letterhead - legal opinion on whether ordinary crimes attract parliamentary privilege
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K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390
Page 1 of 31
Date: 21-Feb-2012
To
1. Sri. Anand R. Yadwad S/o. Rachappa Aged 39 years Residing at: # 11, 8th ‘A’ Block, Nandi Gardens, J.P.Nagar, 9th Phase, Bangalore – 560 062.
2. Sri. Deepak C.N S/o Nagaraju C.M Aged 33 years Residing at: F-723, 13th Cross, 1st Phase, BEL Layout, Bharathnagar, Bangalore – 560 091.
Subject: Legal opinion sought by you on whether “ordinary
crimes committed inside the Karnataka Legislative
Assembly attract and are protected by
‘parliamentary privileges’?”
Dear Sir
1. The subject of ‘parliamentary privilege’ is often misunderstood.
2. Commission of ‘ordinary crimes’ inside the Legislative Assembly
of a State cannot and has never attracted ‘privileges’.
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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Page 2 of 31
3. The Constitution of India has deemed it essential and desirable
to confer on the Parliament of India and to the Legislature of
each of the States, privileges to the same extent as were available
to the British House of Commons as on the date of coming into
force of the Constitution of India.
4. Article 105 of the Constitution primarily deals with the issue of
‘privileges’ and ‘immunities’ of the Parliament. It says:
105. Powers, privileges, etc., of the Houses of Parliament
and of the members and committees thereof.
(1) Subject to the provisions of this Constitution and to the
rules and standing orders regulating the procedure of
Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any
proceedings in any court in respect of anything said or any
vote given by him in Parliament or any committee thereof,
and no person shall be so liable in respect of the publication
by or under the authority of either House of Parliament of
any report, 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 that House and of its members
and committees immediately before the coming into force of
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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section 15 of the Constitution (Forty-fourth Amendment) Act,
1978.
(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 Parliament.
5. Originally, Article 105(3) stood as under:
105 (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 the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.
6. However, the 44th Amendment to the Constitution substituted
the highlighted part in the aforesaid provision with the following
words:
“shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty Fourth Amendment) Act, 1978”.
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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7. As such, the Parliament of India has always had the opportunity
to vary the privileges attached to it by making an express and
specific law for the purpose of varying the privileges that were
attached to the British House of Commons as on 26-Jan-1950.
The Parliament of India has, however, chosen to not bring about
any specific legislation for the purpose of modifying British
parliamentary privileges that are otherwise attracted to it.
8. Similarly, the Constitution of India speaks of the privileges and
immunities of the State Legislatures in Article 194. Originally,
Articles 105 and 194 were identical in every respect except as to
the institution being the ‘Parliament’ in Article 105 and in article
194, the House of the Legislature of a State. Thereafter, the 44th
Amendment to the Constitution of India substituted the
reference to the ‘British House of Commons’ in Article 194
without altering the original scope of that article.
9. As is the case with the Parliament of India, none of the State
Legislatures have chosen to bring about any legislation to modify
or vary the British parliamentary privileges that are otherwise
attracted to them.
10. As may be seen from the above provision, the Constitution of
India originally did not distinguish between the privileges
available to the Parliament of India and those available to the
Legislature of each of the constituent States. Further, in view of
the fact that neither the Parliament of India nor the Legislatures
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390
Page 5 of 31
of the States have chosen to vary the British parliamentary
privileges that are otherwise attracted to them, the Parliament of
India as well as the Legislatures of the States currently enjoy the
same extent of privileges. Therefore, throughout the balance of
this opinion, the term ‘parliamentary privilege’ shall be used to
refer to privileges that also reside in the Legislatures of our
States.
11. As the Constitution of India was enforced on and from 26-Jan-
1950, any discussion on the subject of parliamentary privileges
in the context of the Constitution of India should necessarily
begin from a conspectus of what privileges were available to the
British House of Commons on 26-Jan-1950.
