ANALYSIS
OF CORRUPTION CASE LAW
(1980 – 1990)
The Antualy case has assumed over seven years in Indian Courts the
stature of an epic narration. The judicial disclosure reaffirms the insightful
observation of Paul Ricoeur that to “begin with all discourse is produced as an
event” and it is “realized as an event but understood as a meaning[2]”.
On 9th June, 1980 Antulay (hereafter called accused)
became the Chief Minister of Maharashtra. One Ramdas Nayak (hereafter
complainant) on September 1, 1981 applied to the Governor under Section 197,
CrPC and Section 6 of the Prevention of Corruption Act for sanction to
prosecute the appellant. Without waiting for the sanction, the complainant
filled a complaint before the Addl. Metropolitan Magistrate. The learned
magistrate refused to take cognizance of the offences under Prevention of
Corruption Act without sanction for prosecution. Thereafter complaint was filed
in the High Court. The High Court rejected the complaint.
In the meantime, another
development had taken place which may be briefly noticed. One Shri P.B. Samant,
who has also filed an identical complaint against the accused, along with
several others filed a Writ Petition No. 1165 of 1981 in the High Court of
Judicature at Bombay challenging the method of distribution of ad hoc allotment
of cement in the State of Maharashtra as being contrary to the rule of law and
probity in public life. On January 12, 1982 accused
resigned from the post of Chief Minister in deference to the judgment of the
Bombay High Court.
On July 28, 1982 Governor granted sanction under Section 197 of Cr
PC and Section 6 of Prevention of Corruption Act in respect of 5 items relating
to 3 subjects only. The complainant filled a fresh complaint before the Special
Judge bringing in more allegations and including those which had been refused.
This was challenged by the accused. Special Judge rejected the application by
the accused challenging his jurisdiction to take cognizance of the complaint.
Special Judge discharged the accused holding that a MLA is a public
servant and there was no valid sanction for a public servant. The complainant
filled an appeal under Article 136 of the Constitution. Supreme Court was
pleased to hold that an MLA is not a public servant and set aside the order.
Instead of remanding the case to the Special Judge for disposal and transferred
the same to the Bombay High Court. Accused raised an objection regarding his jurisdiction
to try the special cases which could be tried only by Special Judges. The High
Court refused to entertain this objection to jurisdiction holding that he was
bound by the orders of the Supreme Court.
On the instance of the accused the Supreme Court clarified its
decision and dismissed appellants SLP. Court also dismissed writ petition filed
under Article 32 by the accused. Further the Supreme Court held that the learned Special Judge was
clearly in error in holding that a M.L.A. is a public servant within the
meaning of the expression under Section 12(a)
and further erred in holding that a sanction of the Legislative Assembly of
Maharashtra or majority of the members was a condition precedent to taking
cognizance of offences committed by the accused. For the reasons herein stated
both the conclusions are wholly unsustainable and must be quashed and set
aside.
(1990 – 2000)
JMM
BRIBERY CASE:
The facts involved in the Constitution Bench decision in P. V. Narasimha Rao v. State[3] (JMM bribery case) are
that in 1991 election to the Lok Sabha, Congress (I) Party remained fourteen
members short of the majority and it formed a minority Government with P.V.
Narasimha Rao as the Prime Minister. The
said Government had to face a motion of no-confidence on 28.07.1993 and it
somehow managed to defeat the motion by mustering the support of 265 members as
against 251. One Revinder Kumar of the
Rashtriya Mukti Morcha filed a complaint (FIR) with the “CBI” alleging that a
criminal conspiracy was hatched pursuant to which certain members of Parliament
belonging to Jharkhand Mukti Morcha and certain others owing allegiance to
Janta Dal (Ajit Singh Group) agreed to and did receive bribes from P.V.
Narasimha Rao and others to give votes with a view to defeat the no-confidence
motion. A criminal prosecution was
launched against the bribe-giving and bribe-taking Members of Parliament under
the Prevention of Corruption Act, 1988 and under Section 120-B of the Indian
Penal Code. The Special Judge took
cognizance of the offence of bribery and criminal conspiracy. The persons sought to be charged filed
petitions at the High Court for quashing the criminal proceedings. The High Court at Delhi dismissed the
petitions.
On presentation of appeals by way of special leave and upon
reference of the case to a Constitution Bench, the Court formulated for
decision these questions:
(i) 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?
