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Parliamentary privilege inIndia *by DShanmuganathan

In this article the author offers some advice to the Indian Parliamentin the light of the UKJoint Committee Report on ParliamentaryPrivilege 1999.

O n 1 M ay 2000, a full bench of theSupreme Courtof India referred a case filed by the Centre forPublic Interest Litigation to the ConstitutionalBench requesting a 'declaration regarding the correctness'To o oof the immunity provision under art. 105(2) of theConstitution for Members of Parliament withoutdisturbing the judgment in the case of P V Nar asimha Rao vState (CBI/SPE) (1998) 4 SC C 626 (hereafter PVN R ao).

The Constitution provides immunity as follows:'105. P owe r s , privileges etc. of he Hous e ofParliament and ofth e Members and Committees thereof(D ...(2) N o MemberofParliament shall be liable to any

pro ceedings in any court in respe c t ofanything said or any votegiven by him in Parliament or any Commit tee thereof, and noperson shall b e liable in respect of he publication by or underth e aut hority ofeither H ouse oj Parliament ofany re port , paper,votes o r proceedings.'

Ona previous occasion the Constitutional Bench of theSupreme Court, in a split decision of 3 to2, had held thatMembers of Parliament who accepted pecuniaryadvantages to vote in a particular pattern in the Parliamentwere entitled to immunity under art. 105(2) of theConstitution and absolved the charges levelle d againstthem. In the present case, the petitioner's forumchallenged that the lawmakers should not be granted'absolute immunity' against prosecution. The petitioner'scounsel told the Supreme Court that:

'... when so m e of hem give bribes to others to vo te inParliament, in a particular manner, andifpeople with criminalbackground s a re put in those positions, they will ha ve little or no

respect for th e rule ofa w . This will subvert th e ver y basis ofParlia mentary democracy. ' (Tim es of India, 2 May 2000)

Furthermore the counsel informed the Supreme Courtthat:

'... th e menace ofcorruption w a s posing a gr ave threat toparliamentary de mocracy, and every dignitary, rightfrom th ePresident and Prime M in ister , had been expressing concern overthis.'

The following da y the Supreme Court's referral wasechoed inthe Parliament. Some members expressed theirconcern that the judiciary was intruding into the subjectmatter of parliamentary sovereignty and the result seemedlikely to be a conflict between the legislature and thejudiciary.

The following discussionofthe Indian Supreme Court'searlier decision on parliamentary privilege and recentdevelopments in relation to parliamentary privilege in theUK could be a guideline for the Indian Parliament. Thiswould avoid the judiciary/legislature conflict, and providea new law to prosecute Members of Parliament for briberycharges by amending the existing law in the P revention ofC orruption A c t 1988.

BACKGROUND

Following the decision on 17 April 1998 in P V N R ao,where in a split decision of 3 to 2 the ConstitutionalBench of the Supreme Court held that Members ofParliament accepting pecuniary advantages to vote in ano-confidence motion were entitled to immunity (seeabove), the Constitutional Bench considered a number ofjudgments addressingthe issue of parliamentary privilege

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from various national courts in the UK, US, Australia andCanada, and failed to reach a unanimous decision.Although the Supreme Court of India discussed ajudgment of Buckley J in which the Honourable Judgeinvoked the common law for corruption charges against aMember of Parliament in England, the Bench felt that asthe judgment came from only a trial judge it could not berelied on as precedent (R v Greenway S^Ors (1998) PL 356).

Moreover, the majority opinion identified that asanctioning process, as required under the Prevention ofCorrupt ion Act 1988 for prosecuting public servants, isabsent in relation to Members of Parliament, who are inessence also public servants. Section 1 9 of the Prevention ofCorrupt ion Ac t 1988 requires:

'Prev ious sanc t ion necessaryjbr prosecu t ion (]) No Cour tshall take cognisance ofa n offence punishable under s . 7, 10 ,11, 13 and 1 5 alleged to have been commit ted by a publ icservant , except with the prev ious sanction.'

Hence the Supreme Court left the issue of briberyrelated to Members of Parliament to be addressed by theIndian Parliament.

SUPREME COURT REFERRALOn 1 M ay 2000, a full bench of the Supreme Court ofIndia referred a case filed by the Centre for PublicInterest Litigation to the Constitutional Benchrequesting a 'declaration regarding the correctness' ofthe immunity provision under art. 105(2) of theConstitution for Members of Parliament...

