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TMI Blog1998 (4) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... d to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Section 7, 10, 11, 13, and 15 of the 1988 Act against a Member of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be. X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 against the then Congress (I) Govt. 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 Under Section 120B IPC r/w Sections 7, 12 and 13(2) r/w 13(i)(d) of the PC Act 1988 and within my cognizance. Secondly you P.V. Narasimha Rao in pursuance of the aforesaid criminal conspiracy during the aforesaid period and at the aforesaid places abetted the commission of offence punishable Under Section 7 of P.C. Act by above referred JMM and Janta Dal (A) MPs and thereby you have committed an offence punishable Under Section 12 of the P.C. Act and within my cognizance. "Similar charges were framed against the other alleged bribe givers. The charge framed against Suraj Mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d i.e. JMM MPs named above the pecuniary advantage to the extent of Rs. 280 lacs and thereby committed an offence punishable Under Section 13(2) read with Section 13(i)(d) of P.C. Act and within my cognizance. Fourthly, that you during the pendency of investigation of present case while writ petition No. 789/96 was pending disposal in Hon'ble High Court between February to April, 1996 at Delhi, Ranchi and other places intentionally caused to bring false evidence into existence by fabricating or causing to fabricate the documents or records i.e. books . of accounts, proceeding books, etc. of JMM Central Office, Ranchi for the purpose of being used in any stage of judicial proceedings and thereby committed an offence Under Section 193 IPC and within my cognizance. Similar charges were framed against the other alleged bribe takers of the J.M.M. Similar charges were also framed against the alleged bribe takers of the J.D., A.S., except that there was no charge against them under Section 193 of the Indian Penal Code. Shailender Mahto of the J.M.M., it may be mentioned, later turned approver and was pardoned. 3. The persons sought to be charged as aforesaid filed petitions in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent enjoy freedom of speech subject only to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. That express provision is made for freedom of speech in Parliament in sub-article (1) of Article 105 suggests that this freedom is independent of the freedom of speech conferred by Article 19 and unrestricted by the exceptions contained therein. This is recognition of the fact that members need to be free of all constraints in the matter of what they say in Parliament if they are effectively to represent their constituencies in its deliberations. Sub-article of Article 105 puts negatively what sub-article (1) states affirmatively. Both sub- articles must be read together to determine their content. By reason of the first part of sub-article (2) no member is answerable in a court of law or any similar tribunal for what he has said in Parliament. This again is recognition of the fact that a member needs the freedom to say what he thinks is right in Parliament undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid of a machine, is treated as an extension of speech or a substitute for spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f completeness, though we are not here concerned with it, we must add that sub-article (4) gives the protection of the Sub-articles that preceded it to all who have the right to address the House, for example, the Attorney General. 5. The provisions of Article 105 and of Article 194, which is in the same terms but deals with the privileges of Legislative Assemblies, have been examined by this Court in the past. In the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Ors., a portion of the speech made by a member of a Legislative Assembly had been expunged by the orders of the Speaker. Nonetheless, the speech was published in its entirety in a newspaper of which the petitioner was the editor. He was called upon to show cause why action should not be taken against him for breach of privilege of the Legislative Assembly and he challenged the notice by a petition under Article 32. S.R. Das, C.J., speaking for the majority on the Constitution Bench which heard the writ petition, observed that Parliamentary privilege in England was defined in May's Parliamentary Practice as "the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 246 read with the relevant entries. Consequently, if such a law took away or abridged any of the fundamental rights, it would contravene the peremptory provisions of Article 13(2) and would be void to the extent of such contravention. It might well be that that was the reason why Parliament and the State Legislatures had not made laws defining their powers, privileges and immunities. It did not, however, follow that if the powers , privileges or immunities conferred by the latter part of Articles 105 and 194 were repugnant to the fundamental rights, they would be void to the extent of such repugnancy. It could not be overlooked that the provisions of Articles 105(3) and 194(3) were constitutional law and not ordinary law made by Parliament or the State Legislatures and that, therefore, they were as supreme as the provisions of part III of the Constitution. Further, quite conceivably, the Constitution makers, not knowing what powers, privileges and immunities Parliament or the State Legislatures might claim, thought fit not to take any risk and made such laws subject to the provisions of Article 13; but that, knowing and being satisfied with the reasonableness of the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contumacious. Keshav Singh moved a petition under Article 226 challenging his committal and he prayed for bail. Two learned judges of the Lucknow Bench of the High Court ordered that Keshav Singh be released on bail pending the decision on the writ petition. The Legislative Assembly passed a resolution requiring the production in custody before it of Keshav Singh, the advocate who had appeared for him and the two judges who had granted him bail. The judges and the advocate filed writ petitions before the High Court at Allahabad. A Full Bench of the High Court admitted their petitions and ordered the stay of the execution of the Assembly's resolution. The Legislative Assembly modified its earlier resolution so that the two judges were now asked to appear before the House and offer an explanation. The President thereupon made the Special Reference. Briefly put, the questions he asked were : whether the Lucknow Bench could have entertained Keshav Singh's writ petition and released him on bail; whether the judges who entertained the petition and granted bail and Keshav Singh and his advocate had committed contempt of the Assembly; whether the Assembly was competent to require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en conferred on him from any action in any court by this clause....It is plain that the Constitution makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by Clause (2). Thus, Clause (1) confers freedom of speech on the legislators within the legislative chambers and Clause (2) makes it plain that the freedom is literally absolute and unfettered." Referring to Article 194(3), this Court said that it was well-known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time and some faded out by desuetude. Accordingly, in every case where a power was claimed, it was necessary to enquire whether it was an existing power at the relevant time. It had also to appear that the power was not only claimed by the House of Commons "but was recognised by the English courts. It would obviously be idle to contend that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none." 9. The last of the cases to which reference need be made is State of Karnataka v. Union of India & Another,: [1978] 2 SCR 1. It was there held that the Constitution vested only legislative power in Parliament and in the State Legislatures. A House of Parliament or State Legislature could not try anyone or any case directly, as a Court of Justice could. It could proceed quasi-judicially in cases of contempts of its authority and take up motions concerning its privileges and immunities because, in doing so, it sought removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arose, it had to be decided by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General Sales Tax (Turnover and Assessment) Rules, 1939, which stated that, "the excise duty, if any, paid by the dealer to the Central Government in respect of the goods sold by him,..." would be deducted from the gross turnover of a dealer for the purposes of determining the net turnover, was under consideration. The Court noted that the words "in respect of had been considered by the House of Lords in Inland Revenue Commissioners v. Courts & Co., (1963) 2 All. E.R.722, and it had observed that "the phrase denoted some imprecise kind of nexus between the property and the estate duty". In Asher v. Seaford Court Estates Ltd., L.R. (1950) A.C. 508, the House of Lords had held that the expression "in respect of in the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, must be read as equivalent to "attribute". The Privy Council in Richer, Ltd. v. Commissioners of Income-tax, (1962) 3 All. E.R.. 294, had observed that these words could mean more than "consisting of or "namely". This Court said, "It may be accepted that the said expression received a wide interpretation, having regard to the object of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and inefficiency without it.'" He added, "The Houses of Parliament cannot act by themselves in a body : they must act by officers; and the Serjeant-at-arms is the legal and recognised officer of the House of Commons to execute its orders. I entertain no doubt that the House had a right to decide on the subject-matter, have decided it, and have ordered their officer to give effect to their decision. He is protected by their decision. They have ordered him to do what they have a right to order, and he has obeyed them....If injustice has been done, it is injustice for which the Courts of law afford no remedy." Stephen, J., concurring, said that the House of Commons was not subject to the control of Her Majesty's Courts in its administration of that part of the statute law which had relation to its own internal proceedings, and that the use of such actual force as was necessary to carry into effect such a resolution as the one before the court was justifiable. In support, the learned Judge quoted Blackston ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y published in a television programme. He pleaded fair comment and privilege. The plaintiffs countered by alleging malice, to prove which they sought to bring on record as evidence extracts from Hansard. The trial judge declined to permit them to do so. In his ruling he said, "I am quite satisfied that in these proceedings it is not open to either party to go directly, or indirectly, into any question of the motives or intentions, of the defendant or Mr. Hordern or the then Minister of Health or any other member of Parliament in anything they said or did in the House." 