12. Contemporary constitutional scholars in Britain have always
maintained that their Parliament and their Courts have not
discovered any new set of parliamentary privileges in a very long
time. And, constitutional scholars in India fully concur that
since 26-Jan-1950, no new privileges have been discovered in
the context of the British Parliament.
13. As such, in the absence of decisions of Courts in India on a given
issue, the decisions of Courts in the United Kingdom on the
issue of whether ‘ordinary crimes’ attract parliamentary
privileges could be consulted without any hesitation as the
interpretation by those Courts simply relates to a privilege that
had existed in their own Parliament much prior to 26-Jan-1950.
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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Page 6 of 31
14. The privilege of freedom of speech in Parliament and other
privileges arose to a large extent out of the historical struggle in
England between the Monarch and the Parliament, especially
during the Tudor and Stuart periods. For an efficient
understanding of the scope of parliamentary privileges, it
becomes necessary to delve into its history. Constitutional
scholars generally credit the following history as the sure
foundation for modern ‘parliamentary privileges’: (reproduced
from a publication titled ‘New South Wales Legislative Council
Practice’)
The first reasoned plea for the right of members to speak
freely to matters before them was delivered by Speaker Sir
Thomas More in his address for privileges in 1523 in which
he requested that King Henry VIII (1509-47) accept what
members said in good part and in good faith for the
prosperity of the realm…By 1541 the request for freedom of
speech appeared routinely in the Speaker’s petition to the
King at the opening of Parliament.
Throughout the reign of Queen Elizabeth I (1558-1603), the
Parliament continued to claim the privilege of freedom of
speech, and by 1563 it was claiming it as an ancient right
which was simply to be confirmed by the Monarch.
However, the freedom was seen by many at that time as
limited to debate on legislation, rather than granting
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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members freedom to say whatever they willed. In 1593 Lord
Keeper Sir Edward Coke reminded the Speaker that the
Queen had granted liberal but not licentious speech.
Under King James I (1603-25) the struggle for freedom of
speech for members of Parliament intensified. The
Parliament insisted that its freedom of speech was an
‘inheritance’ of an ancient right, while the King viewed it as
a royal prerogative, granted by his ‘toleration’ and ‘derived
from the grace and permission of our ancestors and us’.
The Commons responded with the Protestation of 1621, in
which it claimed:
[T]hat every Member of the House of Commons hath
and of right ought to have freedom of speech … and …
like freedom from all impeachment, imprisonment and
molestation (other than by censure by the House itself)
for or concerning any speaking, reasoning or declaring
of any matter or matters touching the Parliament or
parliamentary business.
James I dissolved the Parliament shortly thereafter. …
However, it was during the reign of James’ son, King
Charles I (1625-49), that the struggle between the
Parliament and the Monarch reached its zenith. In 1629
Charles I ordered the arrest of three members of the
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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Commons, Sir John Eliot, Denzil Holles and Benjamin
Valentine, for speeches made in the House which the King
considered dangerous, libellous and seditious. Following the
dissolution of the Parliament the men were prosecuted in the
Court of King’s Bench, on charges of conspiring to resist the
King’s lawful command that the House adjourn, of
calumniating his ministers, of creating discord between King
and people, and of assaulting the Speaker. Although the
men claimed privilege, arguing that as their alleged offences
had been committed in Parliament they were not punishable
in any other place, the royal court found against them, and
they were subsequently imprisoned and fined.
The decision was extremely unpopular and contributed to
the growing opposition to Charles I. In 1641 the Commons
adopted resolutions declaring the entire proceedings against
its members a breach of privilege.
The climax of this struggle was reached on 4 January 1642
when Charles I, attended by an armed escort, entered the
Commons chamber and attempted to arrest five members
who were most prominent in Parliament’s attempt to transfer
control of the armed forces away from the Crown.
The relationship between Charles I and the Parliament was
fatally undermined by his attempt to arrest the five
members. … However, it was not until the ‘Glorious
K.V.DHANANJAY B.Com, LL.B ADVOCATE
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Revolution’ of 1689 that the long struggle between the Stuart
kings and the English people and Parliament was finally
resolved with the effective ‘election’ of William III and Mary II
as joint Monarchs on whom were imposed the terms of the
Bill of Rights 1689, including the provisions of Article 9.