(ii) 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 “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 to grant sanction for his prosecution under the 1988 Act?
The Constitution Bench by a majority of three to two
answered the first question in the affirmative, except in case of A-15 Ajit
Singh (who, unlike the other co-accused did not case his vote on the
no-confidence motion), holding that the bribe-taking Members of Parliament who
voted on the no-confidence motion are entitled to immunity from criminal
prosecution for the offences of bribery and criminal conspiracy conferred on
them by Article 105 (2) of the Constitution.
The Court in answer to the second question, ruled that a Member of
Parliament is a “public servant” within Section 2(c) of the 1988 Act. It also concluded that since there is no
authority to grant sanction for prosecution of the offending persons for
certain offences, they cannot be tried under the Prevention of Corruption Act,
1988 for such offences.
The answer given by the majority to the first question
seems to have no support of precedents, theory and practice. Article 105(2)
confers no immunity on a Member of Parliament involved in a case of bribery.
The provisions of Article 105(2) of the Constitution confer immunity on a
Member of Parliament from criminal prosecution only in respect of the “freedom
of Speech” and the “right to give vote” by him in Parliament or any committee
thereof[4]. The immunity or protection is available only
in regard to these parliamentary or official activities. Such immunity is not available for any acts
done in his private or personal capacity.
The conduct of a Member of Parliament involving the commission of
offences of bribery and criminal conspiracy having been done in personal
capacity cannot, on any reasoning, be held to be acts done in the discharge or
purported discharge of his parliamentary or official duty in Parliament. Taking of bribe is obviously a criminal act.
In initiating criminal prosecution of a public servant
under the cover of immunity, certain principles have emerged around Section 197
Cr. PC. In a case of bribery punishable
under Section 161 of the Indian Penal Code in Gill v. King[5] the Privy Council
approving the statement of law in the Federal Court decision in Hori Ram Singh (Dr.) v. Emperor[6] observed:
“A public servant can only be said to act or purport to
act in the discharge of his official duty if his act is such as to lie within
the scope of his official duty. Thus, a
Judge neither acts nor purports to act as a Judge in receiving bribe, the
judgment he delivers may be such an act, nor does a Government Medical Officer
act or purport to act as a public servant in picking the pocket of a patient
whom he is examining, though the examination itself may be such an act. The test may well be, that when a public
servant is challenged, he can reasonably claim that what he does, he does in
virtue of his office.”
A Constitution Bench further in Satwant Singh v. State of
Punjab[7] agreeing with another
Constitution Bench decision in Matajog
Dobey v. H.C. Bhari[8] and in Amrik Singh v. State of Pepso[9] observed:
“It appears to us to be clear that some offences by
their very nature cannot be regarded as having been committed by public
servants, while acting or purporting to act in the discharge of their official
duty. For instance, acceptance of a
bribe is one of them and an offence of cheating and abetment thereof is another
….such offences have no necessary nexus between them and the performance of the
duties of a public servant: ‘The official status furnishing only the occasion
or opportunity for the commission of such offences[10].””
The majority in the JMM bribery case thus does not have the support
of precedents for holding that the bribe-taking Members of Parliament in
receiving a bribe had acted in the discharge of their parliamentary or official
duty.
Immunity available only for acts inside Parliament or a Committee:
The immunity under clause (2) of Article 105 from criminal
prosecution is available to a Member of Parliament only from any liability
arising out of “anything said” or “any vote given” inside Parliament or in any
committee thereof. The clause therefore
has absolutely no application to any act of a Member constituting an offence of
bribery outside Parliament as to bar his liability for criminal
prosecution. The Constitution Bench in Tej Kiran Jain v. N. Sanjiva Reddy[11] interpreting the
expression “in Parliament” and “in the course of the business of Parliament”
lends support to it.
Constitution Bench in Jatish
Chandra Ghosh (Dr) v. Hari Sadhan
Mukherjee[12]
has also held that the immunity available to a speech made by a Member inside
the legislative chamber of an Assembly under clause (2) of Article 194 (equivalent
of Article 105(2)) shall not be available in regard to the same speech when it
was got published by a legislator “outside” the four walls of the Legislative
Assembly.
It, therefore, follows that the majority in the case under comment
could not have extended the immunity to acts to bribery and criminal conspiracy
committed by the bribe-giving and bribe-taking Members of Parliament “outside”
Parliament by creating an illusory “nexus” with the subsequent act of casting
votes by bribe-taking Members inside Parliament subsequently.
