TaxTMI 
TaxTMI 
1998 (4) TMI 503
X X X X Extracts X X X X
X X X X Extracts X X X X
....J. 1. On 26th July, 1993, a motion of no-confidence was moved in the Lok Sabha against the minority government of P.V. Narasimha Rao. The support of 14 members was needed to have the no-confidence motion defeated. On 28th July, 1993, the no- confidence motion was lost, 251 members having voted in support and 265 against. Suraj Mandal, Shibu Soren, Simon Marandi and Shailender Mahto, members of the Lok Sabha owing allegiance to the Jharkhand Mukti Morcha (the JMM), and Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed, members of the Lok Sabha owing allegiance to the Janata Dal, Ajit Singh group (the J.D., A.S.), voted against the no-confidence motion. Ajit Singh, a member of the Lok Sabha owing allegiance to the J.D., A.S., abstained from voting thereon. 2. It is the respondents, case that the above named members agreed to and did receive bribes, to the giving of which P.V. Narasimha Rao, M.P. and Prime Minister, Satish Sharma, M.P. and Minister, Buta Singh, M.P. V. Rajeswar Rao, M.P., N.M. Ravanna, Ram Linga Reddy, M.L.A., M. Veerappa Moily, M.L.A. and Chief Minister, State of Karnataka, D.K. Adikeshavulu, M. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....were party to a criminal conspiracy and agreed to or enter into an agreement with your co-accused P.V. Narasimha Rao, Capt. Satish Sharma, Buta Singh, V. Rajeshwara Rao, H.M. Revanna, Ramlinga . Reddy, M. Veerappa Moiley, D.K. Audi Keshvalu. M, Thimmegowda, Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Shibu Soren, Simon Marandi, Shailendra Mehto (Approver, since granted pardon on 8.4.97), Janta Dal (Ajit Group) MPs, Ajit Singh, Ram Lakhan Singh Yadav, Roshan Lal, Anadi Chran Dass, Abhey Partap Singh, Haji Ghulam Mohd. Khan and late G.C. Munda to defeat the no confidence motion moved against the then Congress (I) Government headed by accused Shri P.V. Narasimha Rao on 26.7.93 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 thereby you have committed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which is under challenge, the High Court dismissed the petitions. Hence, these appeals. The appeals were heard by a bench of three learned judges-and then referred to a Constitution Bench. The argument on behalf of the appellants to be considered by the Constitution Bench, broadly put, is that, by virtue of the provisions of Article 105, they are immune from the prosecution and that, in any event, they cannot be prosecuted under the Prevention of Corruption Act, 1988. Privilege. Article 105 of the Constitution reads thus: "105. Powers, privileges, etc., of the House of Parliament and of the members and committees thereof. - (1) Subject to the provisions of this Constitution and to the rules and standing order regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, papers, votes or proceedings. (3) In other respe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the spoken word has. Two comments need to be made in regard to the plain language of the first part of sub-article (2). First, what has protection is what has been said and a vote that has been cast, not something that might have been said but was not, or a vote that might have been cast but was not. Secondly, the protection is broad, being "in respect of. It is so given to secure the freedom of speech in Parliament that sub-article (1) provides for. It is necessary, given the role members of Parliament must perform. The protection is absolute against court proceedings that have a nexus with what has been said, or a vote that has been cast in Parliament. The second part of sub-article (2) provides that no person shall be liable to any proceedings in any court in respect of the publication of any report, papers, votes or proceedings if the publication is by or under the authority of either House of Parliament, A person who publishes a report or papers or votes or proceedings by or under the authority of Parliament is thereby given protection in the same broad terms against liability to proceedings in any court connected with such publication. The Constitution having dealt with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals". The privileges of the House of Commons, as distinct from those of the House of Lords, were defined as "the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords". The privileges of the House of Commons included the freedom of speech, which had been claimed in 1554. This comprised the right of the House to provide for the due composition of its own body, the right to regulate its own proceedings, the right to exclude stranger, the right to prohibit publication of its debates and the right to enforce observation of its privileges by fine, imprisonment and expulsion. For deliberative bodies like the House of Lords and Commons, this Court said, "freedom of speech is of the utmost importance. A full and free debate is of the essence of Parliamentary democracy." The argument that the whole of article 194 was subject to Article 19(1)(a) overlooked the provisions of article 194(2). The right c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncement of the Constitution, they did not, in their wisdom, think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Article 19(1)(a). 6. The case of Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee, : 1961 CriLJ 743, dealt with an appellant who was a member of a Legislative Assembly. He had given notice of his intention to put certain questions in the Assembly. The questions being disallowed by the Speaker, he had published them in a journal in his constituency. The first respondent, whose conduct was the subject-matter of the questions, filed a complaint under the Indian Penal Code against the appellant and the printer and publisher of the journal. The appellant pleaded privilege and immunity under Article 194 of the Constitution as a bar to criminal prosecution. The claim of absolute privilege was disallowed by this Court. It was said, with reference to the law in England in respect of the privileges and immunities of the House of Commons, that there was no absolute privilege attaching to the publication of extracts from proceedings in the House. So far as a member of the House of Commons was concerned, he had an absolute privile....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to call for their explanation; whether the Full Bench of the High Court could have entertained the writ petitions of the two judges and the advocate and could have stayed the implementation of the resolution of the Assembly; and whether a judge who entertained or dealt with a petition challenging any order of a Legislature imposing penalty or issuing process against the petitioner for its contempt or for infringement of its privileges and immunities committed contempt of the Legislature and whether the Legislature was competent to take proceedings against the judge in the exercise of its powers, privileges and immunities. The adjectival clause "regulating the procedure of the Legislature" in Article 194(1) governed, it was held, both the preceding clauses relating to "the provisions of the Constitution" and "the rules and standing orders." Therefore, Article 194(1) conferred on legislators specifically the right of freedom of speech subject to the limitation prescribed by its first part. By making this sub-article subject only to the specified provisions of the Constitution, the Constitution makers wanted to make it clear that they thought it necessary to confer on the legislators ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....courts, it would still be upheld under the latter part of Clause (3) only on the ground that it was in fact claimed by the House of Commons." In India, this Court said, the dominant characteristic of the British Constitution could not be claimed. The supremacy of the Constitution was protected by an independent judicial body which was the interpreter of the scheme of distribution of powers. It was difficult for this Court to accept the argument that the result of the provisions contained in the latter part of Article 194(3) was intended to be to confer on the State Legislatures in India the status of a superior Court of Record. It was essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons was based on historical facts. It was a fact of English history that Parliament had been discharging judicial functions and the House of Lords still continued to be the highest court of law in the country. The Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional background did not support the claim that they could be regarded as Courts of Record in any sense. The very bas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed even within a house vests in ordinary criminal courts and not in a House of Parliament or in a State Legislature". 