1998(2) Crimes 124 (SC)
Supreme Court of India
(From Delhi High Court)
S.C. Aggarwal, G.N. Ray, A.S. Anand, S.P. Bharucha & S. Rajendra Babu, JJ.
P.V. Narasimha Rao - Appellant
versus
State (CBI/SPE) - Respondent
Criminal Appeal Nos. 1207-1208 of 1997
With
Crl. A.Nos. 1209/97, 1210-1212/97, 1213/97, 1214/97, 1215/97, 1216/97, 1217-18/97, 1219/97, 1220/97, 1221/97, 1222/97, 186/98 and 187/98
Decided on 17-4-1998
Counsel for the Parties :
For Shri P.V. Narasimha Rao (Appellant) : Mr. P.P. Rao, Sr. Advocate.
For Satish Sharma (Appellant) : Mr. D.D. Thakur, Sr. Advocate.
For Bhajan Lal (Appellant) : Mr. Kapil Sibbal, Advocate.
For some of J.D., A.S. M.Ps. : Dr. Suraj Singh, Advocate.
For the Respondent : Attorney General of India.

Very Important Points
1. Those Members of Parliament who had allegedly taken bribe to support the then Prime Minister Shri P.V. Narasimha Rao's government in the no-confidence motion, five years ago, cannot be prosecuted as they enjoy constitutional immunity under Article 105 of the Constitution. But the bribe-givers will have to face trial (three : two vide verdict).
2. A Member of Parliament is a public servant under Section 2(c) of the Prevention of Corruption Act, 1988.
3. Since there is no authority competent to remove a MP and to grant sanction for his prosecution under Section 19(1) of P.C. Act, 1988, the Court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in this regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 13 and 15 of P.C. Act, 1988 against a MP in a Criminal Court, shall obtain the per­mission of Chairman of Rajya Sabha or Speaker of the Lok Sabha, as the case may be.
Comments about possible developments of this ruling in future :
1. Former JMM MPs’ can claim the tainted money in this JMM bribery case.
2. Protection provided to MPs and MLAs as “bribe takers” in JMM bribery case may be misused.

Headnote:(i) Constitution of India 1950 - Article 105 - Powers and Privileges of Members of Parliament - Whether a Member of Par­liament enjoys immunity under Article 105(2) or 105(3) of the Constitution from be­ing prosecuted before a Criminal Court for an offence involving offer or acceptance of bribe for the purpose of speaking or giving his vote in Parliament or in any committee thereof? (Yes, ‘bribe takers’ enjoy the immunity but ‘bribe givers’ do not enjoy such immunity) by three (Bharucha, Rajendra Babu and Ray, JJ.) : two (Aggarwal and Anand, JJ.) verdict - Effect - Charges of corruption against the ‘bribe takers’ quashed by Majority as they were protected by Art. 105(2) of the Constitution - But charges of conspiracy and agreement against ‘bribe givers’ e.g. against Sh. P.V. Narasimha Rao and Sh. Buta Singh and others in JMM case would be tried by Criminal Court - Case Law discussed (IPC Section 120B r/w Section 13(1)(d) of P.C. Act, 1988, P.C. Act, 1988 - Sections 7, 12, 13(2) - IPC Section 193).

       Per Bharucha and S. Rajendra Babu, JJ.