17. The report of the Royal Commission on Standards of Conduct in Public Life, chaired by Lord Salmon, was presented in July 1976. It says, "307. Only Parliament can decide what conduct constitutes a breach of privilege or a contempt of Parliament. In cases that are adjudged to be 'contempts', the House may exercise its penal jurisdiction to punish the offenders. The main penal sanctions available to the House are reprimand and committal to the custody of the Serjeant at Arms or to prisons. These sanctions apply both to Members and strangers. In addition, a Member may be suspended from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was alleged that the plaintiff, Prebble, then a Minister in the New Zealand Government, had conspired with certain businessman and public officials to give the businessmen an unfair opportunity to obtain certain state- owned assets which were being privatised on unduly favourable terms in return for donations to his political party, and he had thereafter arranged for incriminating documents and computer files to be destroyed. The plaintiff having brought an action for libel, the defendant company pleaded justification, alleging that the plaintiff and other ministers had made statements in the House of Representatives which had been misleading and that the conspiracy had been implemented by introducing and passing legislation in the House. The plaintiff applied to strike out these particulars on the ground that parliamentary privilege was infringed. The trial judge upheld the claim to immunity, as did the Court of Appeal. The Privileges Committee of the House of Representatives having held that the House had no power to waive the privileges protected by Article 9, the plaintiff appealed to the Privy Council. The Privy Council also upheld the claim to immunity. Lord Browne-Wilkins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail." 19. Very recently, in the case of R. v. Currie, it was alleged against Harry Greenway, a Member of Parliament, that he had accepted a bribe from Plasser, Jurasek and Brooks as a reward for using his influence as a Member of Parliament in respect of Jurasek's application for British nationality. The indictment of the four was sought to be quashed on the basis that the bribery of a Member of Parliament was not a crime and that, in any event, the court had no jurisdiction for only Parliament could try a member for bribery, the matter being covered by Parliamentary privilege. The trial judge, Buckley, J. did not agree. He quoted the Salmon Commission Report. He also noted that Lord Salmon, speaking in the debates of the House of Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing reason or principle is concerned with the corruption of those who undertake a duty, in the proper discharge of which the public is interested." The learned Judge then considered the question of parliamentary privilege and noted Article 9 of the Bill of Rights, 1688, which has already been quoted. The learned judge quoted Lord Salmon, speaking in the House of Lords, thus: "To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake". After quoting the Bill of Rights, Lord Salmon had continued : "Now this is a charter for freedom of speech in the House it is not a charter for corruption. To my mind, the Bill of Rights, for which no one has more respect that I have, has no more to do with the topic which we are discussing than the Merchandise Marks Act. The crime of corruption is complete when the bribe is offered or given or solicited or taken." Buckley, J., commented, "It is important to note that which Lord Salmon pointed out, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reatment of suspects and persons ultimately charged and brought to trial....Again, unless it is to be assumed that his peers would lean in his favour why should a Member be deprived of a jury and an experienced judge to consider his guilt or innocence and, if appropriate, sentence ? Why should the public be similarly deprived." The prosecution went ahead against the other accused but the charge was not established. The member of Parliament was., therefore, also acquitted. 20. The Law Commission in England very recently published a Consultation Paper (No. 145) entitled "Legislating the Criminal Code - Corruption". It refers to the Salmon Commission Report, the report of the Nolan Committee on the Standards of Conduct in Public Life and recent judgments (to one of which we shall advert). It states, "Whether Members of Parliament are subject to the criminal law of corruption, and more particularly whether they should be, are both contentious issues currently to the fore in public debate. As to the latter, on the one hand it has been said of Members of Parliament that 'Few are in a higher position of trust or have a duty to discharge in which the public have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy count had infected the entire prosecution, the Court of Appeals had ordered a new trial on the other counts. The Supreme Court, in further appeal, held that the prosecution on the conspiracy charge, being dependent upon an intensive inquiry with respect to the speech on the floor of the House, violated the speech or debate clause warranting the grant of a new trial on the conspiracy count, with all elements offensive to the speech or debate clause eliminated. The earlier cases, it said, indicated that the legislative privilege had to be read broadly to effectuate its purpose. Neither of those cases, however, had dealt with criminal prosecution based upon the allegation that a member of Congress had abused his position by conspiring to give a particular speech in return for remuneration from private interests. However reprehensible such conduct might be, the speech or debate clause extended at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of Government functions. The essence of such a charge in the context was that the Congressman's cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that he was immune from prosecution for any alleged act of bribery because of the speech or debate clause. The District Court upheld the claim of immunity. The Government preferred a direct appeal to the Supreme Court. Burger, C.J., spoke for 6 members of the court. Brennan, J. and White, J. delivered dissenting opinions, with which Douglas, J., joined. The charges were that the Senator, while such and a member of the Senate Committee on Post Office and Civil Service, "directly and indirectly, corruptly asked, solicited, sought, accepted, received and agreed to receive sums...in return for being influenced in his performance of official acts in respect to his action, vote and decision on postage rate legislation which might at any time be pending before him in his official capacity...." The other charge was in respect of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity. Burger, C.J. took the view that the immunities of the speech or debate clause were not written into the Constitution simply for the personal or private benefit of members of Congr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as protecting all conduct relating to the legislative process. In every case thus far before the court, the speech or debate clause had been limited to an act which was clearly a part of the legislative process, the due functioning of the process. The contention on behalf of the Senator for a broader interpretation of the privilege drew essentially on the flavor of the rhetoric and the sweep of the language used by the courts, not on the precise words used in any prior case, and not on the sense of those cases, fairly read. It was not sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, literal language and history, to include all things in any way related to the legislative process. Given such a sweeping reading, there would be few activities in which a legislator engaged that he would be unable somehow to "relate" to the legislative process. The speech or debate clause, admittedly, had to be read broadly to effectuate its purpose of protecting the independence of the Legislative Branch but its purpose was not "to make members of Congress super-citizens, immune from crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defaulted on his illegal bargain. The Government, to make a prima facie case under the indictment, need not show any act of the Senator subsequent to the corrupt promise for payment, for it was taking the bribe, not performance of the illicit compact, that was a criminal act. The learned Chief Justice said, "The only reasonable reading of the clause consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself. 26. Brennan, J., dissenting, said. "I would dispel at the outset any notion that Senator Brewster's asserted immunity strains the outer limits of the Clause. The Court writes at length in an effort to show that 'Speech or Debate' does not cover 'all conduct relating to the legislative process'...Even assuming the validity of that conclusion, I fail to see its relevance to the instant case. Senator Brewster is not charged with conduct merely "relating to the legislative process," but with a crime whose proof calls into question the very motives behind his legislative acts. The indictment, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady cast, the Government could not avoid proving the performance of the bargained-for acts and any inquiry in this behalf violated the speech or debate clause. The charges of only a corrupt promise to vote were equally repugnant to the speech or debate clause. The majority view might be correct that only receipt of the bribe, and not performance of the bargain, was needed to prove these counts. But proof of an agreement to be "influenced" in the performance of legislative acts was "by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother White cogently states,...Bribery is most often carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It would be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it might be, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es v. Johnson compels affirmance of the District Court. The decision is only six years old and bears the indelible imprint of the distinguished constitutional scholar who wrote the opinion for the Court. Johnson surely merited a longer life". 29. Justice White took substantially a similar view and part of what he said has already been quoted. 30. The judgment in Brewster was followed in United States v. Henry Helstoski, 61 L. Ed. 2d 12 Brennan, J., dissenting, expressed the view that the indictment in question should have been dismissed "since a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution". 31. Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament. 32. The charge against the alleged bribe takers is that they "were party to a criminal conspiracy and agreed to or entered into an agreement with" the alleged bribe givers "to defeat the no-confidence mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal proceedings that bear a nexus to their speech or vote. It is for that reason that a member is not "liable to any proceedings in any court in respect of anything said or any vote given by him". Article 105(2) does not say, which it would have if the learned Attorney General were right, that a member is not liable for what he has said or how he has voted. While imputing no such motive to the present prosecution, it is not difficult to envisage a member who has made a speech or cast a vote that is not to the liking of the powers that be being troubled by a prosecution alleging that he had been party to an agreement and conspiracy to achieve a certain result in Parliament and had been paid a bribe. 35. We are acutely conscious of the seriousness of the offence that the alleged bribe taker are said to have committed. If true, they bartered a most solemn trust committed to them by those they represented. By reason of the lucre that they received, they enabled a Government to survive. Even so, they are entitled to the protection that the Constitution plainly affords them. Our sense of indignation should not lead us to construe the Constitution narrowly, impairing the guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry into an alleged agreement of this land carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. The Senator's "reprehensible and outrageous conduct", if committed, should not have gone unpunished, but whether a court or only the Senate "might undertake the task was a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged". 39. We cannot but be impressed by the majority opinion in Brewster but, with respect, are more pursuaded by the dissent. The majority opinion stated that the only reasonable reading of the speech and debate clause was "that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself. Upon this construction of the speech or debate clause, it came to the conclusion that a court could investigate whether Brewster had taken a bribe to be influenced in the performance of official acts in respect of his action, vote, and decision on postage rate legislation. With respect, we cannot regard the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ao submitted that since, by reason of the provisions of Article 105(2), the alleged bribe takers had committed no offence, the alleged bribe givers had also committed no offence. Article 105(2) does not provide that what is otherwise an offence is not an offence when it is committed by a member of Parliament and has a connection with his speech or vote therein. What is provided thereby is that a Member of Parliament shall not be answerable in a court of law for something that has a nexus to his speech or vote in Parliament. If a member of Parliament has, by his speech or vote in Parliament, committed an offence, he enjoys, by reason of Article 105(2), immunity from prosecution therefore. Those who have conspired with the Member of Parliament in the commission of that offence have no such immunity. They can, therefore, be prosecuted for it. 44. Mr. Rao contended that for the offence that the bribe takers had allegedly committed they would be answerable to the Lok Sabha. There was a possibility of the Lok Sabha deciding one way upon the prosecution before it of the alleged bribe takers and the criminal court deciding the other way upon the prosecution of the alleged bribe givers. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberate falsehood to a committee of the House of Commons sitting as a judicial tribunal. The petition prayed for an inquiry into the charge and, if the charge was found true, for action against the Lord Chief Baron under the law to remove judges. Earl Russell, Lord Chelmsford and the Lord Chief Baron had, according to the Wason's affidavit, prevented the course of justice by making statements, after conferring together, which they knew were not true in order to prevent the prayer of his petition being granted; Wason alleged that Earl Russell, Lord Chelmsford and the Lord Chief Baron had conspired and agreed together to prevent the course of justice and injure himself. The alleged conspiracy consisted in the fact that Earl Russell, Lord Chelmsford and the Lord Chief Baron "did agree to deceive the House of Lords by stating that the charge of falsehood contained in my petition was false, and that I was a calumniator; when Earl Russell, Lord Chelmsford, and the Lord Chief Baron well knew that the charge of falsehood committed by the Lord Chief Baron, when Queen's Counsel, was perfectly true". Wason desired "to prefer an indictment against Earl Russell, Lord Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same opinion. He said, "When the House is sitting and statements are made in either House of Parliament, the member making them is not amenable to the criminal law. It is quite clear that no indictment will lie for making them, nor for a conspiracy or agreement to make them, even though the statements be false to the knowledge of the persons making them. I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence". Lush, J. agreed. He said that he could not doubt that the charge was of "a conspiracy to deceive the House of Lords, and so frustrate the application, by means of making false statements in the House. I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House". 47. As we read Ex Pane Wason, the Court of Queen's Bench found that Wason desired criminal proceedings to be commenced against three members of Parliament for conspiring to make, and making state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier edition is not find in the later edition. That May's treatise is an authoritative statement on its subject has been recognised by this Court (Keshav Singh's case, ibid). May's earlier edition stated, "It is sometimes said that, since the privileges of Parliament do not extend to criminal matters, therefore Members are amenable to the course of criminal justice for offences committed in speech or action in the House....It may prove to be true that things said or done in Parliament, or some of them, are not withdrawn from the course of criminal justice....There is more doubt as to whether criminal acts committed in Parliament remain within the exclusive cognizance of the House in which they are committed...". Quoting Mr. Justice Stephen in Bradlaugh v. Gosset, where the learned judge said that he "knew 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", May observed that "it must be supposed that what the learned judge had in mind was a criminal act as distinguished from criminal speech". May went on to state, "It is probably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House of Commons would be withdrawn from the ordinary course of criminal justice". Since he went on immediately to refer to Eliot's case and accepted the proposition "that nothing said in Parliament by a Member, as such, can be treated as an offence by the ordinary courts', it must be supposed that what the learned judge had in mind was a criminal act as distinguished from criminal speech. In such cases, it will be essential to determine where the alleged criminal act stands in relation to the proceedings of the House. An officer carrying out an order of the House is in the same position as the Members who voted the order. In Bradlaugh v Erskine, the Deputy Serjeant at Arms was held to be justified on committing the assault with which he was charged, since it was committed in Parliament, in pursuance of the order of the House, to exclude Bradlaugh from the House. As Lord Coleridge observed, 'The Houses cannot act by themselves as a body; they must act by officers'. It would be hard to show how a criminal act committed by a Member, however, could form part of the proceedings of the House, Apar from Eliot's case 350 years ago, no charge against a Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); (iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; (v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; (vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court or 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 revise 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 required to perform any public duty; (ix) any person who is the president, secretary or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade or banking, receiving or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the CrPC, 1973 (2 of 1974), - (a) 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 the 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; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. Section 7 (of the said Act). Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remunerations, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person whom he knows to have been, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned or (c) if the dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation with an enhanced punishment it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision. 5. The notes on clauses explain in detail the provisions of the Bill." 57. In the 1947 Act the definition of "public servant" in the Indian Penal Code was adopted, Section 21 whereof reads as follows: 21. "Public servant". - The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely: First. - [Repealed by the Adaptation of Laws order, 1950.] Second. - Every Commissioned Officer in the Military, Naval or Air Forces of India; Third - every Judge including any person empowered by law to discharge, whether by himself or as a member of anybody of persons, any adjudicatory functions; Fourth. - Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "6. Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code (45 of 1860), or under Sub-section (2) or Sub-section (3A) of Section 5 of this Act, 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 or with the sanction of the Central Government, of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliament did not hold an office was apparent from the Constitution. Whereas the Constitution spoke of other functionaries holding offices, members of Parliament were said to occupy seats. The conclusion, therefore, was inescapable that the accused could not be prosecuted under the said Act and the charges had to be quashed. Mr. D.D. Thakur echoed these submissions. He added that it was legally permissible, but morally impermissible, for a legislator to vote in exchange for money. The clauses of Section 2(c) had to be constructed ejusdem generis and, so read, could not cover members of Parliament or the State legislatures. Having regard to the fact that the Minister had made a representation to Parliament when the Bill was being moved that it did not cover members of Parliament and the State legislatures, it could not be argued on behalf of the Union Government, by reason of the principle of promissory estoppel, that the said Act covered members of Parliament and the State legislatures. The said Act only removed the surplusage in the then existing definition of "public servant" and had to be construed only in that light. The inclusion of members of Parliament in the said A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear from the Constitution that he performed public duties. The oath that he took referred to his obligation to "faithfully discharge the duty" upon which he was about to enter. The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament was entitled to receive a salary per mensem "during the whole of his term of office" and an allowance per day "during any period of residence on duty" . The accused, other than O.K. Adikeshavulu and M. Thimmagowda, were, therefore, public servants within the scope of the said Act and could be charged thereunder. Reference to the provisions of Section 19 of the said Act and to the Minister's speech on the Bill that became the said Act was, consequently, not called for. The provisions of Section 19 were attracted only when a public servant had an authority competent to remove him. Where, as in the case of a member of Parliament or a State legislature, there was no authority which was competent to remove a public servant, the provisions of Section 19 were not attracted and a prosecution could be launched and taken cognizance of without previous sanction. Alternatively, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest. The submission that this Court was in error in Antulay's case in holding that a member of a State legislature "performs public duties cast on him by the Constitution and his electorate" must be rejected outright. It may be - we express no final opinion - that the duty that a Member of Parliament or a State legislature performs cannot be enforced by the issuance of a writ of mandamus but that is not a sine qua non for a duty to be a public duty. We reject the submission, in the light of what we have just said, that a member of Parliament has only privileges, no duties. Members of Parliament and the State legislatures would do well to remember that if they have privileges it is better to perform their duty effectively and fearlessly representing their constituencies. 63. In Antulay's case the question relevant for our purpose was whether a member of a Legislative Assembly was a public servant within the meaning of that expression in clauses 12(a), (3) and (7) of Section 21 of the Indian Penal Code. These Clauses re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Bench stating "an office means no more than a position to which certain duties are attached"; (4) Kanta Kathuria v. Manikchand,: [1970] 2 SCR 835, in which Hidayatulla, C.J., on behalf of self and J.K. Mitter, J., who were in minority, after referring to the Constitution Bench decision in Statesman's case referred to the observations of Lord Wright in Mc Millan v. Guest, 1942 Ac 561, that the meaning of the word 'office' covered four columns of the New English Dictionary, but the one taken as most relevant was "(a) position or place to which certain, duties are attached, especially one of more or less public character"; whereas Sikri, J, speaking for the majority referred to the definition given by Lord Atkin, which was "a 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" by further stating that there was no essential difference between the definitions given by Lord Wright and Lord Atkin: and (5) Madhukar v. Jaswant,: [1976] 3 SCR 832, in which the definition given in the Stateman's case was quoted with approv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been dealt with by Shri Rath in paragraph 7 of his written note wherein mention has been made about various duties attached to the office of the M.L.A., as would appear from Chapter 111 of Part VI of the Constitution - the same being, making of laws, acting conjointly to effectively control the activities of the executive, approval of the finance bill, etc. Indeed, no doubt can be entertained in this regard in view of what was stated in paragraph 59 of Antulay's case, which is as below:- "...it would be rather difficult to accept an unduly wide submission that M.L.A. is not performing any public duty. However it is unquestionable that he is not performing any public duty either directed by the Government or for the Government. He no doubt performs public duty cast on him by the Constitution and his electorate. He thus discharges constitutional functions " Having held that a member of a Legislative Assembly was a public servant under the said Act, the Orissa High Court went on to consider which authority was competent to gives action for his prosecution. That is an aspect with which we are not immediately concerned and we shall revert to this judgment later. 