15. The Bill of Rights 1689 provided statutory recognition once and
for all of the basic privilege of Parliament – freedom of speech.
Article 9 of the Bill of Rights, 1689 provides that:
“That the Freedome of Speech and Debates or Proceedings
in Parlyament ought not to be impeached or questioned in
any Court or Place out of Parlyament”.
16. In the context of such history, the scope of parliamentary
privileges was summarised by the Supreme Court of India in the
course of interpreting Article 105 (2) of the Constitution in the
case of T.K.Jain v. N.S. Reddy [(1971)1 S.C.R. 612]. It was
contended in the said case that immunity granted by Article
105(2) was with reference to the business of Parliament and not
in regard to something which was something utterly irrelevant.
The Supreme Court said:
"The article means what it says in language which could not
be plainer. 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
K.V.DHANANJAY B.Com, LL.B ADVOCATE
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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 proved that Parliament
was sitting and its business was being transacted, anything
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."
17. As such, the term parliamentary privilege refers to two aspects of
the law as it relates to Parliament: the immunities of the Houses
of Parliament, and the powers of the Houses of Parliament to
protect their processes. Both the immunities and powers of
Parliament are fundamental to enable it to perform its functions
of representing the people, scrutinising the actions of the
executive and reviewing and passing legislation.
18. As such, individual members of Parliament can claim privilege
only to the extent that some action, proposed or otherwise,
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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would impede them in carrying out their responsibilities and
duties as a member of the House, or adversely affect the proper
functioning of the House or a committee. While parliamentary
privilege gives members of Parliament immunities which exceed
those possessed by other bodies or individuals, it was never
intended to set them above the ordinary law. Members are
subject to the criminal law, except in relation to freedom of
speech and debates in the context of parliamentary proceedings.
19. In this context, the answer to the question whether ‘ordinary
crimes attract parliamentary privileges’, the answer would be an
emphatic, ‘No’.
20. Simply put, when a member engages in a certain conduct inside
the Parliament, the relevance, necessity, expectation, proximity,
relation or connection of such conduct to the business of the
Parliament is the factor that determines whether such conduct is
protected by ‘privilege’. Further, whether a privilege exists is a
matter for a court of law to decide. Therefore, the Parliament
cannot claim that it possesses a certain ‘privilege’ and then insist
that Courts ought to not enquire into the existence of such a
privilege. It has been too well established that whether a privilege
exists is squarely a matter for a court of law to decide. In
Stockdale v. Hansard [(1839) 9 Ad & E 1], in response to the
argument that the Parliament itself was a separate court with
K.V.DHANANJAY B.Com, LL.B ADVOCATE
No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001
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exclusive jurisdiction over the extent of its privileges, Lord
Denman, the Chief Justice, held that:
“When the subject matter falls within their jurisdiction, no
doubt we cannot question their judgment; but we are now
enquiring whether the subject matter does fall within the
jurisdiction of the House of Commons. It is contended that
they can bring it within their jurisdiction by declaring it so.
To this claim, as arising from their privileges, I have already
stated my answer: it is perfectly clear that none of these
courts could give themselves jurisdiction by adjudging that
they enjoy it”.
21. As such, when we set out in 2012 to ask whether ordinary
crimes are protected by “Parliamentary Privilege”, we encounter
little or no difficulty in emphatically saying, “No”.
22. The primary object behind the existence of ‘parliamentary
privileges’ is to allow absolute, uninhibited and unfettered
freedom to speak and debate inside the Parliament or the
Legislative Chamber. As such, the jurisdiction of Courts is
greatly barred in relation to the content, scope and nature of
parliamentary debates and speeches. Nothing that is said inside
Parliament can be made the basis for prosecuting the concerned
speaker in any Court of Law. The Parliament alone would be the
best judge on how to discipline its own members for the purpose
K.V.DHANANJAY B.Com, LL.B ADVOCATE
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of ensuring that its members retain absolute freedom to debate
and to transact within the Parliament.