       Held : Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament. The charge against the alleged bribe takers is that they “were party to a criminal conspiracy and agreed to or entered into an agreement with” the alleged bribe givers “to defeat the no-confidence motion.....by illegal means, viz., to obtain or agree to obtain grati­fication other than legal remunerations” from the alleged bribe givers “as a motive or reward for defeating the no-confidence motion and in pursuance thereof “the alleged bribe givers “passed on several lacs of rupees” to the alleged bribe takers, “which amounts were accepted” by them. The stated object of the alleged conspiracy and agreement is to defeat the no-confidence motion and the alleged bribe takers are said to have received monies “as a motive or reward for defeating” it. The nexus between the al­leged conspiracy and bribe and the no-confidence motion is explicit. The charge is that the alleged bribe takers received the bribes to secure the defeat of the no-confidence motion. While it is true that the charge against them does not refer to the votes that the alleged bribe takers, Ajit Singh excluded, actually cast against the no-confidence motion and that it may be established de hors those votes, as the Attorney General argued, we do not think that we can ignore the fact that the votes were cast and, if the facts alleged against the bribe takers are true, that they were cast pursu­ant to the alleged conspiracy and agreement. It must then follow, given that the expression “in respect of” must receive a broad mean­ing, that the alleged conspiracy and agreement had a nexus to and were in respect of those votes and that the proposed inquiry in the crimi­nal proceedings is in regard to the motivation thereof. It is difficult to agree with the learned Attorney General that, though the words “in respect of” must receive a broad meaning, the protection under Article 105(2) is limited to court proceedings that impugn the speech that is given or the vote that is cast or arise thereout or that the object of the protection would be fully satisfied thereby. The object of the protection is to enable members to speak their mind in Parliament and vote in the same way, freed of the fear of being made answerable on that account in a court of law. It is not enough that members should be protected against civil action and criminal proceedings, the cause of action of which is their speech or their vote. To enable members to participate fearlessly in Parliamen­tary debates, members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is for that reason that a member is not “liable to any proceedings in any court in respect of anything said or any vote given by him”. Article 105(2) does not say, which it would have if the learned Attorney General were right, that a member is not liable for what he has said or how he has voted. While imputing no such motive to the present prosecution, it is not difficult to envisage a member who has made a speech or cast a vote that is not to the liking of the powers that be being 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. We are acutely conscious of the seriousness of the offence that the alleged bribe taker 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, imparing the guarantee to effective Parliamentary participation and debate. We draw support for the view that we take from the decision of United States Supreme Court in Johnson and from the dissenting judgment of Brennan, J. in Brewster. (Paras 33 to 38)

       Held consequently : 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). (Para 43)

       But held : What is the effect of this upon the alleged bribe givers? In the first place, the prosecution against Ajit Singh would proceed, he not having voted on the no-confidence motion and, therefore, not having the protection of Article 105(2). The charge against the alleged bribe givers of conspiracy and agreement with Ajit Singh to do an unlawful act would, therefore, proceed. 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 a 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. Mr. Rao contended that for the offence that the bribe takers had allegedly committed they would be answerable to the Lok-Sabha. There was a possibility of the Lok Sabha deciding one way upon the prosecu­tion before it of the alleged bribe takers and the criminal court deciding the other way upon the prosecution of the alleged bribe givers. A conflict of decisions upon the same set of facts being possible, it had to be avoided. The charge against the alleged bribe givers had, therefore, to be quashed. There is in the contention a misconception. Article 105(2) does not state that the member of Par­liament who is not liable to civil or criminal proceedings in a court of law is liable to the same civil or criminal proceedings in Parlia­ment, Parliament in India is not a Court of Record. It may not exercise judicial powers or entertain judicial proceedings. The decisions of this Court so holding have already been referred to. The alleged bribe takers, except Ajit Singh, who are entitled to the immunity conferred by Article 105(2) are not liable to be tried in the Lok Sabha for the offences set out in the charges against them or any other charges, but the Lok Sabha may proceed against them for breach of privileges or contempt. There is, there­fore, no question of two fora coming to different conclusions in respect of the same charges. Mr. Rao submitted that the alleged bribe givers had breached Parlia­ment’s privilege and been guilty of its contempt and it should be left to Parliament to deal with them. By the same sets of acts the alleged bribe takers and the alleged bribe givers committed offences under the criminal law and breaches of Parliament’s privileges and its contempt. From prosecution for the former, the alleged bribe takers, Ajit Singh excluded, enjoy immunity. The alleged bribe givers do not. The crimi­nal prosecution against the alleged bribe givers must, therefore, go ahead. For breach of Parliament’s privileges and its contempt, Parlia­ment may proceed against the alleged bribe takers and the alleged bribe givers. (Paras 44 to 47)

       However held : The provisions of Article 105(3) are, therefore, not attracted and they do not render assistance to the alleged bribe givers. (Para 53)

       Held in conclusion : We now set down the effect upon the accused of our findings. 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 Singh 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). D.K. Adikeshavulu and M. Thimmogowda (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 N.M. Ravanna (accused Nos. 7 and 9) were not public servants. The question of sanction for their prosecution, does not, therefore, arise and the trial on all charges against them must proceed. 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. Ajit Singh (accused No. 15) was a public servant, being a 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 Sections 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. (Paras 83 to 88)

       Per Aggarwal and Anand, JJ.