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Union and is not removable from his office save by or with the sanction of the Central Government. Clause (b) says that the sanction must be of a State Government in the case of a public servant who is employed in connection with the affairs of that State and is not removable from his office save by or with the consent of that State Government. Clause (c) says that the sanction in the case of any other public servant must be of the authority competent to remove him from his office. Clause (c) is the basket into which all public servants, other than those covered by the terms of Clauses (a) and (b), fall. 67. Upon the plain language of Sub-section (1) of Section 19, analysed above, the argument of the learned Attorney General that the provisions of Section 19 are applicable only to a public servant who is removable from his office by an authority competent to do so must fail. 68. In support of the argument, the learned Attorney General relied upon the judgment of this Court in S.A. Venkataraman v. The State,: 1958 CriLJ 254 , in which, with reference to the provisions of Section 6 of the 1947 Act, it was observed : "When the provisions of Section 6 of the Act are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the provisions of Section 19 are applicable only to a public servant who is removable from his office by an authority competent to do so and, if there is no authority competent to remove a public servant from his office, the embargo arising under Section 19 is not attracted and Section 19 does not come in the way of a court taking cognizance. In any event, we cannot, with great respect, agree that the observations fully analyse the provisions of Section 19. We have set out above how we read it; as we read it, it applies to all who are public servants for the purposes of the said 69. It is correct to say that Section 19 contemplates that for every public servant there must be an authority competent to remove him from his office and that, therefore, the effort must be to identify that authority. But if no authority can be identified in the case of a public servant or a particular category of public servant, it cannot lead to the conclusion that was urged on behalf of the accused, namely, that he is not a public servant or this is not a category of public servant within the meaning of the said Act. We have found, based on the language of Section 2(c)(viii) read with Section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Veeraswami v. Union of India and others,: (1992) IILLJ 53b SC , considered the applicability of the 194 Act to a Judge of a High Court or the Supreme Court. A case under the provisions of Section 5(2) read with Section 5(1)(e) of the 1947 Act had been registered against the appellant, the Chief Justice of a High Court, and on 28th February, 1976, an F.I.R. was filed in the Court of Special Judge. The appellant retired on attaining the age of superannuation on 8th April, 1976. On 15th December, 1977, a charge sheet was filed and process was issued for appearance of the appellant. The appellant moved the High Court to quash the proceedings. The High Court dismissed the application but granted certificate of fitness to appeal. This Court, by a majority, concluded that a Judge of a High Court and the Supreme Court was a public servant within the meaning of Section 2 of the 1947 Act. A prosecution against him could be lodged after obtaining the sanction of the competent authority under Section 6 of the 1947 Act. For this purpose, the President of India was the authority to give previous sanction. No criminal case could be registered against a Judge of a High Court or the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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 held to be outside the purview of the Act since this special enactment was not enacted to cover that category of public servants inspite of the wide definition of 'public servant' in the Act. This is the only manner in which these provisions of the Act can be harmonized and given full effect. The scheme of the Act is that a public servant who commits the offence of criminal misconduct, as defined in the several clauses of Sub-section (1) of Section 5, can be punished in accordance with Sub-section (2) of Section 5, after investigation of the offence in the manner prescribed and with the previous sanction of the competent authority obtained under Section 6 of the act in a trial conducted according to the prescribed procedure. The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of India, so we should direct that no criminal prosecution should be launched against a member of Parliament without first consulting the Speaker. As the majority judgment makes clear, this direction was considered necessary to secure the independence of the judiciary and in the light of the "apprehension that the Executive being the largest litigant is likely to abuse the power to prosecute the Judges." Members of Parliament do not stand in a comparable position. They do not have to decide day after day disputes between the citizen and the Executive. They do not need the additional protection that the Judges require to perform their constitutional duty of decision making without fear or favour. 77. Before we move on to consider the alternative submission of the Attorney General, we must note the judgment in S.A. Venkataraman v. The State,: 1958 CriLJ 254 , upon which the learned Attorney General relied for his first proposition, namely, that the provisions of Section 19 do not apply to a public servant in respect of whom there is no authority competent to remove him from his office. The appellant Venkatraman was a public servant. After he was dismissed from service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have taken and indicates that the third clause in the sanction provision is a catch-all clause into which all public servants who are not covered by the first two clauses fall. In other words, to prosecute a public servant the prior sanction of the authority competent to remove him is a must. 78. For the purposes of appreciating argument that the President is the authority competent to remove a member of Parliament from his office, Articles 101, 102 and 103 under the head "Disqualifications of Members" in Chapter II of Part V of the Constitution need to be set out. (Similar provisions in relation to members of State Legislatures are contained in Articles 190, 191 and 192 under the same head in Chapter III of Part VI of the Constitution.) Articles 101, 102 and 103 read thus: "101. Vacation of Seats. - (1) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. (2) No person shall be a member both of Parliament and of a House of the Legislature of a State and if a person is chosen a member both of Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lified under the Tenth schedule. 103. Decision on questions as to disqualifications of members. - (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final. (2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. 79. By reason of Article 101(3)(a), the seat of a Member of Parliament becomes vacant if he becomes subject to the disqualifications mentioned in Article 102(1) and (2). Those disqualifications are the holding of an office of profit under the Union or State Government, other than an office declared by Parliament by law not to disqualify the holder; the declaration by a competent court of unsoundness of mind; undischarged insolvency; the citizenship of a foreign State or acknowledgement of allegiance or adherence thereto; and disqualification under any law made by Parliament or under the Tenth Schedule. Under the provisions of Article 103, it is only if a quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court should not interdict the charges, particularly since a complaint filed today would not require sanction against most of the accused. Having regard to the effect of our findings upon the accused, it is not necessary to consider this submission. 82. We have, as aforestated, reached the conclusion that members of Parliament and the State legislatures are public servants liable to be prosecuted for offences under the said Act but that they cannot be prosecuted for offences under Sections 7, 10, 11 and 13 thereof because of want of an authority competent to grant sanction thereto. We entertain the hope that Parliament will address itself to the task of removing this lacuna with due expedition. Conclusions. 83. We now set down the effect upon the accused of our findings. 84. We have held that the alleged bribe takers who voted upon the no-confidence motion, that is, Suraj Mandal Shibu Soren, Simon Marandi, Shailender Mehto, Ram Lakhan Sing Yadav, Ram Saran Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed (accused Nos. 3, 4, 5, 6, 16, 17, 18, 19, 20 and 21) are entitled to the immunity conferred by Article 105(2). 85. D.K. Adikeshavulu and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker of the Lok Sabha, as the case may be. I have not been able to persuade myself to concur with the reasonings and the finding in the judgment of Mr. Justice Agrawal that a Member of Parliament does not enjoy immunity under Article 105(2) or 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or giving his vote in Parliament or in any committee thereof. 91. Article 105 of the Constitution deals with powers, privileges etc. of the Houses of Parliament and the members and committees thereof. Sub article (1) of Article 105 makes it evident that subject to the provisions of the Constitution and rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. The provisions of Sub-article (1) Article 105 indicates in no uncertain term that the freedom of speech guaranteed under Sub Article (1) of Article 105 is independent of the freedom of speech guaranteed under Article 19 of the Constitution and such freedom of speech under Article 105(1) is not inhibited or circumscribed by the restrictions under Article 19 of the Constitution. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of Parliament will enjoy such powers, privileges and immunities which had been recognised to be existing for a member of House of Commons at the commencement of the Constitution of India. As I respectfully agree with the reasonings indicated in the judgment of the learned brother Mr. Justice S.P. Bharucha that in the facts of the case, protection under Article 105(3) of the Constitution is not attracted but protection under Sub article (2) of Article 105 is available only to those accused, who as Members of Parliament had cast their votes in Parliament, I refrain from indicating separate reasonings in support of such finding. S. C. Agrawal, J. 93. Whether by virtue of Article 105 of the Constitution a Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal court, and whether a Member of Parliament is a "public servant" falling within the purview of the Prevention of Corruption Act, 1986 [hereinafter referred to as 'the 1988 Act']. These are the two questions which have come up for consideration before this bench in these matters. 