23. Now, in the context of such unfettered freedom available in the
form of ‘parliamentary privileges’, what would be the result if one
member were to sexually assault another member inside the
house or if one member were to grievously injure another
member – while acting in the course of a parliamentary debate?
24. As a matter of law, such acts would constitute ‘ordinary crimes’
and are not protected by ‘parliamentary privileges’. Further,
Courts have had no difficulty whatsoever in declaring that such
acts would not be protected by parliamentary privileges.
25. In other words, say a member sexually assaults another member
or grievously assaults another member while the debates are in
progress inside the Parliament. Do parliamentary privileges
protect such acts?
26. To sexually assault another member or to grievously injure
another member are acts that have no connection, whatsoever,
to the transaction of business of the Parliament. And to
prosecute the wrongdoers is not an act that could inhibit,
howsoever, the free exercise of speech and debates inside the
Parliament. As such, a member who engages in such conduct is
liable to be prosecuted and tried without any reference to his
status as a member of Parliament or to the incidence of such
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crime having been committed within the hallowed halls of the
Parliament.
27. In Bradlaugh v. Gossett, [(1883-84) LR 12 QBD 271], Justice
Stephen, the judge considered as the master of the principles of
criminal law in the 19th century held:
“I know of no authority for the proposition that an ordinary
crime committed in the House of Commons would be
withdrawn from the ordinary course of criminal justice. One
of the leading authorities on the privilege of Parliament
contains matter on the point and shows how careful
Parliament has been to avoid even the appearance of
countenancing such a doctrine”.
28. Further, there is no decision of any Court of law in India that
has reversed the aforesaid doctrine to say that ‘ordinary crimes’
are protected by parliamentary privilege. In the case of
P.V.Narasimha Rao v. State (AIR 1998 SC 2120), the Hon’ble
Supreme Court analysed the allegations of bribery by several
members of Parliament and held that several acts within the
alleged bribery were not protected by ‘parliamentary privileges’.
This decision, I would state, reaffirms the principle that ‘ordinary
crimes’ are not protected by parliamentary privilege.
29. In the aforesaid case, the Supreme Court held that members of
Parliament who had received bribes to vote in a certain manner
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in a no-confidence motion against the Government headed by Sri
P.V.Narasimha Rao, member and Prime Minister were held to be
protected by parliamentary privilege as their act of receiving
bribes was made in respect of a vote in Parliament. The Court
held that article 105 (2) of the Constitution ought to be
interpreted in a manner as to protect those who receive bribes in
connection with their parliamentary functions. Further, the
Court also noted to the effect that the ‘authorities in Britain were
not unanimous in regard to whether a member of Parliament
who receives a bribe in connection with the performance of his
duty inside the Parliament commits an offence triable by a Court
of law’.
30. In quashing prosecution against members who were alleged to
have received the bribes, the Supreme Court held that:
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,
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).
31. Further, the Supreme Court refused to read ‘parliamentary
privilege’ to a member alleged to have received a bribe but who
had absented himself from the vote in the Parliament. This
K.V.DHANANJAY B.Com, LL.B ADVOCATE
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ruling, in my view, fully reaffirms the principle that ‘ordinary
crimes’ are not protected by parliamentary privilege. The Court
held:
Our conclusion is that the alleged bribe takers, other than
Ajit Singh, have the protection of Article 105(2) and are not
answerable in a court of law for the alleged conspiracy and
agreement. The charges against them must fail. Ajit Singh,
not having cast a vote on the no–confidence motion, derives
no immunity from Article 105(2)…
Ajit Singh (accused no.15) was a public servant, being
member of Parliament, when cognizance of the charges
against him was taken. He is charged with substantive
offences under Section 120B of the Indian Penal Code and
Section 7 and 13 (2) of the said Act. The trial of the charge
against him under Section 120B of the Indian Penal Code
must proceed.