10. In Tolaram Relumal and Anr. v. The State of Bombay,: [1955] 1 SCR 158, this Court construed the words "in respect of occurring in Section 18(1) of the Bombay Rent Restriction Act, 1947, the relevant portion of which read thus: "If any landlord either himself or through any person acting or purporting to act on his behalf...receives any fine, premium or other like sum or deposit or any consideration, other than the standard rent...in respect of the grant, renewal or continuance of a lease of any premises...such landlord or person shall be punished...". The High Court had observed that the expression "in respect of was very comprehensive but this Court took the view that it had laid undue emphasis thereon. This Court said, "Giving the words "in respect of their widest meaning, viz, "relating to" or "with reference to", it is plain that this relationship must be predicated of the grant, renewal or continuance of a lease, and unless a lease conies into existence simultaneously or near about the time that the money is received, it cannot be said that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o mean "on the goods". 12. This Court drew a distinction in the above case between the use of the expression "in respect of in taxing statutes in India and its use elsewhere. In the context of its use in the Constitution and having regard to the object which is intended to be secured by Article 105(2), we think that the broad interpretation thereof is the most appropriate. It is thus that this Court has already interpreted the provision. 13. The Attorney General submitted that a proceeding in court founded on the allegation that a member of Parliament had received a bribe to vote in a particular way was not a proceeding in respect of a vote that he had given and that, therefore, the member did not enjoy immunity from the proceeding by reason of Article 105(2). He submitted that the immunity given by Article 105(2) did not cover criminal proceedings. It had been held by the courts of the United States of America, Canada, Australia and, recently, England, he said, that a legislator could be proceeded against for corruption. 14. The Attorney General relied upon the decisions and reports in this behalf to which we shall refer. The Attorney General submitted that the immunity g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ho decided Stockdale v. Hansard, 9 Ad. & E.I. Lord Denman had said, "Whatever is done within the walls of either assembly must pass without question in any other place." Littledale, J., had said, "It is said the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned." Patteson, J., had said, "Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere." And Coleridge, J., had said, "That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity." It seemed to follow that the House of Commons had the exclusive power of interpreting the Parliamentary Oaths Act, so far as the regulation of its own proceedings within its own walls was concerned: and that, even if that interpretation was erroneous, the court had no power to interfere with it "directly or indirectly". I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is in the light of the foregoing paragraphs that we note the fact that neither the statutory nor the common law applies to the bribery or attempted bribery of a Member of Parliament in respect of his Parliamentary activities". The Report speaks (in para 309) of "the historical circumstances in which the ordinary criminal law has not applied to bribery in respect of proceedings in Parliament". It finds (in para 310) that "the briber of a Member of Parliament would be immune from effective punitive sanctions of the kind that can be inflicted under the criminal law. Public obloquy is unlikely to be an effective sanction against such a person and accordingly we consider that there is a strong case for bringing such malpractices within the criminal law". It reiterates that "the bribery of a Member of Parliament acting in his Parliamentary capacity does not constitute an offence known to the criminal law...". The conclusion of the Report on the point is contained in para 311: "Membership of Parliament is a great honour and carries with it a special duty to maintain the highest standards of probity, and this duty has almost invariably been strictly observed. Nevertheless in vie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pported a wider principle, of which Article 9 was merely one manifestation, namely, that the courts and Parliament were both astute to recognise their respective constitutional roles. So far as the courts were concerned, they would not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. The basic concept that underlay Article 9, namely, the need to ensure so far as possible that a member of the legislature and witnesses before a committee of the House spoke freely "without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect." The privilege protected by Art....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence of a Common Law crime of bribing a Member of Parliament depends upon the meaning to be given to the word "office" in this context, as opposed to looking at the principle involved, would not be calculated to commend the Criminal Law to the public it should serve." Buckley, J. noted what had been said by James Martin, C.J. in R. v. White, 13 SCR (NSW), 332, which case concerned the attempted bribery of a Member of Parliament in New South Wales, "...a legislator who suffers his votes to be influenced by a bribe does that which is calculated to sap the utility of representative institutions at their foundations. It would be a reproach to the Common Law if the offer to, or the acceptance of, a bribe by such a person were not an offence". Faucett, J., agreeing with the Chief Justice, had said, "The principle is, that any person who holds a public office or public employment of trust, if he accepts a bribe to abuse his trust - in other words, if he corruptly abuses his trust - is guilty of an offence at Common Law; and the person who gives the bribe is guilty of an offence at Common Law". The same view had been taken in Canada in R v. Bunting, 1885 O R 524; that was a case of a consp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... See : The Church Of Scientology v. Johnson-Smith, 1972, 1 KB 522. However, it is not a necessary ingredient of the crime that the bribe worked." Referring to the case of Ex parte Wason, to which we shall make more detailed reference later, Buckley, J., observed that the substance of the proposed indictment there was that certain parties had conspired to make false statements in the House of Lords and Cockburn, C.J., had held "that the making of false statements in either House of Parliament could not be the subject of criminal or civil proceedings and nor could a conspiracy to do so". It seemed clear to the learned judge that the court had Article 9 of the Bill of Rights well in mind. "The only candidate", he said, "for the unlawful act or means was the very act which was not subject to the criminal law". He added that he could not see that the reasoning of Ex parte Wason, assuming the decision to be correct, would apply to alleged bribery for the proof of which no reference to goings on in Parliament would be necessary. This approach, he found, happened to be in line with several United States authorities on their "Speech or Debate Clause" which, for all practical purposes, was t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bate, 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." 22. Before we deal with the judgment of the United States Supreme Court in United States v. Daniel B. Brewster, 33 L. Ed. 2d 507, which lends support to the learned Attorney General's submissions, we should set out the speech or debate clause in the Constitution of the United States and refer to the United States Supreme Court judgment in United States v. Thomas F. Johnson, 15 L.Ed. 2d 681, to which the latter judgment makes copious reference. 23. Article 1, Section 6 of the United States Constitution contains the speech or debate clause. Referring to United States Senators and Representatives, it says : (F) or any Speech or Debate in either House, they shall not be questioned in any other Place". 24. Thomas F. Johnson was convicted by a United States District Court for violating a federal conflict of interest statute and for conspiring to defraud the United States. Evidence was admitted and argument was permitted at the trial that related to the authorship, content and motivation of a spe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d because the gravamen of the charge was the alleged conspiracy, not the speech, and because the defendant, not the prosecution, had introduced the speech. Whatever room the Constitution might allow for such factors in the context of a different kind of prosecution, they could not serve to save the Government's case under the conspiracy charge. It was undisputed that the Congressman had delivered the speech and that he had received the funds. The controversy centered upon questions of who first decided that a speech was desirable, who prepared it, and what the Congressman's motives were for making it. The indictment itself focused with particularity upon motives underlying the making of the speech and upon its contents. The prosecution under a general criminal statute dependent on such inquiries necessarily, contravened the speech or debate clause. The court added that its decision did not touch a prosecution which, though, as here, it was founded on a criminal statute of general application, did not draw in question the legislative acts of a Congressman or his motives for performing them. The court expressly left open for consideration the case of a prosecution, which