The facts of the JMM bribery case disclose that the conduct of the
Members of Parliament without the four walls of the House itself alone
constituted the completed offences of bribery and conspiracy as per the
definition of these offences under the Prevention of Corruption Act, 1988 and
the Penal Code and the same were legally capable of proof dehors the act of
casting votes subsequently on the no-confidence motion by the bribe-taking
Members in Parliament. The submission cannot
be better supported than by making a reference to the finding of the majority
itself in the appeal of A-15 Ajit Singh, who has been ordered to stand trial
for bribery and conspiracy only on the basis of his conduct outside the four
walls of the Lok Sabha, because unlike the other co-accused, he had not given
his vote on the no-confidence motion.
Under the Prevention of Corruption Act, if a bribe is given or taken
by a public servant (Member of Parliament) to use his position dishonestly,
that is, to favour the briber as opposed to dealing with the matter before him
independently on merits, the crime of bribery is complete. Explanation (d) to Section 7 of the
Prevention of Corruption Act[13], shows that the non-proof
of these subsequent acts would not render the offence of bribery
incomplete. This provision also
establishes the unessential nature of the nexus or connection if any, between
the criminal act outside and the act of casting vote inside Parliament. Besides, any prior assurance of giving a favourable
vote inside Parliament is neither an ingredient of the crime nor a “material
fact” in a pleading necessary to complete the picture of the “cause of action”
to prove the crime of bribery in a criminal court. Therefore, the finding of the majority that
the crime “is in respect of” the vote cast on the no-confidence motion and a
proof of the goings-on in Parliament is necessary at the trial, has no basis to
stand upon.
The court proceedings that fall within the ambit of clause (2) of
Article 105 can be only those which “arise out of” and are subsequent to
“anything said” or “any vote given” in Parliament or any committee thereof and
not those which arose from outside antecedent conduct of the Members of
Parliament.
The criminal liability that has arisen in the JMM bribery case, is
in relation to the conduct of the Members of Parliament that “preceded” the
“giving of votes” by them on the no-confidence motion, which could not be held
by the majority to have arisen from the subsequent act of casting votes. In
fact the said liability in the context of the Prevention of Corruption Act can
be said to have arisen independently of the votes cast.
Besides, the subject-matter of the case, the nature of the
proceedings and the kind of the court which is dealing with its shows that it
is a criminal proceeding involving an offence of bribery which will result
either in the acquittal or conviction and sentence of the bribe-taking Members
of Parliament. Had it been a proceeding
“in respect of” votes that were case then it would have been a civil proceeding
impeaching the validity of the votes cast on the no-confidence motion. An
instance of a civil proceeding “in respect of” votes given is available in the
U.S. Supreme Court decision in Kilbourn
v. Thompson[14]. The other illustration
of a court proceeding that may fall within the scope of clause (2) of Article
105 is the one of the Constitution Bench decision in T. K. Jain v. Sanjiva
Reddy[15].
Some persons who held the Sankaracharya in high esteem had in that case filed a
suit for damages for defamatory statements made certain Members of Parliament
inside the Chamber of Parliament.
Another example in relation to clause (2) of Article 194 is also
available in the Constitution Bench decision in Dr. Jatish Chandra Ghosh v.
Hari Sadhan Mukherjee[16]
already noticed.
It is noteworthy that clause (2) of Article 105 is, in terms,
limited to only those proceedings that impugn “anything said”, that is, “any
speech made” and “any vote given” in Parliament or any committee thereof. Thus, the findings in the JMM bribery case
that the criminal court proceedings were “in respect of” the “votes given”
which conferred the immunity on Members of Parliament seems incorrect. Besides, if the Constituent Assembly had
intended to confer absolute immunity under clause (2) in respect of the
liability that may arise from any criminal proceedings then it would have been
on the pattern of clauses (2) and (3) of Article 361[17] in respect of the
President of India and Governors of States.
Minority in JMM bribery case looking into the object of conferring
the immunity has relied upon the Constitution Bench decision in the Sub-Committee on Judicial Accountability v.
Union of India[18] and has observed that:
“An interpretation of the provisions of Article 105(2),
which would enable a Member of Parliament to claim immunity from prosecution
for an offence of bribery in connection with anything said or vote given by him
in Parliament and thereby placing such Members above the law, would not only be
repugnant to the healthy functioning of parliamentary democracy but also will
be subversive of the “rule of law”, which is also an essential part of the
basic structure of the Constitution”.