32. As such, article 105 (2) of the Constitution of India has already
been interpreted by the Supreme Court of India to not protect
acts that cannot be shown to be made in ‘respect of proceedings
in Parliament’. Therefore, as ‘ordinary crimes’ are merely acts
that have no relation whatsoever to the acts of the Parliament,
‘ordinary crimes’ committed inside the Parliament are,
accordingly, not protected by parliamentary privileges.
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33. Further, the Supreme Court held in the aforesaid judgment that
members of Parliament who did bribe other members were not
protected by parliamentary privilege. The argument for Sri
P.V.Narasimha Rao, member of Parliament and the Prime
Minister who was alleged to have bribed other members that ‘the
act of giving bribes too should receive protection under
parliamentary privileges’ was rejected by the Supreme Court. It
specifically held and concluded that:
Mr. Rao 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
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 therefor.
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.
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P.V. Narasimha Rao, Satish Sharma, V. Rajeswar Rao, Ram
Linga Reddy, M. Veerappa Moily and Bhajan Lal (accused
nos.1, 2, 8, 10, 11 and 14) were public servants, being
either members of Parliament or a State legislature, when
cognizance of the charges against them was taken. They are
charged with substantive offences under Section 120B of the
Indian Penal Code and Section 12 of the said Act. Since no
prior sanction is required in respect of the charge under
Section 12 of the said Act, the trial on all charges against
them must proceed.
34. As may be seen from the above passages, the Supreme Court
held that acts that did not clearly constitute acts done ‘with
respect to proceedings in Parliament’ were not entitled to
protection under ‘parliamentary privilege’.
35. Further, the Supreme Court emphatically rejected the arguments
of certain liquor barons and other private persons who were
alleged to have similarly aided the bribing of members of
Parliament. The Court held:
D.K. Adikeshavulu and M.Thimme gowda (accused nos.12
and 13) were at all relevant times private persons. The trial
on all charges against them must proceed. When cognizance
of the charges against them was taken, Buta Singh and
H.M. Revanna (accused nos. 7 and 9) were not public
servants. The question of sanction for their prosecution, does
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not, therefore, arise and the trial on all charges against them
must proceed.
36. As such, I would like to reaffirm and state that ‘ordinary crimes’
do not attract ‘parliamentary privileges’.
37. Further, as recently as in 2009, members of the British
Parliament were discovered to have inflated their living expenses
for the purpose of falsely claiming allowances from the British
Parliament. Information about this case is wholly relevant to the
discussion in this opinion.
38. The British Parliament offers to its members, a scheme of travel
and living expense allowance. The members of Parliament are
permitted to claim expenses, including the cost of
accommodation, "wholly, exclusively and necessarily incurred for
the performance of a Member’s parliamentary duties".
39. For the purpose of effective administration of such a scheme, a
policy was evolved in the year 1971 and an elaborate mechanism
was devised thereunder with several committees constituted
within the British Parliament to receive such claims from
members and to verify and process such claims.
40. Beginning 08-May-2009, the Telegraph newspaper in London
started reporting on its investigation into the fraud and false
claims that had been made by dozens of members of Parliament.
Several members of Parliament:
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i. had claimed false and bogus expenses for services they had
not availed of;
ii. had claimed false and bogus expenses for accommodation
in houses that they had not resided in;
iii. had claimed false and bogus residence charges at places
that they had not stayed in;
iv. had claimed false and bogus expenses for certain IT
services they had neither sought nor received.
41. Pursuant to a national outrage and mass media criticism of
fraud at such high places, dozens of members were expelled from
their political parties and four members of the Parliament were
charged under Section 17(1)(b) of the Theft Act, 1968. Section
17(1)(b) of the Theft Act provides that: (reproduced to the extent
material for this discussion)
“False accounting:
(1) Where a person dishonestly, with a view to gain for
himself or another or with intent to cause loss to another,-
…(b) in furnishing information for any purpose produces or
makes use of any account, or any such record or document
as aforesaid, which to his knowledge is or may be
misleading, false or deceptive in a material particular; he
shall, on conviction on indictment, be liable to imprisonment
for a term not exceeding seven years.