thou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government. Referring to the case of Johnson (ibid). Burger, C.J., said that it unanimously held that a member of Congress could be prosecuted under a criminal statute provided that the Government's case did not rely on legislative acts or the motivation for legislative acts. A legislative act had consistently been defined as an act generally done in Congress in relation to the business before it. The speech or debate clause prohibited inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts. Counsel on behalf of the Senator had argued that the court in Johnson had expressed a broader test for the coverage of the speech or debate clause. He had urged that the court had held that the clause protected from executive or judicial inquiry all conduct" related to the due functioning of the legislative process." Burger, C.J., said that the quoted words did appear in the Johnson opinion, but they were taken out of context. In context, they reflected a quite differen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. Financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of members of Congress was unlikely to enhance legislative independence. The speech or debate clause was broad enough to insure the historic independence of the Legislative Branch, essential to the separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its members. Taking a bribe was no part of the legislative process or function; it was not a legislative act. It was not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator. It was not an act resulting from the nature, and in the execution, of the office. It was not a thing said or done in the exercise of the functions of that office. Nor was inquiry into a legislative act or the motivation for a legislati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 3 L. Ex. 176, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned...In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self- discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses." Neither the Senator's vote nor his motives for voting, however dishonourable, could be the subject of a civil or criminal proceeding outside the halls of the Senate. There was nothing complicated about this conclusion. It followed simply and inescapably from prior decisions of the United States Supreme Court setting forth the basic elements of legislative immunity. Yet, the majority judgment declined to apply those principles ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry". The learned judge said that he yielded nothing to the majority "in conviction that this reprehensible and outrageous conduct, if committed by the Senator, should not have gone unpunished. But whether a court or only the Senate might undertake the task is a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer that Congress assigned the task to the judiciary in enacting 18 USC 201. Our duty is to Nation and Constitution, not Congress. We are guilty of a grave disservice to both Nation and Constitution when we permit Congress to shirk its responsibility in favor of the courts. The Framers' judgment was that the American people could have a Congress of independence and integrity only if alleged misbehavior in the performance of legislative functions was accountable solely to a Member's own House and never to the executive or judiciary. The passing years have amply justified the wisdom of that judgment. It is the Court's duty to enforce the letter of the Speech or....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the alleged bribe takers; Ajit Singh excluded, actually cast against the no-confidence motion and that it may be established de hors those votes, as the Attorney General argued, we do not think that we can ignore the fact that the votes were cast and, if the facts alleged against the bribe takers are true, that they were cast pursuant to the alleged conspiracy and agreement. It must then follow, given that the expression "in respect of must receive a broad meaning, that the alleged conspiracy and agreement has a nexus to and were in respect of those votes and that the proposed inquiry in the criminal proceedings is in regard to the motivation thereof. 34. It is difficult to agree with the learned Attorney General that, though the words "in respect of must receive a broad meaning, the protection under Article 105(2) is limited to court proceedings that impugn the speech that is given or the vote that is cast or arise thereout or that the object of the protection would be fully satisfied thereby. The object of the protection is to enable members to speak their mind in Parliament and vote in the same way, freed of the fear of being made answerable on that account in a court of law....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent unlawful conduct of accepting or agreeing to accept a bribe was repulsed. Also repulsed was the argument that the speech or debate clause was not violated because the gravamen of the charge was the alleged conspiracy, not the speech. The indictment focused upon the motive underlying the making of the speech and a prosecution under a criminal statute dependent on such inquiry contravened the speech or debate clause. 38. Brennan, J., dissenting in Brewster, said that Brewster had been charged with a crime whose proof called into question the motives behind his legislative acts. He could not only be prosecuted or called to answer for his vote in any judicial or executive proceeding but his immunity went beyond the vote itself and precluded "all extra- congressional scrutiny as to how and why he cast, or would have cast; his vote a certain way". Neither the Senator's vote nor his motives for voting, however dishonourable, could be the subject of a civil or criminal proceeding outside the halls of the Senate. The charge of a corrupt promise to vote was repugnant to the speech or debate clause. It might be that only receipt of the bribe and not performance of the bargain was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....skine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, wherein a foot note (on p. 115) apropos the ruling reads thus: "The court observed: 'that a Member of Parliament against whom there is a prima facie case of corruption should be immune from prosecution in the courts of law is to my mind an unacceptable proposition at the present lime' (quoted in Committee of Privileges. First Report, HC351- ii (1994-95) pp 161-162). The court seems to have had in mind, though no attempt was made to define, an area of activity where a Member may act as such, without participating in 'proceedings in Parliament' (where of course article IX will apply)." 41. Our conclusion is that the alleged bribe takers, other man Ajit Singh, have the protection of Article 105(2) and are not answerable in a court of law for the alleged conspiracy and agreement. The charges against them must fail. Ajit Singh, not having cast a vote on the no-confidence motion, derives no immunity from Article 105(2). 42. What is the effect of this upon the alleged bribe givers? In the first place, the prosecution against Ajit Singh would proceed, he not having voted on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....conclusions in respect of the same charges. 45. Mr. Rao submitted that the alleged bribe givers had breached Parliament's privilege and been guilty of its contempt and it should be left to Parliament to deal with them. By the same sets of acts the alleged bribe takers and the alleged bribe givers committed offences under the criminal law and breaches of Parliament's privileges and its contempt. From prosecution for the former, the alleged bribe takers, Ajit Singh excluded, enjoy immunity. The alleged bribe givers do not. The criminal prosecution against the alleged bribe givers must, therefore, go ahead. For breach of Parliament's privileges and its contempt, Parliament may proceed against the alleged bribe takers and the alleged bribe givers. Article 105(3). 46. Relevant to the submission on Article 105(3) is the judgement in Ex Parte Wason, 1869 L.R.4 QBD 573. Rigby Wason moved the Court of Queen's Bench for a rule to call upon a metropolitan police magistrate to show cause why he should not take on record the complaint of Wason to prosecute Earl Russell, Lord Chelmsford and the Lord Chief Baron for conspiracy. Wason's affidavit in support of the comp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Chelmsford, and the Lord Chief Baron agreed to deceive the House of Lords by stating that the charge of falsehood brought against the Lord Chief Baron was unfounded and false, whereas they knew it to be true. Now, inasmuch as these statements were alleged to have been for the purpose of preventing the prayer of the petition, and the statements could not have had that effect unless made in the House of Lords, it seems to me that the fair and legitimate inference is that the alleged conspiracy was to make, and that the statements were made, in the House of Lords. I think, therefore, that the magistrate, looking at this and the rest of the information, was warranted in coming to the conclusion, that Mr. Wason charged and proposed to make the substance of the indictment, that these three persons did conspire to deceive the House of Lords by statements made in the House of Lords for the purpose of frustrating the petition. Such a charge could not be maintained in a court of law. It is clear that statements made by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proce....