It is interesting to note that the law on the point is the same in
the USA Chief Justice Burger US v. Brewster observed:
“The Speech bate Clause has to be read broadly to
effectuate its purpose of protecting the independence of the legislative
branch. But its purpose was not to make
members ‘super-citizens’ immune from criminal liability. The purpose of the clause was to protect the
individual member not simply for his own sake, but to preserve the legislative
integrity of the legislative process, but the shield does not extend beyond what
is necessary to preserve the integrity of the legislative process. Financial abuses by way of bribes, perhaps
even more than ‘executive power’, would grossly undermine legislative integrity
and defeat the right of the public to honest representation.”
Lord Salmon who chaired in 1976 the Royal Commission “On Standards
of Conduct in Public Life”, spoke in the House of Lords in respect of Article 9
of the Bill of Rights, 1688 thus:
“Now this is a charter for freedom of speech in the
House, it is not a charter for corruption…..”
CONCLUSION:
Article 105(2) confers immunity on Members of Parliament when they
discharge or purport to discharge their parliamentary or official duty of
“making of speech” or “giving of votes” in Parliament or any committee thereof.
The act of receiving a bribe by a Member is not in pursuance of his
parliamentary or official duty aforesaid; the official status of a Member of
Parliament merely furnished the occasion or opportunity for the commission of
an offence of bribery and bribe-taking Members in the case under comment are
not entitled to immunity from criminal prosecution.
The immunity under clause (2) of Article 105 becomes available to a
Member when he “makes a speech” or “gives his vote” in the parliamentary
proceedings inside one of the Chambers of Parliament or in any committee
thereof. Since the acts involving conspiracy and acceptance of bribe were
wholly done by the accused outside the four walls of the legislative Chamber,
it did not attract the immunity provision so as to protect them from criminal
prosecution. Besides, these criminal
acts themselves constitute completed crimes without reference to any goings on
in of any proof or disproof of casting of vote by a Member in Parliament. Therefore, such offences could not be deemed
to be acts “in respect of’ the act of “giving of vote” inside Parliament.
Article 105(2) may give immunity from liability arising out of
private criminal offences involving defamation, libel or slander but confers no
immunity from criminal prosecution for “public offences” , that is, offence
against the King or State. Obviously, no
King or State can be expected to confer such immunity which in all
probabilities will lead to the destruction of the kingdom or State. This position is also evident from the
non-applicability of the privilege of “freedom from arrest” of the Members of
the House of Commons in England to criminal matters, which also remains the
legal position under clause (3) of Article 105, its application being “limited
to civil causes”.
An interpretation of clause (2), which would enable a Member to
claim immunity from prosecution for an offence of bribery, a selfish, vile and
depraved act, would not only be repugnant to the healthy development of
democratic institutions provided for in the Constitution, but would be subversive
of the Constitution itself. The majority
in the case under comment was not at all expected to give a construction of the
Constitution involving such dire consequences.
The Constitution is an organic document and the court should have
looked at the functioning of the Constitution as a whole. The constitution in order to maintain the
highest standard of probity in public life and to keep parliamentary life
unsullied, has provided detailed qualifications and disqualifications for being
chosen or being Member of Parliament, including taking an oath of allegiance to
the Constitution and excluding persons from the election, convicted of crimes
or disqualified for committing corrupt practices at an election or dismissed
from public service for corruption and disloyalty or persons holding office of
profit under the Government, or defecting from one political party to
another. Even an independent member is
made to lose his seat for joining a political party. In Braj
Raj Singh Tiwari, Re[19]and others in the very
first case of incurring disqualification in 1952 before the Chief Election
Commission, no fewer than twelve members of the Vindhya Pradesh Legislative
Assembly lost their seats under Articles 191-192 merely for the receipt of
rupees five for every meeting of the District Advisory Committees for not being
able to prove “out-of-pocket expenses” equivalent to the compensatory amount
paid.
When the Constituent Assembly did not consider it necessary even in
the interest of an independence judiciary to afford some protection to the
Hon’ble Judges of the Supreme Court and of the High Courts, even though the
High Court Judges at one time had enjoyed such protection under the provisions
of 13 Geo. III, Chapter 63, Sections 17 and 39 along with the Governor General
etc. from trial in criminal cases by Indian courts, there could be no question
of the Constituent Assembly giving immunity claimed by bribe-taking Members of
Parliament under clause (2) of Article 105.