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(2) For purposes of this section a person who makes or
concurs in making in an account or other document an entry
which is or may be misleading, false or deceptive in a
material particular, or who omits or concurs in omitting a
material particular from an account or other document, is to
be treated as falsifying the account or document. ”
42. The four members, Mr. David Chaytor, Lord Hanningfield, Mr.
Elliot Morley and Mr. Jim Devine claimed parliamentary privilege
for their ‘dishonest claims’. The four members of Parliament
argued before the Southwark Crown Court (analogous to the
Court of a Magistrate in India) that they could not be prosecuted
for their acts as those acts were committed inside the Parliament
and that their dishonest claims were made in relation to their
attendance in the Parliament. In short, their argument was that
their acts of dishonesty were protected by parliamentary
privilege. The Court of first instance dismissed their claims of
‘parliamentary privileges’ on 11-Jun-2010. Justice Saunders of
the Southwark Crown Court ruled that: [reported as 2010 EW
Misc 9 (EWCC)]
I am satisfied that in the context of criminal charges
Parliamentary privilege should be narrowly construed. The
principle that all men are equal before the law is an
important one and should be observed unless there is good
reason why it should not apply. To do otherwise would risk
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bringing both the Courts and Parliament into disrepute and
diminish confidence in the criminal justice system.
Parliament does not have an effective procedure for
investigating and deciding whether a member is guilty or not
guilty of criminal charges (see Para. 146 of the Joint
Committee Report)…
The claiming of expenses is an individual activity for the
benefit of the individual and any benefit to Parliament as a
whole is not a direct one. Further it is not part of a Member’s
duty to claim his expenses or allowances. He could not be
criticised for failing to carry out his duties as an MP if he did
not claim his allowances and his expenses. It would not be
an interference with the workings of Parliament or obstruct
the carrying out of their business. None of the justifications
for the existence of privilege would seem to apply to the
submission of the form. In my judgment it does not come
within the scope of the ‘exclusive jurisdiction of Parliament’
on any sensible construction of that privilege.
I can therefore see no logical, practical or moral justification
for a claim for expenses being covered by privilege; and I
can see no legal justification for it either. I suspect that, if it
had been suggested to members of either House, including
these Defendants, that their claims for expenses were
covered by privilege before these proceedings began, they
would have been extremely surprised. In my judgment, their
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surprise would be justified, because properly construed the
submission of the form is not part of ‘proceedings in
Parliament’.
In my judgment for all those reasons the conduct alleged
against these Defendants is not covered by Parliamentary
privilege and is triable in the Crown Court. I believe that this
conclusion is consistent with the pronouncements of
Parliament on the subject, the authorities to which I have
been referred and not least the principle underlying all
allegations of criminal conduct of equality before the law…
43. On appeal to the Court of Appeals, the arguments of
‘parliamentary privilege’ were dismissed in entirety by the Court
of Appeals (analogous to the High Courts in our States). The
court of appeals most emphatically declared that “it can
confidently be stated that parliamentary privilege or immunity
from criminal prosecution has never ever attached to ordinary
criminal activities by members of Parliament.” Dismissing the
appeals in entirety on 30-Jul-2010, an undivided Bench of 5
Justices of the Court of Appeals ruled that: [reported as 2010
EWCA Crim 1910]
More specifically, it seems to us that submitting a claim for
expenses has nothing to do with "the need to ensure the
member's entitlement to speak freely without fear"; nor does
it involve the exercise of his or her "real" or "essential"
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functions or his or her "core activities". It is true that a
member may need to spend money and recover expenses or
allowances in order to perform these functions, but that does
not render the incurring and claiming of expenses or
allowances a core or essential activity of Parliament: indeed
the incurring and claiming of expenses would be, as we
have already suggested, classic ancillary activities. If it were
otherwise, a member travelling to and from Parliament might
be thought to be immune from prosecution for dangerous
driving, or evading payment for his rail ticket. In truth, it is
impossible to see how subjecting dishonest claims for
expenses to criminal investigation would offend against the
rationale for parliamentary privilege, or obstruct any
member of the House from performing his or her duties.
