrying out their investigation. It is noteworthy that the BJP has submitted transcripts of the alleged sting operations conducted by news channel CNN-IBN to the Deo committee. Further, as has been widely reported in the media, various MPs have been examined[12].
Even assuming that the committee was to find the MPs guilty, there is a doubt whether it can punish them. The committee is empowered to issue a report on the basis of its investigations. But this is about as far it can go. In the absence of any punitive powers, the Deo committee lacks the teeth to expel the alleged bribe-takers, if found guilty, or punish them in any other way.
Even the speaker is powerless to act on the basis of the committee’s report. The speaker enjoys no power to disqualify MPs from membership in event of a red card being issued by such a panel. Hence, it is undeniable that the Deo committee is a mere paper tiger.
Another significant roadblock in the path to the expeditious resolution of this issue is Supreme Court’s judgment in JMM bribery case. In a judgment tainted with the ignominy of having to coin phrases such as “bribe-giving MPs” and “bribe-taking MPs”, the law on this point was settled by the Supreme Court in P.V. Narasimha Rao v. State[13]. The court held that MPs who voted against a no-confidence motion against the then Narasimha Rao government, after receiving a bribe, would enjoy immunity from prosecution under Article 105(2) of the Constitution. The judgment also classified MPs as “public servants” under the Prevention of Corruption Act, 1988 (the Act). The majority concluded that since there was no authority to grant sanction for prosecution of the MPs, they could not be tried under the Act. The beneficial outcomes of this finding are highly questionable as it exempted “bribe-taking MPs” from prosecution.
However, a detailed analysis of section 19(1)(c) of the Act[14] would have yielded the residual provision with regard to grant of sanctions for persons not specifically listed therein. In such cases, the power lies with the authority competent to remove such offending person from office. With regard to MP’s, the authority with whom such power rests is the president in accordance with Article 103 of the Constitution, which decision must be exercised in accordance with the opinion of the Election Commission. In saying so, we beg to differ with the Supreme Court’s interpretation of Article 103 in P.V. Narasimha Rao v. State, which had held that the president cannot be considered to be the authority contemplated under the Act.
Therefore, the constitutional scheme does provide a mechanism for removal of MPs for incurring disqualifications during their tenure in Parliament. Accordingly, reading section 19(1)(c) together with Article 103, it is evident that no vacuum exists with regard to an authority to grant sanction for prosecution.
Findings of the Supreme Court on MPs’ immunities under Article 105(2) are not been agreed because the two principal elements over which the provisions of Article 105(2) of the Constitution confer immunity on an MP from criminal prosecution are in respect of “freedom of speech” and the “right to give vote” in Parliament or any committee thereof. The immunity by its very nature is thus only available with respect to parliamentary activities. It would be a travesty of constitutional interpretation if such immunity was applied to acts done in an MP’s personal capacity. Thus, the commission of the offence of bribery, having been done in personal capacity, cannot enjoy constitutional protection.
An interpretation of Article 105(2), enabling an MP to claim immunity from prosecution for bribery and, thereby, placing them above the law, would not only be repugnant to the healthy functioning of parliamentary democracy, but would also be subversive of the principle of equal treatment of all that’s enshrined in the Constitution.
It is high time for a review of the Supreme Court judgment in P.V. Narasimha Rao v. State[15] by a duly constituted bench. This will also seek to ensure that scenes which were aired across the international media do not recur. Thereafter, at least it would be clear to all and sundry that legislators taking a bribe cannot crouch behind constitutional protections and would be prosecuted under the provisions of the Act.
It is time that Article 105 of the constitution is amended to allow the politicians to be dealt with legally for their any act of purposeful omission in discharge of their duties. They should be brought under the preview of Lok Pal Bill, which must be passed. Centarl Vigilance Commission Must be made autonomous like Election Commission with C.B.I. coming under it. This along with proactive media will be enough to bring in accountability in our politics.
What the country require is severe vigilance by the young people of the country which presently has highest number of young generation in the world. If like the Azzadi (independence ) movement  like that of late 1920's led by young generation of those times  with the help of electronic media is initiated all over the country against corruption, of course nonviolent though Government would adopt violence to crush it, these self serving Netas of this (many of them are hardcore criminals)who are thriving on divisive politcs and filling their safes with unaccounted money for their next several generations, may perhaps find it difficult to serve themselves. Otherwise no hope with such a poor legal system which judges themselves are not interested to improve for obvious reasons.

SUGGESTION:
Privileges are granted as Constitutional Right to the Members of Parliament under the Constitution of India. Privileges are enshrined under the Article 105 and 194 of the Constitution. Drafters of the Constitution inserted privileges with the main objective that such privileges would help the members to perform and carry out their functions without hindrance.
However objective of inserting the privileges have been totally misused by members and there is need for an amendment to stop the misuse of privileges as granted under the Constitution. Henceforth law is been proposed.




[1] Section 67: Government of India Act, 1919.
[2] Roy, Prititosh., “Parliamentary Privilege in India”, Chapter-4, titled 'Historical Background of Parliamentary Privilege in India (1915-1950)', (1991),  p. 53.
[3] Section 323 and Section 135A: Code of Criminal Procedure,1898.
[4] Supra176.
[5] Sub-Section (1) of Section 71: "Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature there shall be freedom of speech in every Provincial Legislature" and that every member shall be entitled to immunity from "any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof".
[6] Sub section (2) of Section 71: In other respects the privileges of members of a Chamber of a Provincial legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the commencement of this Part of this Act enjoyed by members of the Legislative Council of the Province.
[7] Subsection (3) of Section 71: Nothing in any existing Indian Law, and, notwithstanding anything in the foregoing provisions of this Section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a chamber thereof or on both Chambers sitting together or any Committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner.
[8]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.             
[9] Courts not to inquire into proceedings of Parliament.- (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to
the jurisdiction of any court in respect of the exercise by him of those powers.
[10] 1998 4 SCC 626.
[13] (1998) 4 SCC 626.
[14] The Prevention of Corruption Act, 1988.
[15] Supra No.66.
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