The recent UK Joint Committee Report onParliamentary Privilege 1999, headed by Lord Nicholls ofBirkenhead (vol. 1 , Stationery Office: London) addressedthe issue of parliamentary privilege for bribery charges. Itrecommended that parliamentary privilege should be setaside for bribery charges against Members of ParliamentJ o oand that the senior la w officer of the State should beappointed as the competent authority to grant sanction toprosecute Members of Parliament. This recommendationcould be helpful in addressing the issue of bribery amongMembers of Parliament in India. However, it would haveto be discussed by the Indian Parliament, before it couldimplement the necessary amendment to the Prevention ofCorrupt ion Act 1988 to provide for the prosecution ofMembers of Parliament for bribery charges irrespective ofwhether the alleged offence occurred inside or outsideParliament.

THE 1993 NO-CONFIDENCE MOTIONOn 26 July 1993, a no-confidence motion was moved in

Parliament against the minority government of the theno J oPrime Minister of India, Mr P V Narasimha Rao. At thattime he had the support of 2 5 1 Members of Parliamentout of 533. Mr Rao and his party's high command were

alleged to have engineered a campaign of bribing andsplitting the membership of different political parties inParliament in order to defeat the no-confidence motion.On 28 July 1993, the no-confidence motion wassuccessfully defeated on the floor.

In 1996, a complaint against the Prime Minister Mr P VNarasimha Rao and others was filed with the CentralBureau of Investigation India (the CBI) alleging that in19 9 3 there had been a criminal conspiracy by the rulingparty to gain a majority on the floor by bribing Membersof Parliament from different political parties, individualsand groups. On the basis of the complaint, cases wereregistered against Mr P V Narasimha Rao and othersunder s. 1 2 0 B of the Indian Penal Code (IPC) and s. 7,1 2 , 13(2), read with 13(l)(d)(iii), of the Prevention ofCorrupt ion Act 1988. After the completion of itsinvestigation the CBI filed three charge sheets before ao oSpecial Judge. The charges against Mr P V Narasimha Raoby the Special Judge (P V N Rao, p. 705) read as follows:

'That, you, P V Naras imha Rao, between July and Aug us t1993 at Delhi and Bangalore were par t y to a criminalconspiracy and agreed to enter in to an agreemen t with your co -accused to defeat the no-conf idence mot ion moved o n26 7 1993 ag a in s t the then Congress Governmen t headed byyou by i l legal means, viz., to offer or cause to offer and p a ygrat i f ica t ion o ther than th e legal remunerat ion to your co -accused persons namely JM M and Janata Dala M P s nam edabove as a mot ive o r rewardJbr their helping in defeat ing th esa id no-conf idence mot ion moved by the oppos i t ion part ies a n din purs uance of he sa id agreemen t you paid or caused to payseveral lakhs of rupees to th e above referredJM M and JanataDala M P s w ho o b ta ined or a t t empted to obta in th e same in th emanner s ta ted above and thereby you have commit ted an offencepunishable under s. 120-B IP C read wi th s . 7, 12 , 13(2) andread wi th s . 13( l)(d) of he Prevent ion ofCorruption A ct 1988with in my cognisance.

Secondly , you, P V Naras imha Ra o in p u r su a n c e of th eaforesaid cr iminal conspiracy during th e aforesaid per iod and a tth e aforesaid places abet ted the commission of he offencepunishable under s. 7 of he Prevent ion of Corrup t ion Act byabove referredJM M and Janata Dala M P s and thereby youhave commit ted a n offence punishable under s . 12 of hePrevent ion of Corrup t ion A ct and with in my cognisance . '

Similar charges were brought against other personsallegedly involved in these acts of bribery.LEGAL BATTLE F ROM TRIAL COURT TOSUPREME COURT

The accused initially raised objections concerning thejurisdiction of the court to try the case on the ground ofthe privileges and immunities of the House of Parliament.However, the Special Judge overruled these objections byholding that the case before him did not relate to thepattern of voting in Parliament, but to alleged illegal actscommitted by the accused outside Parliament. The

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accused also contended that as they were not publicservants, the Preven tion of Corrup tion Act 1988 was notrelevant in this ca se . The Sp ecial Judge rejected theirobjection, citing aDelhi High Court judgment(L KAdvaniv Central B ureau of Inves tigat ion (1997) 66 DLT 618) whichheld thata Member of Parliament is a public servant.

The Spe cia l Judge's order was later challenged beforethe Delhi High Court, which declined to interfere witho 'the order. Eventually thecase reached a Ful l Bench oftheSupreme Court, which, afterhearingargument frombothsides , felt that the questions raised by theaccused shouldbe decided by the Constitutional Bench. Accordingly theFul l Bench raised the following substantial question oflaw:

'a s to th e interpre tation of art . 105 of the Con stitution ofIndia raised by th e peti t ion ers/accu se d pe rso ns.'

The dissenting judgment of Mr Justice Agrawal and MrJustice Anand (concurring), found that the petitionerswere not entitled to claim immunity. On theother hand,the majority opinion of Mr Justice Bharucha and MrJustice Rajendra Babu (concurring) and the separateopinion fi le d by Mr Justice G N Ray found that bribetakers who voted in the no-confidence motion could notbe prosecuted forthe alleged crime.