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... they had made false statements to, or voted in, Parliament in consequence of a conspiracy, they would be immune from prosecution by reason of Article 105(2) itself and no occasion would arise to look into the privileges enjoyed by the House of Commons under Article 105(3). 48. To repeat what we have said earlier, Mr. Rao is right, subject to two caveats, in saying that Parliament has the power not only to punish its members for an offence committed by them but also to punish others who had conspired with them to have the offence committed: first, the actions that constitute the offence must also constitute a breach of Parliament's privilege or its contempt; secondly, the action that Parliament will take and the punishment it will impose is for the breach of privilege or contempt. There is no reason to doubt that the Lok Sabha can take action for breach of privilege or contempt against the alleged bribe givers and against the alleged bribe takers, whether or not they were members of Parliament, but that is not to say that the courts cannot take cognizance of the offence of the alleged bribe givers under the criminal law. 49. Mr. Rao relied upon observations in the Eightee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty, which it could inflict....In cases of breach of privilege which are also offences at law, where the punishment which the House has power to inflict would not be adequate to the offence, or where for any other cause the House has thought a proceeding at law necessary, either as a substitute for, or in addition to, its own proceeding, the Attorney General has been directed to prosecute the offender". 50. May's Twenty-second Edition is more succinct, and this is what it says: "Moreover, though the Bill of Rights will adequately protect a Member as regards criminal law in respect of anything said as part of proceedings in Parliament, there is more doubt whether criminal acts committed in Parliament remain within the exclusive cognizance of the House in which they are committed. In the judgment of the House of Lords in Eliot's case (see pp 73 and 84n), it was deliberately left an open question whether the assault on the Speaker might have been properly heard and determined in the King's Bench. The possibility that it might legally have been so determined was admitted by one of the managers for the Commons in the conference with the Lords which preceded the wr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 105(3). Secondly, Article 105(2) provides for the sum total of the privileges and immunity that attach to what is said in Parliament and to votes given therein. Article 105(3) applies only "in other respects". To what we are here concerned with the provisions of Article 105(2) apply, to the extent indicated earlier. The provisions of Article 105(3) are, therefore, not attracted and they do not render assistance to the alleged bribe givers. Prevention of Corruption Act, 1988 52. In considering the case on the Prevention of Corruption Act, 1988 (the said Act) we shall not take account of what we have already held and write, as it were, upon a clean slate. Some reference to the provisions of the said Act is necessary at the threshold. 53. Section 2(b) of the said Act defines "public duty" thus: 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest." 54. Section 2(c) of the said Act defines public servant thus: "(c) "public servant" means (i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;....
X X X X Extracts X X X X
X X X X Extracts X X X X
....office-bearer or an employee of an educational, scientific, social, cultural, or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority. Explanation 1. - Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not. Explanation 2. - Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. "Section 19 of the said Act deals with the previous sanction that is necessary for prosecution for the offences mentioned therein. It read thus:" "19. Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except 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 from his office save by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y requirement of a similar nature. Section 7, mentioned in Section 19, defined the offence of a public servant taking gratification other than legal remuneration in respect of an official act and the penalty therefore. Section 10 sets out the punishment for abetment by a public servant of offences defined in Section 8 or 9. Section 11 defines the offence of a public servant obtaining a valuable thing, without consideration, from a person concerned in a proceeding or business transacted by such public servant, and the penalty therefore. Section 13 defines the offence of criminal misconduct by a public servant and the penalty therefore. Section 15 sets out the punishment for an attempt to commit an offence under Section 13(1)(c) or (d). 55. The offences with which the appellants are charged are those set out in Section 120(B) of the Indian Penal Code with Section 7, Section 12 Section 13(1)(d) and Section 13(2) of the said Act. (We do not here need to deal with the offence under Section 293 of the Indian Penal Code with which some of the accused are charged). These provisions read thus: "Section 120-B (of the Indian Penal Code). Punishment of criminal conspiracy. - ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. Section 12. Punishment for abetment of offences defined in Section 7 or 11 - Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. Section 13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, - (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratificati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "Statement of Object and Reasons - 1. The Bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions. 2. The Prevention of Corruption act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants. 3. The Bill, inter alia, envisages widening the scope of the definition of the expression "public servant", incorporation of offences under Sections 161 or 165-A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial court upholding the grant of sanction for prosecution would be final if it ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or convenience; Ninth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; Tenth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; Eleventh. - Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; Twelfth. - Every person - (a) in the serv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt or a member of a State legislature to perform his duty for he could not be compelled to speak or to vote. It was permissible to refer to the speech in Parliament of the Minister who had moved the Bill that became the said Act. He had stated, in response to a question about the position of a member of Parliament or a member of a Legislative Assembly, thus: "...We have not done anything different or contrary to the law as it stands today. Under the law, as it stands today, the Supreme Court has held in Antulay's case that a Member of a Legislative Assembly is not a public servant within the meaning of Section 21 of the Indian Penal Code." That this was really the position was supported by the fact that two conditions had to be satisfied for the purposes of bringing someone within the purview of the said Act, namely, that he should be a public servant (Section 2) and there should be an authority competent to remove him from his office (Section 19). In this behalf, reliance was placed upon the judgement in K. Veeraswamy v. Union of India,: (1992) IILLJ 53b SC. The judgment of the Delhi High Cour under appeal noted that it was not disputed that there was no authority competent to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eral submitted that the object behind enacting the said Act was to widen the coverage of the anti-corruption laws, as had been stated in its Statement of Object and Reasons. 'Public office' had been defined in Blacks Law Dictionary (Sixth edition, pg 1082) thus, "The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. An agency for the state, the duties of which involve in their performance the exercise of some portion of sovereign power, either great or small." The Shorter Oxford Dictionary (page 1083) defined "Office" thus, "A position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority." In Antulay's case it had been held that a member of a legislative assembly "performs public duties cast on him by the Constitution and his electorate". That a member of Parliament occupied an office had been the view taken in the cases of Bunting and Boston (referred to above). A member of Parliament performed....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... interpretation such as the speech of the Minister piloting the Bill that became the said Act. The true interpretation of a statute does not depend upon who urges it. The principle of promissory estoppel has no application in this behalf. Further., if the court comes to the conclusion, based on Section 2(c) itself, that Members of Parliament and the State legislators are, clearly, public servants, no resort to the provisions of Section 19 is required in this regard. The words "public servant" in Section 19 must then bear that meaning that is attributed to them on the construction of the definition thereof in Section 2(c). 