It was suggested on the defendants' behalf that the correct
approach should be for privilege to attach to any dealing
that a member might have with the House, in his capacity as
such. That has its initial attraction, but on examination the
consequences would be strange. Thus, for example, if a
member were to assault an official of the Fees Office
because his claim for expenses was refused or delayed, this
would surely be ordinary crime which happened to be
committed in Parliament by a member of Parliament: it
would be an insult to Parliament to dignify it with some
adjective or epithet which implied otherwise, or excuse it on
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the basis of parliamentary privilege. And, precisely the same
principle would apply if the official of the Fees Office
assaulted the member of the House. Violent actions by either
would have nothing to do with the exercise by the member,
or for that matter, the official, of his parliamentary
responsibilities. It would therefore be curious if privilege
were to apply to the member who defrauded the Fees Office
by submitting a false claim for expenses to the very same
official.
It can confidently be stated that parliamentary privilege or
immunity from criminal prosecution has never ever attached
to ordinary criminal activities by members of Parliament.
With the necessary exception in relation to the exercise of
freedom of speech, it is difficult to envisage circumstances in
which the performance of the core responsibilities of a
member of Parliament might require or permit him or her to
commit crime, or in which the commission of crime could
form part of the proceedings in the House for the purposes of
article 9 of the Bill of Rights. Equally we cannot discern from
principle or authority that privilege or immunity in relation to
such conduct may arise merely because the allegations are
based on activities which have taken place "within the
walls" of Parliament.
The stark reality is that the defendants are alleged to have
taken advantage of the allowances scheme designed to
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enable them to perform their important public duties as
members of Parliament to commit crimes of dishonesty to
which parliamentary immunity or privilege does not, has
never, and, we believe, never would attach. If the allegations
are proved, and we emphasise, if they are proved, then
those against whom they are proved will have committed
ordinary crimes. Even stretching language to its limits we
are unable to envisage how dishonest claims by members of
Parliament for their expenses or allowances begin to involve
the legislative or core functions of the relevant House, or the
proper performance of their important public duties. In our
judgment no question of privilege arises, and the ordinary
process of the criminal justice system should take its normal
course, unaffected by any groundless anxiety that they
might constitute an infringement of the principles of
parliamentary privilege.
The decision of Saunders J was correct. The appeals will be
dismissed.
44. Further appeal to the United Kingdom Supreme Court was
similarly dismissed in entirety by an undivided Bench of 9
judges on 01-Dec-2010. The United Kingdom Supreme Court
(analogous to the Supreme Court of India) held: [reported as
2010 UKSC 52]
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None of these expressions of Parliamentary views lends
support to the suggestion that submitting claims for
allowances and expenses constitutes proceedings in
Parliament for the purposes of article 9. On the contrary they
all suggest, either expressly or by implication, that the
submission of such claims falls outside the protection of that
article. The recovery of allowances and expenses to defray
the costs involved in attending Parliament, or travelling on
Parliamentary business, has no closer nexus with
proceedings in Parliament than incurring those expenses.
There are good reasons of policy for giving article 9 a narrow
ambit that restricts it to the important purpose for which it
was enacted – freedom for Parliament to conduct its
legislative and deliberative business without interference
from the Crown or the Crown's judges. The protection of
article 9 is absolute. It is capable of variation by primary
legislation, but not capable of waiver, even by Parliamentary
resolution. Its effect where it applies is to prevent those
injured by civil wrongdoing from obtaining redress and to
prevent the prosecution of Members for conduct which is
criminal. As to the latter, Parliament has no criminal
jurisdiction…
Thus precedent, the views of Parliament and policy all point
in the same direction. Submitting claims for allowances and
expenses does not form part of, nor is it incidental to, the
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core or essential business of Parliament, which consists of
collective deliberation and decision making. The submission
of claims is an activity which is an incident of the
administration of Parliament; it is not part of the proceedings
in Parliament. I am satisfied that Saunders J and the Court
of Appeal were right to reject the defendants' reliance on
article 9.
