The givers and the takers

The Supreme Court's order upholding the immunity of MPs from legal proceedings for their actions in Parliament marks in effect the demise of a major political corruption scandal.

IN July 1993, four Jharkhand Mukti Morcha (JMM) members of Parliament along with seven members of a breakaway faction of the Janata Dal(A) were allegedly paid at least Rs. 8.7 crores to ensure the survival of the P.V. Narasimha Rao Government. Now the Supreme Court has held that the MPs who cast their votes accordingly committed no crime that the legal system can act on. The Supreme Court's April 17 order upholding the immunity of MPs from legal proceedings for their speeches or votes in Parliament marks in effect the demise of one of India's most sordid political corruption scandals. But the Supreme Court order is not as bizarre as it might appear initially, and should serve as a platform for meaningful debate on just what needs to be done to address the subversion of Parliament by suitcases stuffed with cash.

The Constitution Bench of the Supreme Court which heard the appeals of several persons accused in "the JMM scandal", notably former Prime Minister Narasimha Rao, was in essence considering two broad issues. Since the time legal proceedings in the JMM case were launched, the accused had claimed that there were no grounds for a trial against them. The MPs' votes in Parliament, they argued, were protected from review in the judicial domain. Questions as to whether MPs were public servants and could therefore be prosecuted under the Prevention of Corruption Act, were also raised. Special Judge Ajit Bharihoke rejected these contentions in May 1997 and ordered that charges be framed against Narasimha Rao and the other accused. Justice Jaspal Rana of the Delhi High Court rejected the arguments against Bharihoke's order in September. The Supreme Court which first heard Narasimha Rao's subsequent appeal too refused to stay the trial.

Most citizens were, not surprisingly, delighted with India's first-ever trial of a former Prime Minister, and the apparent judicial resolve not to allow the accused to stonewall legal proceedings. Indeed, most legal observers had been convinced that the JMM scandal was the most serious of all the criminal corruption cases that emerged from the Narasimha Rao period, and the one which held out the most likely possibility of conviction. The investigators discovered not only cash that the JMM MPs could not account for from their bank accounts, but evidence that they had forged party donation receipts in an attempt to cover up the discovery. One of the four JMM MPs, Shailendra Mahato, turned approver, and gave a detailed account before Judge Bharihoke of how the affair was engineered. Understandably, the Supreme Court's decision not to allow the prosecution of the four JMM MPs, along with the Janata Dal(A)'s Ram Lakhan Singh Yadav, Anadi Charan Das, Abhay Pratap Singh and Haji Ghulam Mohammad, was greeted with more than a little dismay.

THE key issue that Narasimha Rao's lawyers raised in the Supreme Court was the meaning of Article 105 (2) of the Constitution. "No member of Parliament," the Article reads, "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 purpose of this constitutional protection was to defend the independence and integrity of Parliament. It had its origins in one of the key documents of parliamentary democracy, Article 9 of the 1688-1689 Bill of Rights executed in Britain. In response to the constant use by both Tudor and Stuart monarchs of criminal and civil laws to harass MPs, Article 9 provided special protections. "The freedom of speech and debate of proceedings in Parliament," it reads, "ought not to be impeached or questioned in any court or place outside of Parliament."

Article 105(2) is in an important sense the foundation of parliamentary freedom: without it, MPs who voted against a powerful Prime Minister could face harassment, and speeches made in Parliament would always be subject to the laws of defamation and contempt. In India, legal precedent vested Article 105(2) with a special status. In the signal 1964 case of Keshav Singh, which involved an infamous showdown between the Uttar Pradesh Assembly and the High Court, Justice B.P. Gajendragadkar laid down the principles of what is still the law. While the freedom of speech in Parliament guaranteed in Article 105(1) was subject to the discipline of other provisions of the Constitution, he held, Article 105(2) was absolute in its character, overriding all other imperatives. In this decision, he articulated consensual principles of parliamentary democracy. "Article 1, Section 6 of the United States Constitution," says lawyer and legal scholar Anupam Gupta, "provides similar guarantees, and from the 1881 case of Kilbourn v. Thompson to the 1996 case of United States v. Johnson, their Supreme Court has broadly upheld the principle."

BUT the JMM case posed a crucial problem to this proposition: could an MP facing criminal proceedings for allegedly taking a bribe to vote claim the protection granted to legitimate activities of speech and choice in Parliament? Put simply, the prosecution of the JMM and Janata Dal(A) MPs was taking place not because they had voted to save the Narasimha Rao Government, but because they had allegedly taken a bribe. This was the position of the minority of judges on the Constitution Bench, Justices S.C. Agrawal and A.S. Anand. Their dissent argues that the raison d'etre of Article 105(2) was to defend the integrity of the legislative process, and the independence of Parliament. Since bribe-giving quite clearly subverted that independence, Article 105(2) had no relevance. Nor could the taking of a bribe to vote by any reasonable construction be read as part of either legislative process or legislative act. Pointing to laws introduced elsewhere to make elected representatives accountable, the minority of judges argued that Article 105 represented a narrower view of immunity than that enshrined in the British tradition.