62. A public servant is "any person who holds an office by virtue of which he is authorised or required to perform any public duty." Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest." In a democratic form of Government it is the Member of Parliament or a State legislature who represents the people of his constit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t was in this context that this Court made the observation that we have already quoted. Having regard to the fact that there was no clause in Section 21 of the Indian Penal Code which is comparable to Section 2(c)(viii) of the said Act, the decision in Antulay's case is of little assistance in this context. 64. The judgment of the Orissa High Court in the case of Habibulla Khan is of assistance because it considered whether a member of a Legislative Assembly was a public servant within the meaning of Section 2(c)(viii) of the said Act. Paragraphs 5,7,8 and 9 of the principle judgment are relevant. They read thus: "5. For the aforesaid clause to be attracted, two requirements must be satisfied; an M.L.A. must hold an office: and (ii) he must perform public duty by virtue of holding that office. The meaning of the word 'office' has been the subject-matter of various decisions of the apex Court and Shri Rath in his written note dated 27-4-1993 has dealt with these decisions in pages 6 to 12, in which reference has been made to what was held in this regard in (1) Maharaj Shri Govindlal Jee Ranchhodlal jee v. C.I.T., Ahmedabad,: AIR 1959 Bom 100 (which is a ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....than 60 members chosen by direct election from the territorial constituencies in the State for which purpose the State is divided into equal number of territorial constituencies. In Article 172, duration of the Legislative Assembly has been specified to be for five years, and Article 173 deals with the conditions of eligibility. Reference is then made to certain provisions of the Representation of the People Act, 1950, which has provided for total number of seats in the Legislative Assembly, and so far as Orissa is concerned, the Second Schedule mentions that the Orissa Legislative Assembly shall consist of 147 members. 8. Relying on the aforesaid provisions, it is contended rightly, by Shri Rath that the office of the M.L.A. is created by the Constitution read with the Representation of the People Act, 1950, whereas the actual election of M.L.As. is supervised, directed and controlled by the provisions contained in Articles 324 to 329 of the Constitution and the provisions of the Representation of the People Act, 1951, which brings home the distinction between "office" and "holder of the office". 9. The aforesaid submission appears to us to be unassailable. We would, therefo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat he is required and authorised thereby to carry out a public duty. In a word, a member of Parliament, or of a Legislative Assembly, is a public servant for the purposes of the said Act. 66. This brings us to the issue of sanction under the provisions of Section 19 of the said Act. The Section has been quoted. Sub-section (1) opens with the words "No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction..." Sanction is not required in respect of all offences covered by the said Act; it is required only in respect of the offences that are punishable under Sections 7, 10, 11, 13 and 15. Secondly, the person charged must be a public servant at the point of time the court is asked to take cognizance; that is the material time for the purposes of the Section. Thirdly, the sanction must proceed cognizance; it must be prior sanction. Fourthly, and this from the point of view of this judgement is most material, the Section covers all public servants. In other words, if any public servant is charged with an offence punishable under the aforesaid sections, the court s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... do not stand in the way of a court taking cognizance without a previous sanction." The appellant was a public servant who had been dismissed from service consequent upon a departmental inquiry. After his dismissal he was charged with the offence of criminal misconduct under the 1947 Act and convicted. The appellant contended that no court could have taken cognizance of the charge against him because there was no prior sanction under Section 6 of the 1947 Act. This Court found, as aforestated, that for the applicability of Section 6 two conditions had to be fulfilled, namely, (i) the offence should have been committed by a public servant and (ii) the public servant is removable from his office by the Central Government or a State Government or a competent authority. This Court held that sanction was not a prerequisite to the cognizance of the offence with which the appellant was charged and the conditions were not satisfied because, when cognizance of the offence was taken, the appellant had ceased to be a public servant. That the appellant was a public servant was not in dispute; that no sanction had been obtained was also not in dispute. This Court was not concerned with a sit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 19 of the Act, in the case of a member of a Legislative Assembly. Counsel, the High Court recorded, did not contend that even if there be no person competent to give sanction for prosecuting a member of a Legislative Assembly under the said act, nonetheless sanction for his prosecution had to be obtained because he was a public servant. The High Court was satisfied that although "an M.L.A. would come within the fold of the definition of 'public servant', as given in Section 2(c) of the Act, he is not the type of 'public servant' for whose prosecution under the Act, previous sanction as required by Section 19 is necessary. We require realise the anomaly of our conclusion, because though Section 19 of the Act makes no distinction between one public servant and another for the purpose of previous sanction, we have made so. But this is a result which we could not have truly and legally avoided." 71. We do not think that the view of the Orissa High Court stated above is correct. Since Section 6 of the 1947 Act and Section 19 of the said Act make no distinction between one public servant and another for the purpose of previous sanction, the conclusion must be tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to remove him. It was, therefore, "now necessary to identify such . authority...". 73. The learned Attorney General laid stress upon this observation. He submitted that the court should identify the authority competent to remove a Member of Parliament, or a State Legislature, from his office if it found such member to be a public servant within the meaning of Section 2(c) and did not accept his contention that the provisions of Section 19 did not apply, there being no authority competent to remove such member from his office. In other words, it was the alternative submission of the learned Attorney General that there was an authority competent to remove such member from his office : in the case of a member of Parliament it was the President and in the case of a member of a State Legislature it was the Governor of the State. We shall address ourselves to the submission in a moment. 74. The passage in Veeraswamy's case relied upon by learned counsel for the appellants is contained in the dissenting judgment of Verma, J. He said: "Clauses (a), (b) and (c) in Sub-section (1) of Section 6 exhaustively provide for the competent authority to grant sanction for prosecuti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ust be determined having regard to the definition of a public servant contained in the statute. If the person is found to be a public servant within the meaning of the definition, he must be taken to be a public servant for the purposes of all provisions in the statute in which the expression 'public servant' occurs. If therefore, a person is found to satisfy the requirements of the definition of a public servant, he must be treated as a public servant for the purposes of the sanction provision. In our opinion, it cannot be held, as a consequence of the conclusion that there is no authority competent to remove from office a person who falls within the definition of public servant, that he is not a public servant within the meaning of the statute. Where a person is found to satisfy the requirements of the definition of a public servant, the Court must, as was said by the majority in Veeraswami's case, attempt to identify the authority competent to remove him from his office. The majority identified that authority in the case of a Judge of a High Court and the Supreme Court and did not need to consider the effect upon the prosecution of not being able to find such authori....