Parliament has never challenged, in general, the application
of criminal law within the precincts of Parliament and has
accepted that the mere fact that a crime has been committed
within these precincts is no bar to the jurisdiction of the
criminal courts. In May 1812 John Bellingham was indicted,
tried and convicted of the murder of the Prime Minister,
Spencer Percival, at the entrance to the lobby of the House of
Commons. Bellingham was not a Member of Parliament, but
it would have made no difference had he been.
Where a crime is committed within the House of Commons,
this may well also constitute a contempt of Parliament. The
courts and Parliament have different, overlapping,
jurisdictions. The House can take disciplinary proceedings
for contempt and a court can try the offender for the crime…
Even if the House were not co-operating with the prosecuting
authorities in these cases, I do not consider that the court
would be prevented from exercising jurisdiction on the
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ground that they relate to matters within the exclusive
cognisance of Parliament. If an applicant sought to attack by
judicial review the scheme under which allowances and
expenses are paid the court would no doubt refuse the
application on the ground that this was a matter for the
House. Examination of the manner in which the scheme is
being implemented is not, however, a matter exclusively for
Parliament. It was not suggested that Members have a
contractual entitlement to allowances and expenses, but if
they were to have such contractual rights, I see no reason
why they should not sue for them. If a question were raised
as to whether allowances and expenses were taxable, the
court would be entitled to examine the circumstances in
which they were paid. Equally there is no bar in principle to
the Crown Court considering whether the claims made by
the defendants were fraudulent. This is not to exclude the
possibility that, in the course of a criminal prosecution,
issues might arise involving areas of inquiry precluded by
parliamentary privilege, although that seems unlikely having
regard to the particulars of the charges in the cases before
us.
For these reasons I am satisfied that neither article 9 nor the
exclusive cognisance of the House of Commons poses any
bar to the jurisdiction of the Crown Court to try these
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defendants. That is why I decided that each appeal should
be dismissed.
45. Consequently, the four members of Parliament were prosecuted
and tried for commission of offences under the Theft Act, 1968.
The outcome of these trials is as under:
46. Mr. David Chaytor: Mr. David Chaytor pleaded guilty to charges
of false accounting and was sentenced to 18 months
imprisonment by the Southwark Crown Court.
47. Lord Hanningfield: Lord Hanningfield pleaded not guilty to six
charges of false accounting, but was convicted at Chelmsford
Crown Court on 26-May-2011.
48. Mr. Elliot Morley: Mr. Elliot Morley admitted to two charges of
dishonesty and was sentenced at Southwark Crown Court on
20-May-2011 to 16 months imprisonment.
49. Mr. Jim Devine: Mr. Jim Devine pleaded not guilty and was
found guilty on two counts but cleared of a third (relating to
£360) on 10-February-2011. On 31-March-2011 he was
sentenced to 16 months imprisonment.
50. Further, two other members of Parliament were also tried and
convicted by the trial courts, under similar circumstances:
51. Lord Taylor of Warwick: Lord Taylor of Warwick pleaded not
guilty to six charges of false accounting, but was convicted at
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Southwark Crown Court on 25-January-2011. On 31-May-2011
he was sentenced to 12 months imprisonment.
52. Mr. Eric Illsley: Mr. Eric Illsley pleaded guilty to charges of false
accounting and was sentenced at Southwark Crown Court to 12
months imprisonment.
53. As such, I would like to most emphatically state that ordinary
crimes committed inside the Parliament or the Legislature of a
State are not protected by ‘parliamentary privileges’, A Court of
law possesses complete jurisdiction to try and punish members
of the Parliament or of a State Legislature who are shown to have
committed ‘ordinary crimes’ within the hallowed halls of the
Parliament or of the State Legislature.
Sincerely
K.V.DHANANJAY
Advocate
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