94. In the General Election for the Tenth Lok Sabha held in 1991 the Congress (I) part, emerged as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 9, 1996 and January 22, 1977 in the court of Special Judge, New Delhi. In the first charge sheet dated October 30, 1996 it was stated that investigation had revealed that A-1, A-2, A-3, A-4, A-5, A- 6, Buta Singh [hereinafter referred to as 'A-7'], and other unknown persons entered into a criminal conspiracy to defeat the 'No Confidence Motion' by resorting to giving and accepting of gratification as a motive or reward and in pursuance thereof four Members of Parliament belonging to JMM) A-3, A-4, A-5 and A-6) accepted illegal gratification to vote against the Motion and because of their votes and some other votes the Government led by A-1 survived. It was also stated in the charge sheet that investigation has also revealed that the four Members of Parliament belonging to JMM had been bribed in crores of rupees for voting against the 'No Confidence Motion'. The said charge sheet was filed against A-1, A-2, A-3, A-4, A-5, A-6 and A-7 and other unknown persons in respect of offences under Section 120-B IPC and Sections 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder. The second charge sheet dated December 9, 1996 was in the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and thereby committed the offences punishable under Section 120-B IPC and Section 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder. 95. An application was submitted by A-6 (Shailendra Mahto) under Section 306 Cr. P.C. for grant of pardon for being treated as an approver. The said application was referred to the Magistrate for recording his statement under Section 164 Cr. P.C. and after considering the said statement the Special Judge, by order dated April 5, 1997, allowed the application of A-6 and tendered pardon to him on the condition of his making a full and true disclosure of all the circumstances within his knowledge relating to the offences of every other person concerned, whether as a principal or abettor in the commission of the offences under the charge sheets. After hearing the arguments on charges, the Special Judge passed the order dated May 6, 1997 wherein he held that there is sufficient evidence on record to justify framing of charges against all the appellants. In so far as A-1, A-2, A-7 and A-8' to A-14 are concerned, the Special Judge held that there is sufficient evidence on record to justify framing of charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion does not amount to any offence punishable under the provisions of the 1988 Act and there cannot be any offence of conspiracy of giving and taking of bribe by a Member of Parliament. The said contention was rejected by the Special Judge on the view that the question whether a Member of Parliament is a public servant is concluded by the decision of the Delhi High Court in the cases of L.K. Advani v. Central Bureau of Investigation wherein it has been held that Member of Parliament is a public servant under the 1988 Act. It was also urged before the Special Judge that the case could not be proceeded against the accused persons since previous sanction for prosecution under Section 19 of the 1988 Act had not been obtained. The said contention was also rejected by the Special Judge on the ground that no previous sanction of prosecution for an accuse under Section 19 is necessary if he has ceased to hold a public office which was allegedly misuse by him and in the present case at the time of filing of the charge sheets and on the sate of taking of cognizance by the Court Tenth Lok Sabha had come to an end and after the Election in 1996 at the accused persons who were the members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on clauses (2) and (3) of Article 105 of the Constitution the High Court has held that to offer bribe to a Member of Parliament to influence him in his conduct as a member has been treated as a b reach of privilege in England but merely treating the commission of a criminal offence as a breach of privilege does not amount to ouster jurisdiction of the ordinary court to try penal offences and that to claim that in such matters the courts would have no jurisdiction would amount to claiming a privilege to commit a crime. The High Court has also pointed out that four notices of a question of privilege dated February 26 and 27, 1997 were given by four members of Lok Sabha, namely, Sarva Shri Jaswant Singh, Indrajit Gupta, Arjun Singh and Jagmeet Singh Brar against A-1 and the four members belonging to JMM (A-3 to A-6). The notices were forwarded to the said accused for comments and after discussion on the said notices during which members of all parties expressed their views the Speaker disallowed the notice given by Shri Arjun Singh on March 11, 1996 and the notices of a question of privilege given by Sarva Shri Jaswant Singh, Indrajit Gupta and Jagmeet Singh Brar were disallowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in these petitions. These petitions are, therefore, required to be heard and disposed of by a Constitution Bench. The learned counsel for the parties agree that the Constitution Bench may only deal with the questions relating to interpretation of Article 105 of the Constitution and the applicability of the Prevention of Corruption Act to a Member of Parliament and Member of State Legislative Assembly and the other questions can be considered by the Division Bench." During the pendency of the appeals in this Court the Special Judge has framed the charges against the accused persons [appellants herein] on September 25, 1997. All the appellants have been charged with the offence of criminal conspiracy punishable under Sections 120-B IPC read with Section 7, 12 and 13(2) read with 13(1)(d) of the 1988 Act. A-3 to A-5, belonging to JMM and A-15 to A-21, belonging to JD(A), have been further charged with offences under Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988 Act. A-3 to A-5 have also been charged with the off once under Section 193 IPC. The other appellants, viz., A-1, A-2 and A-7 to A-14 have been charged with offence under Section 12 of the 1988 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reward for this service, the public servant has committed an offence under this Section." "12. Punishment for abetment of offences defined in Section 7 or 11.- Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine." "13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct.- (a) X X X X (b) X X X X (c) X X X X (d) If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable or pecuniary advantage without any public interest; or (e) X X X X (2) Any public servant who commits criminal misconduct shall be punishable imprisonment for a term which shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a to defeat the no confidence motion moved against the then Congress (I) Government headed by accused Shri P.V. Narsimha Rao on 26.7.93 by illegal means viz. to obtain or agree to obtain gratification other than legal remunerations from your above named accused persons other than JMM and Janta Dal (A) MPs as a motive or reward for defeating the no confidence motion and in pursuance thereof above named accused persons other than JMM and Janta Dal (A) passed on several lacs of rupees to you or your other co-accused namely JMM and Janta Dal (A) MPs which amounts were accepted by you or your said co-accused persons and they by you have committed an offence punishable u/s 120B r/w Sections 7, 12 13(2) r/w Section 13(1)(d) of the P.C Act and within my cognizance." The charges under Section 13(2) read with Section 13(1)(d) of the 1988 Act agains A-3 to A-5 and A-15 to A-21 are in these terms :- "Secondly, that you being a public servant while functioning in your capacity of Member of Parliament (10th Lok Sabha) during the aforesaid period and at the aforesaid places in pursuance of the aforesaid conspiracy demanded and accepted from your co-accused other than JMM & JD(A) MPs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Kingdom a other countries following the common law. UNITED KINGDOM 100. During the rule of the Tudor and Stuart Kings the Commons had to wage a bitter struggle to assert their supremacy which culminated in the Bill of Rights, 1989 whereby it was secured "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament" (Article 9). On May 2. 1695 the House of Commons passed a resolution whereby it resolved that "the offer of money, or other advantage, to any Member of Parliament for the promoting of any matter whatsoever, depending or to be transacted in Parliament is a high crime and misdemeanor and tends to the subversion of the English constitution". In the spirit of this resolution, the offering to a Member of either House of a bribe to influence him in his conduct as a Member or of any fee or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to the House or any committee thereof, has been treated as a breach of privilege. [See : May's Parliamentary Practice, 21" Edn. p. 128]. In its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more respect than I have, has no more to do with the topic which we are discussing that the Merchandise Marks Act. The crime of corruption is complete when the bribe is offered or given or solicited or taken." 101. The correctness of the statement in the Report of the Salmon Commission that 'common law does not apply to bribery or attempted bribery of a Member of Parliament in respect of his parliamentary activities, has been doubted by Prof. Graham Zellick who has said that Sir James Fitzjames Stephen appears to be the only writer to have taken the same view in his Digest of the Criminal Law (1878) art. 118, and that there is nothing in the English authorities which compels to the conclusion that a Member of Parliament is not a public officer and is not punishable at common law for bribery and breach of trust. [See : Grahma Zellick : Bribery of Members of Parliament and the Criminal Law, 1979 Public Law p. 31 at pp. 39, 40]. 102. The question whether offering of a bribe to and acceptance of the same by a Member of Parliament constitutes an offence at common law came up for consideration before a criminal court (Buckley J.) in 1992 in R.V. Currie & Ors. In that case it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n also recommended, which the government accepted, but which has not been done. This might be a task which the Law Commission could take forward." [para 104] It appears that the matter is being considered by the Law Commission. In the Law Commission, Consultation Paper No. 145, reference has been made to a document entitled 'Clarification of the law relating to the Bribery of Members of Parliament', published by the Home Office in December 1996, whereby the Select Committee on Standards and Privileges has been invited to consider the following four broad options:- (1) to rely solely on Parliamentary privileges to deal with accusations of the bribery by Members of Parliament; (2) subject Members of Parliament to the present corruption statutes in full; (3) distinguish between conduct which should be dealt with by the criminal law and that which should be left to Parliament itself, and (4) make criminal proceedings subject to the approval of the relevant House of Parliament. AUSTRALIA : Even though Article 9 of the Bill of Rights is applicable in Australia but as far back as in 1975 the Supreme Court of New South Wales held that an attempt to bribe a Member of the Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tending to the public mischief, and an agreement or combination to do such acts amounts to a criminal offence. From the point of view of tendency to public mischief I can see no substantial difference between paying money to a member to induce him to use his vote in Parliament in a particular direction and paying him money to induce him to use his position as a member outside Parliament for the purpose of influencing or putting pressure Ministers. A member of Parliament cannot divest his position of the right which it confers to take part in the proceedings of Parliament he cannot 'use his position as a member of Parliament' stripped of its principal attribute. The influence which his position as a member of Parliament enables him to exert on a Minister has its source in his right to sit and vote in Parliament, and it would be idle to pretend that in discussions and negotiations between a Minister and a member that right, or the power it confers on a member, can be disregarded or ignored. The tenure of office of the Minister and his colleagues may be dependent on the vote or on the abstention from voting of an individual member, or even on his words or his silence in Parliament.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy." [pp. 413, 414] Section 73A of the Crime Act, 1914 in Australia makes it an offence for members of the Australian Parliament to accept or be offered a bribe. Under the said provision a member of either House of Parliament who asks for or receives or obtains, or offers or agrees to ask for or receive or obtain, any property or benefit of any kind for himself or any other person, on an understanding that the exercise by him of his duty or authority as such a member will, in any manner, be influenced of affected, is guilty of an offence. So also a person who, in order to influence or affect a member of either House of Parliament in the exercise of his duty or authority as such a member or to induce him to absent himself from the House of which he is a member, any committee of the house or from any committee of both House of the Parliament, gives or confers, or promises or offers to give or confer, any property or benefit of any kind to or on the member or any other person is guilty of an offence. [See : Gerard Carney - Conflict of Interest : A Commonwealth Study of Members of Parliament.p. 124]. 105. CANADA : In the case of R.V Bunting, (1984-5) 7 Ontario Reports 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of privilege." [See : Gerard Carney : Conflict of Interest : A Commonwealth Study of Members of Parliament, p 123]. 