       Held : On a consideration of the submissions urged by the learned coun­sel we arrive at the conclusion that on the basis of provisions con­tained in clauses (2) and (3) of Article 105, the appellants cannot claim immunity from prosecution on the charges that have been levelled against them. (Para 140)

       A Member of Parliament does not enjoy immunity under Article 105(2) or under Article 105(3) of the Constitution from being prose­cuted before a criminal court for an offence involving offer or ac­ceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof. (Para 181)

       Per Ray, J.

        I have not been able to persuade myself to concur with the reasonings and the finding in the judgment of Mr. Justice Agrawal that a member of Parliament does not enjoy immunity under Article 105(2) or 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or giving his vote in Parliament or in any committee thereof. (Para 182)

       As I respectfully agree with the reasonings indicated in the judgment of the learned brother Mr. Justice S.P. Bharucha that in the facts of the case, protection under Article 105(3) of the Constitution is not attracted but protection under sub-article (2) of Article 105 is available only to those accused, who as Members of Parliament had cast their votes in Parliament, I refrain from indicating separate reasonings in support of such finding. (Para 184)

       (ii) Prevention of Corruption Act, 1988 - Section 2(c) - Defi­ni­tion of Public Servant - Whether a Member of Parliament is a Public Servant under Section 2(c) of P.C. Act, 1988? (Yes).

       Per Bachawat, J.

       Held : We think that the view of the Orissa High Court that a member of a Legislative Assembly is a public servant is correct. Judged by the test enunciated by Lord Atkin in McMillan v. Guest2 8 and adopted by Sikri, J. in Kanta Kauthria case2 9, the position of a member of Parlia­ment, or of a Legislative Assembly, is subsisting, permanent and substantive; it has an existence independent of the person who fills it and it is filled in succession by successive holders. The seat of each constituency is permanent and substantive. It is filled, ordi­narily for the duration of the legislative term, by the successful candidate in the election for the constituency. When the legislative term is over, the seat is filled by the successful candidate at the next election. There is, therefore, no doubt in our minds that a member of Parliament, or of a Legislative Assembly, holds an office and that he is required and authorised thereby to carry out a public duty. In a word, a member of Parliament, or of a Legislative Assembly, is a public servant for the purposes of the said Act. (Para 65)

       Per Aggarwal, J.

       We are, therefore, of the view that a Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. A Member of Parliament would, therefore, fall within the ambit of sub-clause (viii) of clause (c) of Section 2 of the 1988 Act. (Para 156)

       Having considered the submissions of the learned counsel on the meaning of the expression ‘public servant’ in contained Section 2(c) of the 1988 Act, we are of the view that a Member of Parliament is a public servant for the purpose of the 1988 Act. (Para 168)

       (iii) Prevention of Corruption Act, 1988 - Sections 19(1) and 7, 10, 11, 12 and 15 - Previous sanction for offences under, for prosecution of a Member of Parliament.

       Per Bachawat, J.

       Held : We have, as aforestated, reached the conclusion that members of Par­liament and the State legislatures are public servants liable to be prosecuted for offences under the said Act but that they cannot be prosecuted for offences under Sections 7, 10, 11 and 13 thereof be­cause of want of an authority competent to grant sanction thereto. We entertain the hope that Parliament will address itself to the task of removing this lacuna with due expedition. (Para 82)

       Per Ray, J.

       Held : Since there is no authority competent to grant sanction for the prosecution of a Member of Parliament under Section 19(1) of P.C. Act, 1988, the Court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but before filing charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 12 and 15 of 1988 Act against a MP in a criminal court, the prosecuting agency shall obtain the permission of the chairman of Rajya Sabha/Speaker of the Lok Sabha as the case may be.

       Per Aggarwal J.

       Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a Member of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha/ Speaker of the Lok Sabha, as the case may be. (Para 181)

       Result : Order accordingly by Majority of 3 : 2.