letterhead - legal opinion on whether ordinary crimes attract parliamentary privilege

K.V.DHANANJAY B.Com, LL.B ADVOCATE

No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001

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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’.



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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



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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”.



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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



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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.



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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



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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



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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



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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



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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,



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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



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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



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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



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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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