108. UNITED STATES ; Article 1(6) of the US Constitution contains the 'Speech or Debate Clause' which provides that "for any speech or debate in either House, they (Members of the Congress) shall not be questioned in any other place". In 1853 the Congress, by statute, declared a member liable to indictment as for a high crime and misdemeanour in any court of the United States for accepting compensation intended to influence a vote or decision on any question brought before him in his official capacity. In 1862 the Congress enacted another statute to penalise legislators who received money for votes or influence in any matter pending before Congress and in 1864 Conflict of Interest statutes barred Congressmen from receiving compensation for their services before any agency. The Conflict of Interest Statutes were revised in 1962 and are contained in 18 U.S.C.(1964). [See : Note, The Bribed Congressmen's Immunity from Prosecution, (1965-66) 75 Yale L.J. 335, at p. 341]. 109. A distinction is, however, made between the conduct of a Member connected wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 111. In Brewster a former US Senator, named Brewster, had been charged with accepting bribes and the allegation was that while he was a Senator an d a member of the Senate Committee on Post and Civil Service he received and agreed to receive sums in return for being influenced in his performance of official acts in respect of his action, vote and decision on postage rate legislation which had been pending before him in his official capacity. Brewster moved to dismiss the indictment on the ground that he was immune from prosecution for any alleged act of bribery because of the Speech or Debate Clause. The District Court accepted the said contention and dismissed the counts of the indictment which applied to Brewster. The said judgment of the District Court was reversed by the US Supreme Court and the matter was remanded. Burger CJ., who delivered the opinion of the Court on behalf of six Judges, held that the Speech or Debate Clause protects the members of Congress from inquiry into legislative acts or into the motivation for their actual performance of legislative acts and it does not protect them from other activities they undertake that are political, rather than legislative, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct as a member and acceptance of a bribe by such a Member is treated as a breach of privilege by Indian Parliament even though no money has actually changed hands. [See : M.N. Kaul & S.L. Shakdher : Practice and Procedure of Parliament 4th Edn., at p. 254]. As early as in 1951 an ad hoc Committee of Parliament was appointed to investigate the conduct and activities of a member , H.G. Mudgal, in connection with some of his dealings with a business association which included canvassing support and making propaganda in Parliament on certain problems on behalf of that association in return for alleged financial and other business advantages. A ad hoc Committee of the House was appointed to consider whether the conduct of the member concerned was derogatory to the dignity of the House and inconsistent with the standards which Parliament is entitled to expect from members. The Committee found the member guilty of receiving monetary benefits for putting questions in Parliament, moving amendments to the Forward Contracts (Regulation) Bill and urging interviews with the Ministers, etc. and it held that the conduct of H.G. Mudgal was derogatory tot he dignity of the House and inconsistent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him in parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. (4) The provisions of clauses (1), (2), and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of the Parliament." By Constitution (Forty-fourth Amendment) Act, 1978 clause (3) was replaced but he following clause :- "(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof in other respects. The said clause is in two parts. The first part empowers Parliament to define, by law, the powers, privileges and immunities of each House of Parliament and of the members and the committees of each House. In the second part, which was intended to be trasitional in nature, it was provided that until they are so defined by law the said powers, privileges and immunities shall be those of the House of Commons in the United Kingdom and of its members and committees at the commencement of the Constitution. This part of the provision was on the same lines as the provisions contained in Section 49 of the Australian Constitution an d Section 18 of the Canadian Constitution. Clause (3), as substituted by the Forty-fourth Amendment of the Constitution, does not make any change in the content and it only seeks to omit future reference tot he house of Commons of Parliament in the United Kingdom while preserving the position as it stood on the date of coming into force of the said amendment. 120. Clause (4) of Article 105 makes the privileges and immunities secured under Clauses (1) and (3) applicable to persons who by virtue of the Constitution have the right to speak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity cannot be extended to confer immunity from prosecution of a Member for having received bribe or having entered into a conspiracy to receive bribe for the purpose of making a speech or giving a vote in the House or in any committees thereof. The learned Attorney General has placed reliance on the judgment of the U.S. Supreme Court (Burger CJ.) in Brewster, the Canadian decision in Bunting and the Australian decisions in White and Boston and the ruling of Buckley J. in R.V. Currie & Ors. 123. Before we proceed to consider these submissions in the light of the provisions contained in clause (2) of Article 105, we may refer to the decision in Ex parte Wason and the other decision in which it has been considered. 124. In Ex parte Wason information had been laid by Wason before the Magistrate wherein it was stated that the had given Eari Russell a petition to be presented in the House of Lords wherein the Lord Chief Baron was charged with wilful and deliberate falsehood and the object of the petition was that the Lord Chief Baron might be removed from his office by an address of both House of Parliament and that Eari Russell, Lord Chelmsford and the Lord Chief Baron conspired tog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence." [p. 576] Lush J. also said :- "I cannot doubt that it charges a conspiracy to deceive the House of Lords, and so frustrate the application, by means of making false statements in the house. I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House." [p. 577] The observations if Cockburn CJ., with whom Blackburn J. has concurred, show that the substance of the information laid by Wason was that the alleged conspiracy was to make false statements and that such statements were made in the House of Lords and that the said statements had been made the foundation of the criminal proceeding. Though in the judgment there is no reference to Article 9 of the Bill of Rights but the tenor of the abovequoted observations of the learned Judges leave no doubt that the judgment was based on that Article. It has been so understood in later judgments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement to perform legislative acts, even if provable without reference to the acts themselves may not be the subject of a general conspiracy prosecution". [p. 533]. Burger CJ. did not agree with this reading of Johnson and said:- "Johnson thus stands on a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." [pp. 517, 518] After pointing out that the privileges in England is by no means free form grave abuses by legislators, Burger CJ. has observed :- "The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from the sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future dates is not 'speech or debate'. Likewise a promise to introduce a bill is not a legislative act." [p. 24]. In Bunting Wilson CJ., has considered, Ex parte Wason and has pointed out that in that case the alleged conspiracy could not fall under the head of an agreement to do an illegal act because the truth of falsity of statements made by members in Parliament could not b e enquired into by the court and that it did not also fall under the head of doing an act, nor necessarily illegal, by illegal means because there were no illegal means used or to be used. The learned Chief Justice has, however, observed :- "But if these three persons had agreed that the two members of the House of Lords should make these false statements, or vote in any particular manner, in consideration of a bribe paid or to be paid to them, that would have been a conspiracy to do an act, not necessarily illegal perhaps, but to do the act by illegal means, bribery being an offence against the law; and the offence of conspiracy would have been complete by reason of the illegal mans by which the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement. Hunt J. in the Supreme Court of New South Wales, held that Article 9 of the Bill of Rights did not prohibit such cross-examination even if the suggestion was made that the evidence given to the Select Committee was a lie. He further held that the statements of the Select Committee could b e used to draw inferences and could be analysed and be made the basis of submission. 130. In Prebble v. Television New Zealand Ltd., 12994 All ER 407. Lord Browne Wilkinson, speaking for the Judicial Committee of the Privy Council, after taking note of the decision of Hunt J. in R. v. Murphy (supra), has said :- "Finally, Hunt J. based himself on a narrow construction of art 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 as being, inter alia, the assertion by the King's courts of a rights to hold a member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny proceeding in a court of law. Therefore, on the basis on t he decision in Ex parte Wason (supra), it cannot be said that no offence was committed by those who are alleged to have offered the illegal gratification and by those who had received such gratification to vote against the No Confidence Motion and for that reason the charge of conspiracy and abetment must also fall. On the basis of Article 105(2) the claim for immunity from prosecution can be made only on behalf of A-3 to A-5 and A-16 to A-21 who are alleged to have voted against the No Confidence Motion. As to whether they are entitled to such immunity under Article 105(2) will, however, depend on the interpretation of the provisions of Article 105(2). 131. As indicated earlier, Article 105(2) is in two parts. In these appeals we are required to consider the first part which provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof. The immunity that has been conferred by this provision is : (i) only on the Member of Parliament, (ii) with regard to liability in any proceedings in any court, which woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of this Court in State of madras v. M/s Swastik Tobacco Factory, Vedaranyam, 1966 (3) SCR 79. 134. In Tej Kiran Jain the appellants had filed a suit for damages in respect of defamatory statements alleged to have been made by certain members of Parliament on the floor of the Lok Sabha during a calling attention motion. The said suit was dismissed by the High Court on the view that no proceedings could be initiated in respect of anything said on the floor of the House in view of Article 105(2) of the Constitution. Before this Court it was contended on behalf of the plaintiffs that the immunity under Article 105(2) was granted to what was relevant to the business of Parliament and not to something which was irrelevant. The said contention was rejected by the Court. It was observed :- "The article confers immunity inter alia in respect of 'anything said ....... in Parliament'. The word 'anything' is of the widest import and is equivalent to 'everything'. The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, if not sooner discharged by the House, is immediately released from confinement on prorogation. [See " may's Parliamentary Practice, 21st Edn. pp. 103, 109 and 111]. The House of Parliament in India cannot claim a higher power. The Salmon Commission has stated that "whilst the theoretical power of the House to commit a person into custody undoubtedly exists, nobody has been committed to prison for contempt of Parliament for a hundred years or son, and it is most unlikely that Parliament would use this power in modern conditions". [para 306[]. The Salmon Commission has also expressed the view that in view of the special expertise that is necessary for this type of inquiry the Committee of Privileges do not provide an investigative machinery comparable to that of a police investigation. [para 310] 136. The expression 'in respect of' has to be construed in this perspective. The cases cited by Shri Rao do show that this expression has been construed as having a wider meaning to convey 'some connection or relation in between the two subject matters to which the words refer'. But as laid down by this Court in The State of Madras v. M/s Swastik Tabacco