Bartered trust

The three BJP MPs who took money purportedly to expose the government in Parliament may be guilty of bribery.

in New DelhiOutside the Parliament

THE question whether Members of Parliament, who receive bribes to speak or vote in Parliament, are guilty of corruption keeps haunting those concerned with probity in public life.

In the 2005 cash-for-questions scam involving 11 Members of Parliament (10 from the Lok Sabha and one from the Rajya Sabha), Parliament committees set up to inquire into the allegations of bribe-taking by these MPs found them guilty of lowering the dignity of the House, and Parliament subsequently expelled them. In that case, the bribe-givers were mediapersons pursuing sting operations to uncover a pre-existing scam, and the Parliament committees found the original sting videotapes, submitted to them by the journalists, genuine. A Constitution Bench of the Supreme Court, on January 10, 2007, held that Parliament had the power to expel such MPs, subject to judicial review of the constitutionality of the action.

On July 22, 2008, the question returned with a difference. During the debate on the vote of confidence in the Lower House, three MPs displayed wads of currency notes carried in a bag, claiming that they were bribes received by them to abstain from voting on the confidence motion. The money was counted and deposited with the Speakers office, pending an inquiry, but the MPs made a formal complaint to the Speaker regarding the attempt to bribe them only on July 25.

Even if the three Bharatiya Janata Party MPs Ashok Argal, Faggan Singh Kulaste and Mahavir Bhagora genuinely wanted to expose those who bribed them, their attempt to score political points by using the live media coverage of the trust-vote debate clearly lowered the dignity of Parliament and contributed to public cynicism.

A leading television channel, which recorded the bribing of these MPs through a sting operation, however, submitted its recording to the Speaker, without telecasting it. The parliamentary committee that inquired the cash-for-questions scam, did not find the journalists who exposed the scam guilty, but only cautioned the need for proper regulations to monitor and telecast such sting operations. Therefore, the channels self-imposed censorship on telecasting the sting operation is baffling.

In all probability, a parliamentary committee will once again be constituted to inquire into the latest allegations. It will then be clear whether the three MPs deserve to be expelled for lowering the dignity of Parliament. They may well argue that their dramatic public display of currency notes was intended to shock the nation and Parliament about the ruling coalitions desperate attempts to win the confidence vote.

Whatever the results of the inquiry, the MPs may well use this opportunity to introspect the scope of the privileges granted to them by the Constitution, to enable them to speak or vote in Parliament, free from the fear of being made answerable in a court of law. The judgment (3:2) given by the Supreme Courts Constitution Bench in P.V. Narasimha Rao v. State (CBI/SPE) (AIR 1998 SC 2120) has been found to be inadequate to bring clarity to the issue. Nevertheless, as this is the law laid down by the Supreme Court, it deserves a close look to understand the legal implications of the latest scam.

The case pertains to the allegations of bribing MPs during the voting on the no-confidence motion in the Lok Sabha against the Narasimha Rao government on July 28, 1993. The motion was defeated with 251 members voting in favour of the motion and 265 voting against it.

The short question before the Bench was whether by virtue of Article 105 of the Constitution, an MP can claim immunity from prosecution on a charge of bribery in a criminal court and whether an MP is a public servant within the purview of the Prevention of Corruption Act, 1988. The Bench was unanimous that an MP is a public servant, but differed on whether a bribe-taker MP can claim protection under the Constitution if the bribe is related to his vote or speech in Parliament.

Article 105(2) says: 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.

The majority Judges (S.P. Bharucha, S. Rajendra Babu and G.N. Ray) held that in order to enable members to participate fearlessly in parliamentary debates, they need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. Therefore, they said that the bribe-takers, who voted in Parliament against the no-confidence motion, were entitled to protection under Article 105(2) and were not answerable in a court of law for alleged conspiracy. However, the protection under Article 105(2) was not available to the bribe-giving MPs, they said.

The majority Judges reasoned: We are acutely conscious of the seriousness of the offence that the alleged bribe-takers are said to have committed. If true, they bartered a most solemn trust committed to them by those they represented. By reason of the lucre that they received, they enabled a government to survive. Even so, they are entitled to the protection that the Constitution plainly affords them. Our sense of indignation should not lead us to construe the Constitution narrowly, imparting the guarantee to effective parliamentary participation and debate.

The minority Judges (S.C. Agrawal and A.S. Anand), in their dissent, said Article 105(2) did not prescribe that a speech made or vote given by a member in Parliament could not be made the basis of civil or criminal proceedings. The said clause only gives protection to the member who has made the speech or has given the vote from liability in any proceedings in a court of law, they observed.

According to the minority Judges, the offence is complete with the acceptance of money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the money would be treated to have committed the offence even when he defaults in the illegal bargain, they said. For proving the offence of bribery, all that is required to be established is that the offender has received or agreed to receive money for a promise to act in a certain way. It is not necessary to go further and prove that he actually acted in that way, they explained.

This definition of bribery consistent with Section 120-A of the Indian Penal Code, which defines criminal conspiracy was not disputed by the majority Judges. It is this definition that is likely to make the action of the three BJP MPs, who took bribes purportedly to expose the government in Parliament, guilty of the offence of bribery, although they did not fulfil their promise to the bribe-givers.

There can be no dispute that the three MPs complaint must be fully probed and the conspirators, including the alleged bribe-givers, booked for the offence of bribery. But it is debatable whether the MPs can claim protection under Article 105(2), which protects an MP only for anything said or voted, and which may have a nexus with the bribe allegedly taken. The action of displaying the wads of currency notes cannot be considered as anything said or voted.