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he case of a person" and "in the case of any other person" must refer to a public servant having regard to the first paragraph of the sub-section. Clauses (a) and (b), therefore, would cover the case of a public servant who is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government and cl. (c) would cover the case of any other public servant whom a competent authority could remove from his office. The more important words in cl. (c) are "of the authority competent to remove him from his office". A public servant who has ceased to be, a public servant is not a person removable from any office by a competent authority. Section 2 of the Act states that a public servant, for the purpose of the Act, means a public servant as defined in Section 21 of the Indian Penal Code. Under cl. (c), therefore, any one who is a public servant at the time a court was asked to take cognizance, but does not come within the description of a public servant under cls. (a) and (b), is accused of an offence committed by him as a public servant as specified in Section 6 would be entitled....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y or genuine, he shall not accept such resignation. (4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant : Provided that in computing the said periods of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days. 102. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament - (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is, under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ament is occasioned by operation of law and is self operative. Reference to the President under Article 103 is required only if a question arises as to whether a member of Parliament has earned such disqualification; that is to say, if it is disputed. The President would then have to decide whether the Member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the Member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to the date upon which the disqualification was earned. Without, therefore, having to go into the connotation of the word "removal" in service law, it seems clear that the President cannot be said to be the authority competent to remove a member of Parliament from his office. 81. The Attorney General submitted that the scheme of the said Act, as compared to the 1947 Act, had undergone an important change by reason of the introduction of Sub- section (3) in Section 19. Sanction was no longer a condition precedent. A trial in the absence of sanction was not a trial withou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is required in respect of the charge under Section 12 of the said Act, the trial on all charges against them must proceed. 88. Ajit Singh (accused No. 15) was a public servant, being Member of Parliament, when cognizance of the charges against him was taken. He is charged with substantive offences under Section 120B of the Indian Penal Code and Section 7 and 13(2) of the said Act. The trial of the charge against him under Section 120B of the Indian Penal Code must proceed. 89. The appeals shall now be placed before a bench of three learned judges for hearing, on any other points that may be involved, and final disposal. G.N. Ray, J. 90. I had the privilege of reading both the judgments - one by my learned brother Mr. Justice S.C. Agrawal and the other by learned brother Mr. Justice S.P. Bharucha. Though I respectfully concur with the findings of Mr. Justice Agrawal and agree with the reasonings for such findings that (1) a member of Parliament is a public servant under Section 2(c) of the Prevention of Corruption Act, 1988 and (2) since there is no authority competent to grant sanction for the prosecution of a Member of Parliament under Section 19(1) of the Prevention o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been noticed in a number of decisions of this Court. The correct interpretation of the expression "in respect of can not be made under any rigid formula but must be appreciated with references to the context in which it has been used and the purpose to be achieved under the provision in question. The context in which the expression "in respect of has been used in sub article (2) of Article 105 and the purpose for which the freedom of speech and freedom to vote have been guaranteed in sub article (2) of Article 105 do not permit any restriction or curtailment of such right expressly given under sub article (1) and sub article (2) of Article 105 of the Constitution. It must, however be made clear that the protection under sub-article (2) of Article 105 of the Constitution must relate to the vote actually given and speech actually made in Parliament by a Member of Parliament. In my view, the protection against proceedings in court as envisaged under Sub-article (2) of Article 105 must necessarily be interpreted broadly and not in a restricted manner. Therefore, an action impugned in a court proceeding which has a nexus with the vote cast or speech made in Parliament must get the prot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entral Bureau of Investigation [for short 'CBI'] wherein it was alleged that in July 1993 a criminal conspiracy was hatched by A-1, Satish Sharma [hereinafter referred to as 'A-2], Ajit Singh [hereinafter referred to as 'A-13], Bhajan Lal [hereinafter referred to as 'A-14], V.C. Shukla, R.K. Dhawan and Lalit Suri to prove a majority of the Government on the floor of the House on July 28, 1993 by bribing Members of Parliament of different political parties, individuals and groups of an amount of over Rs. 3 crores and that in furtherance of the said criminal conspiracy a sum of Rs. 1.10 crores was handed over by the aforementioned persons, except A-15, to Suraj Mandal [hereinafter referred 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 Pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e third charge sheet dated January 22, 1997, which was described as 'Supplementary Charge Sheet No. 2', it was stated that further investigation has been carried on under Section 173(8) of Cr. P.C. and as a result identity of remaining accused persons has been established and that they are A-14, A-15, Ram Lakhan Singh Yadav [hereinafter referred to as 'A-16'], Ram Sharan Yadav [hereinafter referred to as 'A-'7'], Roshan Lal [hereinafter referred to as 'A-18'], Abhay Pratap Singh [hereinafter referred to as 'A-19'], Anadi Charan Das [hereinafter referred to as 'A-20'], Haji Gulam Mohd. Khan [hereinafter referred to as 'A-21] and late G.C. Munda [hereinafter referred to as 'A-22']. It was stated that even after securing the support of four JMM MPs in the manner stated in the first charge sheet dated October 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jurisdiction of the Court to try the case was barred under Article 105(2) of the Constitution because the trial is in respect of matters which relate to the privileges and immunities of the House of Parliament (Lok Sabha) and its Members inasmuch as the foundation of the charge sheets is the allegation of acceptance of bribe by some Members of Parliament for voting against the 'No Confidence Motion' and that the controversy to be decided in this case would be in respect of the motive and action of Members of Parliament pertaining to the vote given by them in relation to the 'No Confidence Motion'. The Special Judge rejected the said contention on the view that in the present case voting pattern of the accused persons was not under adjudication and they were sought to be tried for their illegal acts committed outside Parliament, i.e., demanding and accepting the bribe for exercising their franchise in a particular manner, and the 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 m....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Petitions filed by the appellants against the said order of the Special Judge have been dismissed by the impugned judgment of the Delhi High Court. In the High Court the following contentions were urged by the appellants :- (i) Even if the allegations of the prosecution were accepted, the Court would have no jurisdiction to fasten any criminal liability on the accused persons as whatever allegedly happened was in respect of votes given by some of them in the Lok Sabha and that, in any case, whatever transpired, touched the privileges of the House within the meaning of clauses (2) and (3) of Article 195 of the Constitution. (ii) Member of Lok Sabha hold no office an d as such are not public servants within the meaning of Section 2(c) of the 1988 Act and that for that reason the 1988 Act would not apply to the alleged acts of omission and commission of the accused persons. (iii)Even if it be taken that Members of Lok Sabha do fall within Section 2(c) of the 1988 Act and are thus taken 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 offic....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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. 98. Felling aggrieved by the said judgment of the High Court, the appellants have filed these appeals. The appeals were heard by a bench of three Judge. After hearing the arguments of the learned counsel, the following order was passed by that bench on November 18, 1997 :- "Among other questions, a substantial question of law as to the interpretation of Article 105 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." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nment 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Ram Lakhan Singh, Haji Ghulam Mohd, Khan and late G.C. Munda to defeat the no confidence motion moved on 26.7.93 against the then Congress (I) Government headed by you by illegal means viz., to offer or cause to offer and pay gratification other than the legal remuneration to your co-accused persons namely J.M.M. and Janta Dal (A) MPs named above as a motive or reward for their helping in defeating the said no confidence motion moved by the opposition parties and in pursuance of the said agreement you paid or caused 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted 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 prose....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bringing such malpractice within the criminal law. According to the Salmon Commission, the Committee of Privileges and the Select Committee on Members' Interests do not provide an investigative machinery comparable to that of a police investigation and that having regard to the complexity of most investigations into serious corruption special expertise is necessary for this type of inquiry. (para 310, pp. 98, 99). The Salmon Commission has recommended :- "Membership of Parliament is a great honour and carries with it a special duty to maintain the highest standards of probity, and this duty has almost invariably been strictly observed. Nevertheless in view of our report as a whole, and especially in the light of the points set out in the foregoing paragraph, we recommend that Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament acting in his parliamentary capacity within the ambit of the criminal law." [para 311 p. 99] During the course of the debate in the House of Lords, Lord Salmon said :- "To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings aga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tee of Privileges of the House of Commons that, in his opinion, though bribery of a Member was not a statutory offence, it might be an offence at the common law. [See : May's Parliamentary Practice, 22nd End, p. 114]. The Committee on Standards in Public Life, Chaired by Lord Nolan (Nolan Committee) in its first report submitted in May 1995, has said :- "There is one area of conduct where a need already exists to clarify, and perhaps alter, the boundary between the courts and Parliament. Bribery of a Member, or the acceptance of a bribe by a Member, 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 b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 cont....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isition 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] 104. 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 agreem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving or in the offering to give a bribe, or in the taking of it for or in respect of any of his duties as a member of that Assembly; and it is equally clear that the Legislative Assembly had not the jurisdiction which this Court has in a case of the kind; and it is also quite clear that the ancient definition of bribery is not the proper or legal definition of that offence." [p. 542] Armour J. was of the some view and has said :- "I think it beyond doubt that the bribery of a member of the Legislative Assembly of the Province of Ontario to do any act in his capacity as such is an offence at the common law, and is indictable and punishable as a 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. 106. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, namely, Johnson, United State v. Brewster, 33 L Ed 2d 507, and United States v. Helstoski, 61 L Ed 2d 12. 110. In Johnson a former US Congressman, named Johnson, and three co-defendants were found guilty of conspiracy consisting of an agreement among Johnson and another Congressman and two other co-defendants who were connected with a Maryland saving and loan institution whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of 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 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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] 112. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Sabha considered the matter relating to offer or payment of bribe in the Import Licences case wherein it was alleged that a Member of Lok Sabha had taken bribe and forged signatures of the Members for furthering the cause of certain applicants. The question of privilege was disallowed since it was considered that conduct of the Member, although improper, was not related to the business of the House. But at the same time it was held that as the allegation of bribery and forgery were very serious and unbecoming of a Member of Parliament, he could be held guilty of lowering the dignity of the House. [See: Kaul & Shakdher at pp. 254. 255]. 116. 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 :- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rence 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). 118. 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 perfect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ceedings so employed, and the language of the Constitution is framed in the broadest terms." [PP. 689, 690] 127. In order to show the broader thrust of the privilege reference was made by the learned Judge to the decision in Ex parte Wason and the observations of Cockburn CJ. and Lush J/. have been quoted. The contention that the Speech or Debate Clause was not violated because the gravamen of the count was the alleged conspiracy, not the speech, was rejected by pointing out that "the indictment itself focused with particularity upon motives underlying the making of the speech and upon its contents". [p 690]. The learned Judge has further said :- "We emphasise that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them." [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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Article 105 is narrower than that conferred under Article 9 of the Bill of Rights in the sense that the immunity conferred by that clause in personal in nature and is available to the member in respect of anything said or in any vote given by him in the House or any committee thereof. The said clause does not confer an immunity for challenge in the court on the speech or vote given by a Member of Parliament. The protection given under clause (2) of Article 105 is thus similar to protection envisaged under the construction placed by Hunt J. in R v., Murphy [supra] on Article 9 of the Bill of Rights which has not been accepted by the Privy Council in Prebble v. Television New Zealand Ltd. The decision in Ex parte Wason (supra), which was given in the context of Article 9 of the Bill of Rights, can, therefore, have no application in the matter of construction of clause (2) of Article 105. Ex parte Wason (supra), which holds that the 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 fou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 133. The learned Attorney General has, on the other hand, urged that immunity granted under clause (2) of Article 105 is intended to protect a member form liability arising out of the speech made by him or vote given by him and it cannot be extended to cover the conduct of a member who has received bribe or has entered into a conspiracy to commit the offence of bribery in order to make a speech or cast his vote in Parliament. The submission is that the expression 'in respect of' in clause (2) of Article 105 must be so construed as to ensure that the immunity conferred under clause (2) is only available in respect of legitimate acts o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thout fear of legal consequences. Borrowing the words Burger CJ. it can be said that this immunity has been '"to protect the integrity of the legislative process by ensuring the independence of the individual legislators". It cannot be given a construction which could lead to Article 105(2), a charter for freedom of speech in Parliament, being regarded, as per the phrase used by Lord Salmon, a "charter for corruption" so to elevate Members of Parliament as "super citizens, immune from criminal responsibility". (Burger CJ. in 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. 135. 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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of bribery in connection with anything said by him or a vote given by him in Parliament or any committee thereof and thereby place such Members above the law would not only be repugnant to healthy functioning of Parliamentary democracy but would also be subversive of the Rule of Law which is also an essential part of the basic structure of the Constitution. It is settled law that in interpreting the constitutional provisions the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. [See- 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ould be confined to liability that arises out of or is attributable to something that has been said or to a vote that has been given by a Member in Parliament or any committee thereof. The immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part of the cause of action for the proceedings giving rise to the liability. The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament even though it may have a connection with the speech made or the vote given by the Member if such an act gives rise to a liability which arise independently and does not depend on the making of the 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. 