Factory, Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The immunity granted under Article 105(2) would not be available to such a Member and he would be liable to be prosecuted on the charge of bribery in a criminal court. What would b e the position if the agreement is that in lieu of the illegal gratification paid or promised the Member would speak or give his vote in Parliament in a particular manner and he speaks and gives his vote in that manner? As per the wide meaning suggested by Shri Rao for the expression 'in respect of', the immunity for prosecution would be available to the Member who has received illegal gratification under such an agreement for speaking or giving his vote and who has spoken or given his vote in Parliament as per the said agreement because such acceptance of illegal gratification has a nexus or connection with such speaking or giving of vote by that Member. If the construction placed by Shri Rao on the expression 'in respect of' is adopted, a Member would be liable to be prosecuted on a charge of bribery if he accepts bribe for not speaking or for not giving his vote on a matter under consideration before the House but he would enjoy immunity from prosecution for such a charge if he accepts bribe for sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ators, clause (2) emphasises the fact that the said freedom is intended to the abosolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may given in the Legislature or any committee thereof. In other words, even if a legislator exercises his right of freedom of speech in violation, say, of Article 21, he would not be liable for any action in any court. Similarly, if the legislator by his speech or vote, is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court. If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any court by this clause." [p. 441] 139. With regard to liability arising from giving of vote in the House an illustration is furnished by the decision of the US Supreme Court in Kilbourn v. Thompson, 26. L.Ed. 377. In the case one Hallet Kilbourn was found guilty of contempt of the House of Representatives and was ordered to be detained in custody under a resolution pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is not illegal. In view of the proviso to Section 120A IPC an agreement to commit an offence shall by itself amount to criminal conspiracy and it is not necessary that some act besides the agreement should be done by one or more parties to such agreement in pursuance thereof. This means that the offence of criminal conspiracy would be committed if two or more persons enter into an agreement to commit the offence of bribery and it is immaterial whether in pursuance of that agreement that act that was agreed to be done in lieu of payment of money was done or not. 142. The criminal liability incurred by a Member of Parliament who has accepted bribe for speaking or giving his vote in Parliament in a particular manner thus arises independently of the making of the speech or giving of vote by the Member and the said liability cannot, therefore, be regarded as a liability 'in respect of anything said or any vote given' in Parliament. We are, therefore, of the opinion that the protection granted under Article 105(2) cannot be invoked by any of the appellants to claim immunity from prosecution on the substantive charge in respect of the offences punishable under Section 7, Section 13(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law necessary, either as a substitute for, or in addition to, its own proceeding, the Attorney General has been directed to prosecute the offender." [18th Edn. p.127] In the Legislative Privileges Case, while construing clause (3) of Article 194, which was in the same terms as clause (3) of Article 105, this Court has said :- "This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to ave subsisted at the commencement of the Constitution, i.e., on January 26, 1950. It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld that under the latter part of clause (3) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in England, when the Constitution was adopted in 1950, the fact that such conduct was being treated as a breach of privilege by the House of Commons in England at that time would not necessarily mean that the courts would have been precluded from trying the offence of bribery committed by a Member of Parliament if it were to be treated as an offence. In Australia and Canada where bribery of a legislator was treated as an offence at common law the courts in White, Boston and Bunting has held that the legislator could be prosecuted in the criminal court for the said offence. It cannot, therefore, be said that since acceptance of bribe by a Member of House of Commons was treated as a breach of privilege by the House of Commons and action could be taken by the House for contempt against the Member, the Members of the House of Commons, on January 26. 1950, were enjoying a privilege that in respect of conduct involving acceptance of bribe in connection with the business of Parliament, they could only be punished for breach of privilege of the House and they could not be prosecuted in a court of law. Clause (3) of Article 105 of the Constitution cannot, therefore, be invoked by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative activities and, with the exception of the United Kingdom, most of the commonwealth countries treat corruption and bribery by members of legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There appears to be no reason why legislators in India should be beyond the pale of laws governing bribery and corruption when all other public functionaries are subject to such laws. We are, therefore, unable to uphold the above contention of Shri Thakur. 146. On a consideration of the submissions urged by the learned counsel we arrive at the conclusion that on the basis of provisions contained in clauses (2) and (3) of Article 105, the appellants cannot claim immunity from prosecution on the charges that have been levelled against them. Whether a 'Public Servant' 147. We may now come to the question whether a Member of Parliament is a public servant for the purposes of the 1988 Act. Prior tot he enactment of the 1988 Act the law relating to prevention of corruption was governed by the Prevention of Corruption Act, 1947 [hereinafter referred to as 'the 1947 Act']. In Section 2 of the 1947 Act it was provided that for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, atuhenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; Eleventh.- Every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; Twelfth.- Every person- (a) In the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)." 148. In R.S.Nayak v. A.R. Antulay. 1984 (2) SCR 495, this Court construed the provisions of Section 21 IPC in order to determine whether a Member of the Legislative Assembly could be held to be a public servant for the purpose of the 1947 Act. The said question was considered in the light of clauses (3), (7) and (12)(a) of Section 21 IPC. It was pointed out that Members of Parliament i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the same time, while dealing with the contention that a Member of Legislative Assembly is not performing any public duty it was observed : "It is not necessary to examine this aspect because it would be rather difficult to accept an unduly vide submission that M.L.A. is not performing any public duty. However, it is unquestionable that he is not performing any public duty either directed by the Government or for the Government. He no doubt performs public duties cast on him by the Constitution and his electorate. He thus discharges constitutional functions for which he is remunerated by fees under t he Constitution and not by the Executive" [p. 548] The Court also considered the question whether a Member of the Legislative Assembly is a public servant with reference to clauses (3) and (7) of Section 21 IPC and held that a member of the Legislative Assembly did not fall within the ambit of the said clauses. 149. In the 1988 Act the expression 'public servant' has been defined in Section 2(c) which reas as follows :- "2(c) "public servant" means - (i) any person in the service or pay of the Government or remunerated by the Government by fees or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority. Explanation 1.- Person falling under any of the above sub-clauses are public servants, whether appointed by the Government or not. Explanation 2.- Wherever the words "public servant" occur, they shall be understood of ever person who is in actual possession of the situation of a public servant, whatever legal defeat there may be in his right to hold that situation." The expression "public duty" is defined in Section 2(b) in these terms :- "2(b) "public duty" means a duty in the discharge of which the State, the public or the community at large has an interest; Explanation.- In this clause "State" includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);" 150. The clause relevant for our purpose is clause (viii) wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a member of the State Legislature holds an office. That view has been affirmed by the High Court of Australia in Boston. Isaacs & Rich, JJ. said : "A Member of Parliament is, therefore, in the highest sense, as servant of the State; his duties are those appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recongnized place in the constitutional machinery of government. Why, then, does he not hold an "office"? In R.V. White it was held, as a matter of course, that the does. That decision is sound. "Office" is defined in the Oxford Dictionary, as including :- "5. A position or place to which certain duties are attached, esp, one of a more or less public character; a position of trust, authority, or service under constituted authority." And "Officer" is defined (inter alia) as "2. One who holds an office, post, or place. (a) One who holds a public, civil, or ecclesiastical office; ... a person authoritatively appointed or elected to exercise some function pertaining to public life." Clearly a member of Parliament is a "public officer" in a very real sense , f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parishad], The learned Attorney General has also invited our attention to the provisions of The Salary, Allowances and Pension of Members, of Parliament Act, 1854 wherein the expression 'term of office', as defined in Section 2(e) cover in members of the Council of State as well as the House of the People, has been used in Section 3 (salaries and daily allowances) Section 4 (travelling allowances) Section 6(2) (free transit by railway) Section 6-A(2) (free transit by steamer) and Section 8A(1) (Pension). 158. It would thus appear that although in the Constitution the word 'office' has been used in the provisions relating to Members of Parliament and members of State Legislature but in other parliamentary enactment relating to members of Parliament the word 'office' has been used. Having regard to the provisions of the Constitution and the Representation of the People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954 and the meaning that has been given to the expression 'office' in the decisions of this Court, we are of the view that Membership of Parliament is an 'office' inasmuch as it is a position carrying certain responsibilities which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as said :- "When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position : he cannot retain the honour and divest himself of the duties. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and if necessary, of calling it to account in the constitutional way by censure from his place in Parliament - censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible Government, which is the Keystone of our Political system, and is the main constitutional safeguard the community possesses," [p. 402] 162. In Boston while examining the nature of duties of Member of Parliament, Isaacs & Rich, JJ. have reiterated the above quoted observations in Horne v. Brber and have said :- "The fundamental obligation of a member in relation to the Parliament of which he is a constituent unit still susbsists as essentially as at any period of our history. That fundamental obligation which is the key to this case is the duty to serve and, in serving, to act with fidelity an d with a singlemindedness for the wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink that an MP or an MLA could in certain circumstances hold an office where he Act. If an MP or an MLA does certain acts not qua-MP or qua-MLA, but as an individual, abusing his position, I am not using the word 'Office' I think he will be covered like any other individual under Section 8, 9 and 12. When an MP or an MLA holds an office, and by virtue of that office he has to discharge certain public duties, I think he will be covered under Section 2 clause (b) read with Section 2 Clause (c) Subclause (viii). I think these two situations are quite adequate to take care of defaulting Members of Parliament and defaulting Members of the Legislative Assemblies." Rajya Sabha "Now I will reply to the best of my ability how an MP or an MLA comes within the ambit of this Bill. I have tried to explain it in the Lok Sabha and I will try to do so here within my limits and to the best of my capacity. But if you are quoting my speech, please quote the entire paragraphs. Don't take one sentence and then para phrase, it and give your commentary on its. Read the whole paragraph, it is very clear. I have said that an MP or an MLA will in my opinion, come within the scope of this Bill i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion taken by the courts in England in this regard and that it has been held that the statement of the Minister who had moved the Bill in Parliament can be taken into consideration for the purpose of interpreting the provisions of the enactment. 166. The view which prevailed earlier with the courts in England was that references to Parliamentary material as an aid to statutory construction is not permissible. The said exclusionary rule precluded the court from looking even at reports made by Commissioners on which legislation was based. The rigidity of the said rule was relaxed in later decisions so as to permit reports of Commissioners, including Law Commissioners, and white papers to be looked at for the purpose solely of ascertaining the mischief the statute is intended to cure but not for the purpose of discovering the meaning of the words used by Parliament to effect such cure. Parliamentary debates were, however, not looked at as an aid to construction. The rationale for the exclusion of parliament debates is contained in the speech of Lord Reld in Black-Clawson International Ltd. v. Papierworke Waldh of-Aschaffenburg, 1975 AC 591. The learned Lord Reid has said :- "W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed by the English courts. Parliamentary debates on a Bull were held to be inadmissible for construction of the Act [See : Aswini Kumar Ghose v. Arabinda Bose. 1953 SCR 1 at p. 29]. But in later judgment this court has referred to the speech of the Minister while introducing the Bill in the Legislature for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. In K.P. Verghese v. Income Tax Officer, 1982 (1) SCR 629, Bhagwati, J. (as the learned Chief Justice then was) has said : "Now it is true that the speeches made by the Members of the Legislatures on the florr of the House when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision but he speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted." [p. 645] 169. The other decisions of this Court cited by Shri Rao do not lay down any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also do not give any indication about the situations in which a Member of Parliament or a Member of the State Legislature would be treated as a public servant and the situations in which he will not be treated as a public servant. Shri Kapil Sibal has submitted that what the Minister meant was that if a Member of Parliament or a Member of the State Legislature is given some other assignment, e.g. membership of a delegation, then in connection with that assignment his position would be that of a public servant under the 1988 Act. The language used in Section 2(c)(viii) does not lend support to such a limited construction of the said provision. 172. Having regard to the object of the 1988 Act as indicated in the Statement of Objects and Reasons, namely, to widen the scope of the definition of the expression "public servant". which is sought to be achieved by introducing the definition of "public duty" in Section 2(b) and the definition of 'public servant' in Section 2(c) which enlarges the scope of the existing definition of public servant contained in Section 21 IPC, we do not find any justification for restricting the scope of the wide words used in sub-clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been committed by a public servant except with the previous sanction of the authority specified in Clauses (a), (b) or (c) of Sub-section (1) of Section 19. It is submitted that none of the Clauses (a), (b) or (c) of Sub-section (1) of Section 19 is applicable in respect of a Member of Parliament and that there is no authority who can grant sanction for prosecution of a Member of Parliament which means that a Member of Parliament does not fall within the purview of the 1988 Act. Reliance has been placed on the observations of Shetty J. and Verma J. (as the learned Chief Justice then was) in K. Veeraswami v. Union of India and Ors.: (1992) IILL J53b SC, and the decision of the Orissa High Court in Habibulla Khan. 177. The learned Attorney General has, on the other hand, urged that the requirement of previous sanction under Section 19 of the 1988 Act only imposes a limitation on the power of the court to take cognizance under Section 190 Cr. P.C. of the offences mentioned in Sub-section (1) of Section 19 and that if a public servant is not covered by any of the Clauses (a), (b) and (c) of Section 19(1) and there is no authority who could grant sanction for his prosecution, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the CrPC, 1973 (2 of 1974),- (a) 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 the 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; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for the purpose of Section 6 of the 1947 Act a Judge of the Superior Court fell in Clause (c) of Section 6(1) and that the President of India is the authority competent to grant sanction for his prosecution. The learned counsel for the appellants have placed reliance on the following observations in the judgement of Shetty J. wherein the learned Judge has construed the provisions of Section 6 of the 1947 Act:- "Section 6 may now be analysed. Clause (a) of Section 6(1) covers public servants employed in connection with the affairs of the Union. The prescribed authority for giving prior sanction for such persons would be the Central Government. Clause (b) of Section 6(1) covers public servants in connection with the affairs of the State. The competent authority to give prior sanction for prosecution of such persons would be the State Government. Clauses (a) and (b) would thus cover the cases of public servants who are employed in connection with the affairs of the Union or State and are not removable from their office save by or with the sanction of the Central Government or the State Government. That is not the end. The section goes further in Clause (c) to cover the rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servant' has been introduced in Section 2(c) of the 1988 Act. A comparison of the definition of 'public servant' contained in Section 21 IPC and that contained in Section 2(c) of the 1988 Act would show that Section 21 IPC did not include persons falling under Sub- clauses (ix),(x), (xi) and (xii) of Section 2(c). Sub-clause (viii) of Section 2(c) is also wider in amplitude than Clause 12(a) of Section 21 IPC. 182. 182. In Veeraswami while considering whether Parliament is the authority which could grant sanction for prosecution of a Judge of the Supreme Court since under Article 124(4) of the Constitution, the address must be passed by each House of Parliament, Shetty J. has said :- "The grant of sanction requires consideration of material collected by the investigative agency and Parliament cannot properly consider the material. Parliament is wholly unsuitable to that work. It would be reasonable to presume that the legislature while enacting Clause (c) of Section 6(1) of the Act could not have intended Parliament to be the sanctioning authority." [p. 244] The enlarged definition of public servant in Section 2(c) of the 1988 Act includes persons who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 183. This would mean that the definition of 'public servant' in Section 2(c) of the 1988 Act includes persons who are public servants under that provision though the criterion of removability does not apply to them and there is no single individual authority which is competent to grant sanction for their prosecution under Section 19 of the 1988 Act. In respect of a Member of Parliament the Constitution does not confer on any particular authority the power to remove him. Clause (1) of Article 103 lays down that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred to the decision of the President and his decision shall be final. The said function of the President is in the nature of an adjudicatory function which is to be exercised in the event of a dispute giving rise to the question whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102 being raised. If the President holds that the member has become subject to a disqualification mentioned in Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 2(c)(viii) of the 1988 Act we have held that a Member of Parliament is a public servant, a Member of Parliament has to be treated as public servant for the purpose of the 1988 Act even though there is no authority who can grant sanction for his prosecution under Section 19(1) of the 1988 Act. 184. It is then urged that if it is found that there is no authority who is competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the 1988 Act then a Member of Parliament would fall outside the purview of the Act because in view of the provisions of Section 19 sanction is imperative for prosecution in respect of an offence under the 1988 Act. In support of this contention reliance has been placed on the following observations in the dissenting judgment of Verma J. in Veeraswami :- "The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a public servant covered by the Act, it must follow that the holder of an office who may be a public servant according to the wide definition of the expression in the Act but whose category for the grant of sanction for prosecution is not envisaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the consent of the authority or the party interested in the prosecution or aggrieved by the offence." [pp. 1043, 1044] "When the provisions of Section 6 of the Act are examined it is manifest that two conditions must be fulfilled before its provisions become applicable. One is that the offences mentioned therein must be committed by a public servant and the other is that that person is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government or is a public servant who is removable from his office by any other competent authority. Both these conditions must be present to prevent a court from taking cognizance of an offence mentioned in the section without the previous sanction of the Central Government or the State Government or the authority competent to remove the public servant from his office. If either of these conditions is lacking, the essential requirements of the section are wanting and the provisions of the section do not stand in the way of a court taking cognizance without previous sanction." [p. 1045] This means that when there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be excluded. It is hoped that Parliament will provide for an adequate safeguard in that regard by making suitable amendment in the 1988 Act. But till such safeguard is provided, it appears appropriate to us that protection from being subjected to criminal prosecution on the basis of malicious or frivolous allegations should be available to Members of Parliament. 187. In Veeraswami this Court, while considering the question regarding the applicability of the provisions of the 1947 Act to Judges of Superior Courts, has held that Judges of Superior Courts fall within the purview of the said Act and that the President is the authority competent to grant sanction for their prosecution. But keeping in view the need for preserving the independence of the judiciary and the fact that the Chief Justice of India, being the head of the judiciary, is primarily concerned with the integrity and impartiality of the judiciary, the Court has directed that the Chief Justice of India should be consulted at the stage of examining the question of granting sanction for prosecution. In relation to Members of Rajya Sabha/ Lok Sabha the Chairman of the Rajya Sabha/ Speaker of the Lok Sabha holds a po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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