Both majority and dissentingopinion relied mainly onCommonwealth judicial decisions, UK Parliamentaryreports and Erskine May's P arl iam entary P ractice.

POSITION IN THE UKWhere similar situations have arisen in the UK such as

'cash for questions' involving Members of Parliament,Parliament ha s commissionedreports to resolve the issues(D Oliver & G Drewry, eds, The L a w a n d P arl iame n t, Butterworths, 1998). Parliamentary reports such as theSalmon Report on Conduct in Public Life (1976 Cmnc l6524) and the Nolan Committee Report onStandards inPublic Eife (HMSO: Eondon 1995) were referred to bythe ConstitutionalBench in detail.

The Salmon Committee(at p. 98) addressed the issue ofbriberyof Membersof Parliamentthus:

'... neithe r th e statu tory n o r th e c o m m o n law a pplie s to th ebr ibery or attempted br ib ery of a Mem ber ofParliament in re sp ectofhis parliamentary a ct iv it ies but "corru p t transactions"in v o lv in g a Mem ber ofParliament in re sp ec t ofma tters that hadnothing to do w it h hi s pa rliamen tary act ivi t ies w o u ld be ca ugh tby th e o r d ina r y criminal law.'

The Salmon Committee recommended (at para. 311, p.99) thatMembers ofParliament should be brought within' Othe ambit of the criminal law forcorruption, bribery andattempted bribery.

' M e m bership ofP a r li a m e n t is a great honour and carr ies w ithit a specia l duty to maintain th e highest standards ofpr obi ty ,and this duty ha s almos t i nva r ia b ly be en str ic t ly observed ... W e

reco m m e n d that Parliamen t should co n si der br ing ing co rru p t ion ,br ib ery and attempted br ibery ojaM em ber of P ar l iam e n t ac tin gin hi s parliamentary ca pa c i ty within th e ambitof th e crimina llaw.'

Nearly 20 years after the Salmon Report, the 199 5Nolan CommitteeReport (at para. 104, p. 43) suggestedthat the issuebe left to the Eaw Commission.

"... W e reco m m e n d that th e Go vern m e n t sh ou ld n o w takesteps to clarify the law relating to th e bribery of o r th e receipt ofa bribe by a Mem be r oj Parliament... T his mightbe a task whic hth e L a w C o m m ission cou ld take fo rward.'In the period between these tworeports,Buckley J, in an

unreported judgmentin 199 2 (1998 PE 356 at 363) held:'That a Mem be r of Pa rliament ag ainst w ho m there is a prima

Jadecase of co rr upt io n should be immune from pro se cut ion inth e co u rt of a ws is to my mind an una cce p table p ro po s i tio n atth e p r esen t ti m e . Ido not believ e it to be th e law.'

The recent Joint Committee Report on ParliamentaryPrivileg e discussed Buc kley J's decision but noted that ithad not been considered by a higher court (at para. 136,p. 40):

"... The tr ial judge r u le d that m e m b e rs were su bject to th eco m m o n law offence , buthi s ru ling wa s no t te sted before th eco urt ofappeal.'

Mr Justice Bharucha (party to the majority) expressed asimilar opinion to the Joint Committee Report:

'F o r th e first tim e in England , B uckley J rule d in R vG re e n w a y that the mem ber ofparliament who accepts a br ibe to a buse hi s tru st is guilty of he co m m o n law offen ce of br ibery.T hi s innovation in En glish law n eeds to be tested in appeal.'(P V N Ra o at p. 731)

It is pertinent to mention herethat the report by the UKJoint Committee on Parliamentary Privilege (1999)recommended that Members of Parliament should beliable for prosecution for bribery charges under thecriminal law with the consent of the Attorney-General. Therelevantportion of the report (p . 5) is reproduced here:'B riber y

[ M e m b e rs of e ither ho u se are at pr ese nt subje ct by statute tothe law of br ib e ry in re sp ect ofpro ceedin gs in Parliamen t]

Recommen dation 13. Mem bers ofbo th ho uses sh ou ld beinclu ded withi n the scope offorthcoming legisla t ion on co rr upt io n . A rtic le 9 (B il l of Rights 1689) sh ould be se t a sidein an y criminal pro ce edin gsfor bribery. Pro s ecu tion un der th ene w legislat io n , whe ther of a mem ber o r non-member sh ouldrequir e th e co n sen t of a la w office r. '

Furtherthe Report recommended(at para. 17 3, p. 48):' ... W e a gree , and recommend that prosecu ti o n u n der th e

ne w legislatio n should requir e th e co n sen t of he Attorney G en era lo r, in Sco t la nd, the ex press co n sen t of he L o rd Advoca te.'

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