138. An indication about the liability with rega....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the receiver if takes or agrees to take money for promise to act in a certain way. The offence is complete with the acceptance of the money or on t he agreement to accept the 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. 141. 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 agreemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 offen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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." 144. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mitting the executive to initiate the prosecution of a member of Congress for the specific crime of bribery is subject to serious potential abuse that might endanger the independence of the legislature. Burger CJ. has, however, pointed out that there was no basis for such an apprehension inasmuch as no case was cited in which the bribery statutes which have been applicable to members of Congress for over 100 years have been abused by the Executive Branch. The learned Chief Justice has stated :- "We do not discount entirely the possibility that an abuse might occur, but this possibility, which we consider remote, must be balanced against the potential danger flowing from either the absence of a bribery statute violates the Constitution. As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses, by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised by a Court of Justice to perform any of such duties; Fifth.- Every 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, Ministerin- 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....court; (vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a ocurt of justice or by a competent public authority; (vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or rrevised an electoral roll or to conduct an election or part of an election; (viii)any person who holds an office by virtue of which he is authorised or requried to perform any public duty; (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 Boa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Dictionary, 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 purposes 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." 153. In Kanta Kathuria v. Manakchand Surana, 1970 (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the holder of the office. 156. Shri P.P. Rao has, however, pointed out that under the Constitution a distinction has been made between an 'office' and a 'seat' and that while the expression 'office' has been used in the Constitution in relation to various constitutional authorities such as President, [Articles 56, 57, 59 and 62] Vice-President, [Article 67] Speaker and Deputy Speaker of the Lok Sabha, [Article 93, 94, 95 and 96] Deputy Chairman of Rajya Sabha, [Article 90] Ministers, [Article 90] Judge of the Supreme Court [Article 124], Judge of the High Court [Article 217] and the Attorney General of India [Article 76] but insofar as a Member of Parliament and a Member of State Legislature is concerned the expression 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. 157. The learned Attorney Genera....
X X X X Extracts X X X X
X X X X Extracts X X X X
....scharge of which the State, the public or the community at large has an interest". 161. 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., having 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 true faith and allegiance to the Constitution of India as by law established, that I will uphold that sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter." The words "faithfully discharge the duty upon which I am about to enter' show that a Member of Parliament is required to discharge certain duties after he is sworn in as a Member of Parliament. Under the Constitution the Union Executive is responsible to Parliament and Members of Parliament act as watchdogs on the functioning of the Council of Ministers. In addition, a Member of Parliament plays an importance role in parliamentary proceedings, including enactment of legislation, which is a sovereign function. The duties discharged by him are s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers 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 have placed strong reliance on the 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 placed 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 done anything different or contrary to the law as it stands today. Under the law, as it stands today, the Supreme Court has held in Antulay's case that a Member of the Legislative Assembly is not a public servant within the meaning of Section 21 of the Indian Penal Code. I personally think that it is ver....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 165. 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 which 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. M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said" [pp. 613-615] 167. The decision in Pepper v. Hart makes an advance. In that case Lord Browne- Wilkinson, 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 by the courts in order to give effect to the true intentions of the legislature, the fine distinctions be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 provisions 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 ambiguous or obscure words and that such a statement of the minister must be clear and unambiguous. This rule of construction 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. 171. Moreover, the excerpts from the statement of the Minister on which reliance has been placed by the learned counsel fo the appellants cannot be regarded as clear and unambiguous on the question whether a Member of Parliament or the Member of the State Legi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l basis for this contention. We are concerned with the provisions of a law made by Parliament. There is no estoppel against the statute. 174. 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 explicitly 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 in the present case because the 1988 Act has replaced the 1947 Act. It has been enacted with the specific object of altering 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'. 175. Having considered the submissions Of the learned counsel on the meaning of the expression 'public servant' as contained in Section 2(c) of the 1988 Act, we are of the view that a Member of Parliament is a public servant for the pur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 that 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 the 1988 Act as well as the offence under Section 12 of the 1988 Act are not among the offences mentioned in Section 19(1) and that no sanction was required with regard to these offences and that sanction was required only in respect of offences under Section 7, and Section 13(2) read with Section 13(1)(d) of the 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 not have any effect on the trial of the said accused persons. 178. Section 19 of the 1988 Act provides as follows :- "19. Previous sanction necessary for prosecution- (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature." 179. The provisions as regards sanction were earlier contained in Section 6 of the 1947 Act. Sub-sections (1) and (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 1947 Act. Sub-sections (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. 180. In Veeraswami the question for consideration was whether a Judge of the High Court fails 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 vest....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 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] 181. The said decision in Veeraswami was given in the context of the definition of 'public servant' as contained in Section 21....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t company as defined in Section 617 of the Companies Act, 1956 (1 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 cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r on the ground of defection. The said decision of the Chairman of the Rajya 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 Rajya 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 is regarded as breach of privilege. On that basis it may be possible to say that 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 matter it must be held that there is no ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt in S.A. Venkataraman v. The State,: 1958 CriL J254 . 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(2) 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 pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 (3) 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 court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under Sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. This would show that the requirement of sanction under Sub- section (1) of Section 19 is a matter relating to the procedure and the absence of the sanction does not go to the root of the jurisdiction of the court. It must, therefore, be held that merely because there is no authority which is competent to remove a public servant and to grant sanction for his prosecution under Section 19(1) it canno....