MP'S Immunity: Is there a need for review


by Justice Jeevan Reddy

The four Jharkhand Mukti Morcha (JMM) Members of Parliament who voted for the Narasimha Rao government in return for monetary consideration were let off by the court on the basis of the words contained in one significant clause in the Constitution, viz. clause 2, Article 105: “in respect of anything said, or any vote given by him”.

Article 105 guarantees the members of Parliament absolute freedom of speech in the House. Clause 2 of this article, which is actually a continuation of clause 1, enjoins that no proceedings shall be taken against any Member of Parliament in a court of law ‘in respect of anything said or any vote cast by any member within the House’. And clause 3 specifies that the privileges and immunities of the members of Parliament shall be the same as those of the members of England’s House of Commons.

In the JMM case, the prosecution argued that the four JMM MPs and Ajit Singh were given money for voting against the motion of no confidence against Narasimha Rao. (It was a minority government and needed the support of MPs of other parties to defeat the motion). The JMM MPs voted against the motion, while Ajit Singh took the bribe but did not cast his vote.

The Supreme Court having already held that the members of Parliament are public servants, and come under the purview of the Prevention of Corruption Act and the Indian Penal Code, the prosecution framed charges against those who took the bribes as well as those who gave them.

But the JMM MPs contended in the Supreme Court that even if, assuming that they have taken the bribes the court cannot prosecute or punish them for that because of the language contained in the clause 2 of article 105. In short, even if money was offered, it is something, which is in respect of their casting of a vote in Parliament.

An identical question was gone into by the US Supreme Court in 1962 in what is known as the Brewster’s case. In that case, the majority (six out of nine judges) held that the charter of absolute freedom given to members of Congress is not a charter for corruption. It amounts to perverting the basic concept behind the charter of freedom. Members cannot sell themselves. However, the minority opinion (three out of nine) held a contrary view. According to this view, if such protection were not guaranteed to the members of the legislature, then they would feel constrained or not absolutely free in the manner of voting or speaking in the house. They said that the threat of such prosecution in the court could have a chilling effect on the free speech right. The Brewster’s case was extensively cited and relied upon by both three prosecution and the defence counsels while arguing the JMM bribery case.

But in the case of our Supreme Court, three out of the five judges or the majority opinion decided to follow the minority opinion given in the Brewster’s case. Which meant that the freedom of speech was absolute and the MPs could not be prosecuted in respect of anything said or any vote cast by any member within the house. Whereas, the minority of two judges preferred the majority opinion given in the American case that the freedom of speech cannot be absolute. The judges while giving the judgment further pointed out that Ajit Singh who had also taken the bribe but not voted could not claim immunity since he did not cast his vote.

Another question, which was considered by the judges, was that under the Prevention of Corruption Act, sanction of the appropriate authority has to be obtained before a public servants but that neither the Prevention of Corruption Act nor the Constitution specifies who should be the authority to sanction the prosecution. On this issue there was a divergence of opinion amongst the judges. The minority was of the view that the permission of the Speaker in the case of the Lok Sabha and the Chairman in the case of the Rajya Sabha was sufficient, as they were the competent authority. The majority view held that since it was not specified, no one could give this sanction. But they also pointed out that this is not a happy situation and it calls for a change.

Before we go into the changes that are being proposed to be introduced, one important distinction between the American and Indian legislature needs to be highlighted. In the United States, as a result of the Principle, of Separation of Powers, how you vote has no effect on the life of the executive. For instance, in the Clinton impeachment trial, many Democrats voted against Clinton while many Republicans voted for him. The party discipline is not of great significance. But in a parliamentary system like in India, party discipline is of great import as it can make or break a government. It is for this reason that we have a provision for a party whip etc.

The question that needs to be considered is whether the majority opinion of the Supreme Court that MPs enjoy freedom in respect of speech and voting in Parliament should be introduced. To probe this question reference was made to earlier cases, English cases, Lord Salmon and Lord Nolan’s reports, the British Law Commission etc. Most took the view that bribe taking cannot be allowed.

So, we were prima facie of the opinion and this should not be permitted.

There are two alternatives, which can be considered. Whether immunity should be removed only in respect of voting or both in respect of voting and speaking. We have suggested a new clause in article 105. Clause 3 (a) ‘Nothing in the clause 1,2,3 should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act etc, if they take money for voting in Parliament’. The other issue is of the competent authority to grant sanction for prosecution. We have suggested the constitution of a permanent committee of five members elected by the MPs themselves. It would comprise three members from the Lok Sabha and two from the Rajya Sabha.

We have made this consultation paper public to generate a debate. We have to still finally make up our minds on whether to suggest this change and the manner in which this is to be effected or to let the situation remain as it is.

Hindustan Times 14-1-2001