The Founding Fathers, most of whom had participated in the national
freedom struggle and who abolished all titles, dignities, powers, privileges
and immunities enjoyed by the erstwhile Rulers of the Indian States, and other
feudal elements, and were fired with great ideals, could not possibly declare Members
of Parliament and of the Legislatures of the States “super-citizens”. They could never make provisions in the
Constitution to condone the commission of offences against the State including
offences of bribery and corruption.
The decision of the majority, it is submitted with respect, is in
serious discord with the letter, the ideals, and aspirations of the
Constitution while the minority opinion is in harmony with them. The reasoning of the minority also coincides
with the present national outcry against politicians with dubious, criminally
tainted records and the wish of ordinary people to keep such persons out of
legislative chambers.
The decision in the JMM bribery case, it is submitted in all
humility, requires immediate correction by a competent Bench of the Hon’ble
Supreme Court.
(2000 – 2007)
RAJA
RAM PAL CASE:
In the case of Raja Ram Pal
v. The Hon’ble Speaker, Lok Sabha &
Ors[20] the Court dealt with the legal question of
whether cash for query is a mere moral wrong or not? Court
held that:
“It was also urged that taking
on its face value, the allegations against the petitioners were that they had
accepted money for tabling of questions in Parliament. Nothing had been done
within the four walls of the House. At the most, therefore, it was a 'moral
wrong' but cannot fall within the mischief of 'legal wrong' so as to empower
the House to take any action. According to the petitioners, 'moral obligations'
can neither be converted into 'constitutional obligations' nor non-observance
thereof would violate the scheme of the Constitution. No action, therefore, can
be taken even if it is held that the allegations were well-founded.
I am unable to uphold the
contention. It is true that Indian Parliament is not a 'Court'. It cannot try
anyone or any case directly, as a court of justice can, but it can certainly
take up such cases by invoking its jurisdiction concerning powers and
privileges.
Court further relied on Sir Erskine May while
dealing with 'Corruption or impropriety', Court held that:
“The acceptance by a Member of
either House of a bribe to influence him in his conduct as a Member, or of any
fee, compensation or reward connection with the promotion of or opposition
to any bill, resolution, matter or thing submitted or intended to be submitted
to either House, or to a committee, is a contempt. Any person who is found to
have offered such a corrupt consideration is also in contempt. A transaction of
this character is both a gross affront to the dignity of the House concerned
and an attempt to pervert the parliamentary process implicit in Members' free
discharge of their duties to the House and (in the case of the Commons) to the
electorate.”
Reference was also made to "Cash for
questions", which started in 1993. It was alleged that two members of
Parliament, Tim Smith and Neil Hamilton received payments/gifts in exchange for
tabling parliamentary questions. Both of them had ultimately resigned.
The rapidly accelerating and intensifying
atmosphere of suspected corruption-sleaze-in public life caused the Prime
Minister to appoint a judicial inquiry into standards of conduct in public
life.
The Committee went into the allegations against the
officers of Parliament and recommended punishment. It criticized the role of
the Press as well, but no action had been taken against the newspaper.
Solomon Commission and Nolan Committee also
considered the problem of corruption and bribery prevailing in the system and
made certain suggestions and recommendations including a recommendation to
clarify the legal position as to trial of such cases.
Court here further states that we are not
expressing any opinion one way or the other on the criminal trial of such acts
as also the correctness or otherwise of the law laid down in P.V.
Narsimha Rao[21]. To
me, however, there is no doubt and it is well-settled that in such cases,
Parliament has power to take up the matter so far as privileges are concerned
and it can take an appropriate action in accordance with law. If it feels that
the case of 'Cash for query' was made out and it adversely affected honesty,
integrity and dignity of the House, it is open to the House to attempt to
ensure restoration of faith in one of the pillars of democratic polity.
PRESENT VIEW:
CASH FOR VOTE SCAM (22.7.08)
Three Bharatiya Janata Party MPs created history by
smuggling in Rs 1 crore into the Lok Sabha. When Ashok Argal (Morena), Fagan
Singh Kulaste (Mandla) and Mahavir Bhagora (Salumber) got up from their seats
and moved towards the Speaker's chair, they took out leather bags and stunned the
nation by waving wads of Rs 1,000 notes.