Justices Agrawal and Anand had presented an entirely plausible argument: Article 105(2) was not intended to protect the corrupt, and the Central Bureau of Investigation (CBI) was in any case not a Stuart monarch bent on subverting Parliament. But the majority of Justices S.P. Bharucha and S. Rajendra Babu, with a separate concurrence by Justice G.N. Ray, responded to the same concerns in a very different way. Their conclusions were a remarkable statement of the need for judicial restraint in the face of public outrage. "We are acutely conscious," Justices Bharucha and Rajendra Babu said, "of the seriousness of the offence the alleged bribe-takers have committed." "If true, they have bartered a solemn trust committed to them by those they represented. 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, impairing the guarantee to effective parliamentary participation and debate."

Put another way, the majority was unwilling to tamper with the constitutional framework of Article 105(2) for the immediate purpose of punishing a group of MPs who were allegedly corrupt. Although it could be argued that what was at issue was not the voting of the MPs but their alleged corruption, the majority evidently saw this as an unacceptable subterfuge, however legitimate its end. The consequences of any erosion of parliamentary immunity, Justices Bharucha and Rajendra Babu pointed out, would be horrific, for it would open the way for subsequent intimidation and harassment of MPs. "While imputing no such motives to the present prosecution," they pointed out, "it is not difficult to envisage... (that an MP may be) troubled by a prosecution alleging that he had been party to an agreement and conspiracy to achieve a certain result in Parliament and had been paid a bribe." Other consequences, too, could well flow from limiting Article 105 (2): in Pakistan, for example, a constitutional crisis resulted last year from a parliamentary speech being made subject to contempt of court.

THE Supreme Court's majority decision flowed from these apprehensions. All those who had cast their vote in Parliament enjoyed the protection of Article 105, the majority held, but those whose actions did not have an immediate relationship with their votes, could be prosecuted. These included not only those who gave the bribes, but also alleged bribe-taker Ajit Singh who absented himself from voting. This reasoning, however, appears to suffer from some inconsistencies. The action of giving bribes clearly had an immediate relationship with voting in Parliament. As MPs might be harassed on bribery charges for having voted in a particular way, so they might face executive wrath in the form of allegations that they had given bribes to other MPs. "The majority fell short of the logic of its own argument," suggests Narasimha Rao's counsel, P.P. Rao. Conversely, had Narasimha Rao bribed the JMM MPs not in cash, but by murdering, say, their business rivals, would the four then not have been accessories to the murder?

There are clearly no facile answers to these questions. In some important senses, the two major opinions of the Constitution Bench reflect fundamentally divergent views of what the function of the judiciary is. The position of Justices Agrawal and Anand follows the interventionist tradition set in place by Chief Justice M.N. Venkatachaliah, expanded on during Chief Justice J.S. Verma's term in office. It subordinates the text of the Constitution to its utility, interpreting and creating law to serve common sense public goals. The judgments of Justices Bharucha and Rajendra Babu, with Justice G.N. Ray, represent a more cautious jurisprudential approach, one acutely aware of the possible dangers of constitutional creativity. That this is Justice Bharucha's first leading judgment has not gone unnoticed. In line to succeed Justice Anand after he in turn replaces Chief Justice M.N. Puncchi, Bharucha's position could reflect a growing feeling that the Supreme Court needs to reconsider its recent expansionism.

ON the secondary issue of whether MPs are public servants or not, all five judges were in agreement. The Constitution Bench has now ended the debate on whether MPs are covered by the Prevention of Corruption Act, by holding that they can indeed be prosecuted under its provisions. This brings the status of MPs in line with that of MLAs. MPs and MLAs, Justices Bharucha and Rajendra Babu said, performed the duty of making laws, and it was "difficult to conceive of a duty more public than this." The Prevention of Corruption Act, however, mandates that sanction for the prosecution be obtained from an appointing authority, and in the case of MPs there is no clearly defined appointing authority. Justices Agrawal and Anand, with the concurrence of Justice Ray, held that courts could take cognisance of MPs' offences with sanction, but held that until appropriate laws were enacted, prosecuting agencies would have to obtain sanction from the Chairperson of the Rajya Sabha or the Speaker of the Lok Sabha. Justices Bharucha and Rajendra Babu expressed the hope that "Parliament would address itself to the task of removing this lacuna with due expedition."

THE most immediate impact of the Supreme Court judgment will be on the trial of Narasimha Rao and his Cabinet colleagues. Contrary to some speculation, the charges of criminal conspiracy against them will not automatically lapse as a result of the collapse of the cases against those they were supposed to have bribed. Although the principal object of their conspiracy, the bribing of the JMM MPs, cannot be prosecuted, Section 120B of the Indian Penal Code makes the very fact that a conspiracy was entered into, successful or otherwise, an offence. The charges under the Prevention of Corruption Act, similarly, will stand. However, Mahato is unlikely to continue to act as an approver in the case, and other evidence too could prove hard to come by. "It certainly makes my job as a lawyer easier," says P.P. Rao. "Legally, it was my job to do the best I could for Narasimha Rao, and I think now we can go before the trial court with much greater confidence than before."

In the longer run, the Supreme Court order holds out valuable lessons for those committed to engaging with corruption in India's political life. "What the court has essentially said," says P.P. Rao, "is that Parliament will have to deal with these problems, it cannot do so." With the Supreme Court perhaps approaching the limits of its expansionist phase, and preparing to withdraw into a more defensive, narrow mould, public mass action will be crucial. At least some of the applause for the court's anti-corruption campaign came from middle-class audiences, delighted with the emergence of a neat, sanitised medium for bringing about political transformation. To many, changing politics through politics seemed too much like hard work: but now, it is evident, there is no other choice.