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BRIBE-TAKING
LEGISLATORS SHOULD BE LIABLE FOR PROSECUTION
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 |