The picture will remain etched in nation's memory but are
the allegations by Argal that he was paid the money to abstain from voting
during the trust vote. Whatever evidence was reportedly
recorded through the television channel CNN-IBN's sting operation is not yet
made public, but the BJP attacked the Congress and the SP by briefing media
about their side of story.
BJP General Secretary Arun Jaitley on Wednesday gave the
media evidence against Amar Singh. He stated that "The first hard evidence
in this case of bribing of our MP is that SP's leader Revti Raman Singh went to
the house of Argal. The cameraman and reporter Siddhartha Gautam are the
witnesses. Both belong to CNN-IBN. Argal's room is bugged and the whole
conversation between Revti Singh and Argal is video-recorded where Singh
mentions that 'aap abstain kijiye', so Argal asks him, "What will
be the terms?" Singh says, "jo amount tay hona hai vo Amar Singh
ji ke saath meeting main tay hoga'. (The amount will be fixed in a meeting
with Amar Singh)."
"Next, we have statement of three MPs. Then there were
security guards present at Argal's house. (They know Singh visited Argal's
home.) The drivers of the cars that drove Singh to Argal's home can be made
witness, too. After all, criminal law will apply here. There are many ways to
investigate the bribing episode. Revti Singh fixes the appointment at 9.30/10
at Amar Singh's home. The driver who drove them to Amar Singh's home is a
witness. The reporter and cameraman of CNN-IBN who followed them are witness
again. There is a video recording of them going in and coming out of Amar
Singh's home."
"Whatever Amar Singh and the BJP MPs discussed is
available in their statement. BJP MPs said in their statement that Amar Singh
told them that they (UPA) have got the numbers (majority in Parliament). But,
still, he can pay Rs 3 crore as a "token" amount to each of them to
abstain. He said he would give some advance, too. He insisted that Argal
should take along with him the advance money. But Argal told Amar Singh how
could he take money out from his home when the media people are standing
outside his house? So Amar Singh said that his man would deliver the advance
money to his house.
"At that time, Amar Singh also arranged a telephonic
talk with Congress' Ahmed Patel where Patel says "okay" to the
arrangement. Then there is video evidence of all of them coming out of Amar
Singh's home.
"Act three of the story is played again at Argal's
home. Within 30 minutes of Argal reaching home, Sanjeev Saxena from Amar
Singh's office arrives. Scores of journalists have seen him at Amar Singh's
residence still Amar Singh now claims that he doesn't know him at all. Saxena
comes with a bag full of money. He told Argal that Amar Singh has sent Rs 1
crore as advance money and remaining amount will be paid after the voting.
Third BJP MP inquires about his advance; then Saxena dials Amar Singh and both
talk about the money matter. This talk is recorded on hidden camera. The
evidence of the calls can easily be found. If someone says that there is
inadequate evidence of bribes to MPs, then they will have to rewrite the law of
evidence."
"In short, you have an evidence of an offer, an
evidence of a meeting, and, you have evidence of delivery of the amount. These
evidences are conclusive for conviction of all the conspirators."
"The JMM bribery case judgment said in the case of
bribing of JMM MPs the Prevention of Corruption Act is not applicable because
it was the case of voting inside the Lok Sabha. I don't agree with the judgment
and I think it should be reviewed. But, in this case the JMM judgment may not
apply because it is the case of money paid outside the Lok Sabha to not enter
it. I think, any Indian can file an RTI application and access the CD from the
Speaker."
"The Congress can't get away from the blame because
the agent (Samajwadi Party) was acting only for the benefit of the principal
(Congress). The channel is not showing it, but they are not denying the
existence of the tape. We know the truth and obviously, only truth is recorded
on the tape.[22]"
The Enquiry Committee that went into the alleged cash-for-vote scam during the July 22 trust vote
would be presenting its report to Lok Sabha on Thursday.
The Committee was constituted by Lok
Sabha Speaker Somnath Chatterjee after
three BJP MPs -- Ashok Argal, Fagan ingh Kulaste and Mahavir Bhagora --
displayed wads of currency notes in the House alleging that huge sums were
offered to them to save the Manmohan Singh government.
The panel headed by senior Congress MP V Kishore Chandra
Deo will place the report on the table of the House tomorrow, sources said. In
its report, the Committee is understood to have suggested that the money trail
could be probed by an investigating agency like CBI or the Income Tax
department.
The voluminous report which will comprise evidence given by
witnesses and verbatim transcriptions of sittings also carry the "dissent"
notes by the Bharatiya Janata Party's V K Malhotra, Mohd Salim of the Communist
Party of India-Marxist and Ramgopal Yadav of the Samajwadi Party.
The three BJP MPs earlier alleged that Samajwadi Party
leader Amar Singh and Congress leader
Ahmed Patel were behind the attempt to lure them to the ruling side. Singh and
Patel have, however, denied the charges.
While Argal and Kulaste have appeared before the panel, the third BJP MP
Mahavir Bhagora could not appear as he was suffering from heart ailment[23].
CONCLUSION
These privileges should not be
allowed to be used in such a manner as to nullify themselves 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.
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.
Indian legislatures have been enjoying the privileges of freedom of speech
since the commencement of the constitution in 1950. The legislative privileges
have been expressly provided in article 105 and 194 in the case of state legislature.
The privilege of freedom of speech is absolute and sole responsibility for
preventing the misuse of privileges and punishing those who are guilty thereof.
In view of the
immunity conferred on the member's right to speech and action in the House, its
misuse can have serious effects on the rights and freedom of the people who
could otherwise seek the protection of the courts of law. Members, therefore,
as people's representatives, are under greater obligation to exercise this
right with utmost care and without any prejudice to the law of the land. The
Committee of Privileges, has emphasized that a Member of Parliament does not
enjoy unrestricted licence of speech within the walls of the House. The
Committee has observed: It is against the rules of parliamentary debate and
decorum to make defamatory statements or allegations of incriminatory nature
against any person and the position is all the worse if such allegations are
made against persons who are not in a position to defend themselves on the floor
of the House. The privilege of freedom of speech can only be secured, if
members do not abuse it.
There is a clear demarcation as to what all rights and privileges
are absolute and what are not. For example, in India Legislative Assemblies and
Parliament never discharge any judicial function and their historical and
constitutional background does not support their claim to be regarded as courts
of record in any sense. No immunity from scrutiny
by courts of general warrants issued by House in India can therefore be claimed.
by courts of general warrants issued by House in India can therefore be claimed.
Both the
Parliament and State Legislatures have a duty to look carefully before making
any law, so that it doesn't harm other rights. It is also a duty of the members
to properly use these privileges and not misuse them for alternate purposes
that is not in the favour of general interest of nation and public at large.
[1] R.S.Nayak v. A.R.Antulay, AIR 1984 SC 684.
[2]
Ricoeur, Paul, Hermeneutics and the Human
Sciences, 137 (1981 edn. And trs. John B. Thompson).
[3]
(1998) 4 SCC 626.
[4] Article 105(2) lays down: “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…..”.
[5](1948)
75 IA 41.
[6]1939
FCR 159.
[7]
(1960) 2 SCR 89, 100-101.
[8](1955)
2 SCR 925, 932-933.
[9](1955)
1 SCR 1302.
[10] It is interesting to see that the law is not different in the USA
also as is evident from the observations of Chief Justice burger in United States v. Brewster, (33 L Ed 2d 507) which run thus: “Taking a bribe is no
legislative process or function, it is no legislative act; it is not by any
conceivable interpretation, an act performed as part of, or even incidental to
the role of a legislator.”
[11](1970) 2 SCC 272.
[12](1961) 3 SCR486.
[13] Explanation (d) of Section 7 : “a person who receives
gratification as a motive or reward for doing what he does not intend to do or
is to or is not in a position to do or, has not done”.
[14] 26 L Ed 377.
[15] Supra No. 139.
[16]
Supra No.140.
[17] Clause (2) Article 361: No Criminal proceeding whatsoever shall be
instituted or continued against the president or the Governor a State in any
Court during his term of office.
“Clause
(3) Article 361: No process for the arrest
or imprisonment of the President or the Governor of a State shall issue from
any court during his term of office“
[18] (1991) 4 SCC 699 (719).
[19] 51 ELR 1.
[21]Supra No.66.
[22] <http://www.rediff.com/news/2008/jul/23upavote26.htm>,
<last visited on 16th of Mar, 2009>.
[23]<http://www.rediff.com/news/2008/dec/10upavote-parliamentary-panel-to-submit-report-on-cash-for-vote.htm>
<last visited on 16th of Mar, 2009>.
