I.

Introduction

The facts involved in the Constitution Bench decision in P.V. Narasimha Rao v.
State   (JMM bribery case) are that in 1991 election to the Lok Sabha, Congress (I)
[1]

Party remained fourteen members short of the majority and it formed a minority
Government with P.V. Narasimha Rao as the Prime Minister. The said
Government had to face a motion of no-confidence on 28-7-1993 and it somehow
managed to defeat the motion by mustering the support of 265 members as against
251. One Ravinder Kumar of the Rashtriya Mukti Morcha filed a complaint (FIR)
with the "CBI" alleging that a criminal conspiracy was hatched pursuant to which
certain members of Parliament belonging to Jharkhand Mukti Morcha and certain
others owing allegiance to Janta Dal (Ajit Singh Group) agreed to and did receive
bribes from P.V. Narasimha Rao and others to give votes with a view to defeat the
no-confidence motion. A criminal prosecution was launched against the bribe-
giving and bribe-taking Members of Parliament under the Prevention of Corruption
Act, 1988 and under Section 120-B of the Indian Penal Code. The Special Judge
took cognisance of the offences of bribery and criminal conspiracy. The persons
sought to be charged filed petitions at the High Court for quashing the criminal
proceedings. The High Court at Delhi dismissed the petitions. On presentation of
appeals by way of special leave and upon reference of the case to a Constitution
Bench, the Court formulated for decision these questions:

(i) Does Article 105 of the Constitution confer any immunity on a Member of
Parliament from being prosecuted in a criminal court for an offence involving offer
or acceptance of a bribe?

(ii) Is a Member of Parliament excluded from the ambit of the 1988 Act for the
reason that:

(a) he is not a person who can be regarded as "public servant" as defined

under Section 2(c) of the 1988 Act, and
(b) he is not a person comprehended in clauses (a), (b) and (c) of sub-
section (1) of Section 19 and there is no authority to grant sanction for his
prosecution under the 1988 Act?

The Constitution Bench by a majority of three to two answered the first question in
the affirmative, except in the case of A-15 Ajit Singh (who, unlike the other co-
accused did not cast his vote on the no-confidence motion), holding that the bribe-
taking Members of Parliament who voted on the no-confidence motion are entitled
to immunity from criminal prosecution for the offences of bribery and criminal
conspiracy conferred on them by Article 105(2) of the Constitution. The Court in
answer to the second question, ruled that a Member of Parliament is a "public
servant" within Section 2(c) of the 1988 Act. It also concluded that since there is
no authority to grant sanction for prosecution of the offending persons for certain
offences, they cannot be tried under the Prevention of Corruption Act, 1988 for
such offences.
The answer given by the majority to the first question seems to have no support of
precedents, theory and practice as discussed below.
II. Article 105(2) confers no immunity on a Member of Parliament involved in a case of bribery

The provisions of Article 105(2) of the Constitution confer immunity on a Member

of Parliament from criminal prosecution only in respect of the "freedom of speech"
and the "right to give vote" by him in Parliament or any committee thereof  . The [2]

immunity or protection is available only in regard to these parliamentary or official

activities. Such immunity is not available for any acts done in his private or
personal capacity. The conduct of a Member of Parliament involving the
commission of offences of bribery and criminal conspiracy having been done in
personal capacity cannot, on any reasoning, be held to be acts done in the discharge
or purported discharge of his parliamentary or official duty in Parliament. Taking
of bribe is obviously a criminal act.

In initiating criminal prosecution of a public servant under the cover of immunity,

certain principles have emerged around Section 197 CrPC. In a case of bribery
punishable under Section 161 of the Indian Penal Code in Gill v. King   the Privy
[3]

Council approving the statement of law by Vardachariar, J. in the Federal Court

decision in Hori Ram Singh (Dr) v. Emperor   observed:
[4]

"A public servant can only be said to act or purport to act in the discharge of his
official duty if his act is such as to lie within the scope of his official duty. Thus, a
Judge neither acts nor purports to act as a Judge in receiving bribe, the judgment he
delivers may be such an act, nor does a Government Medical Officer act or purport
to act as a public servant in picking the pocket of a patient whom he is examining,
though the examination itself may be such an act. The test may well be, that when
a public servant is challenged, he can reasonably claim that what he does, he does
in virtue of his office."

A Constitution Bench in Satwant Singh v. State of Punjab   agreeing with another

[5]

Constitution Bench decision in Matajog Dobey v. H.C. Bhari   and in Amrik Singh
[6]

v. State of Pepsu   observed:

[7]

"It appears to us to be clear that some offences by their very nature cannot be
regarded as having been committed by public servants, while acting or purporting
to act in the discharge of their official duty. For instance, acceptance of a bribe is
one of them and an offence of cheating and abetment thereof is another ... such
offences have no necessary nexus between them and the performance of the duties
of a public servant: 'The official status furnishing only the occasion or opportunity
for the commission of such offences  .' " (emphasis supplied)
[8]
The majority in the JMM bribery case thus does not have the support of precedents
for holding that the bribe-taking Members of Parliament in receiving a bribe had
acted in the discharge of their parliamentary or official duty.
III. Article 105(2) gives MPs immunity for cast vote bona fide

The phraseology of clause (2) of Article 105 makes a Member of Parliament

immune from any liability that may arise from any court proceedings in respect of
"anything said", that is, "any speech made" or "any vote given" by him in
Parliament or any committee thereof. The expression "any vote given" in clause (2)
with which alone we are concerned in the JMM bribery case can, in the ordinary
grammatical sense, only mean casting of vote by a Member acting independently,
on merits, in a legitimate and bona fide manner expected of a public servant of his
rank  , unaffected by any undue influence. The giving of vote under the
[9]

inducement of a bribe as opposed to acting independently and on merits cannot, on

any principle of interpretation, be read into clause (2) for such a legislator by
taking a bribe himself loses the protective shield of the provision.
IV. Immunity available only for acts inside Parliament or a committee

The immunity under clause (2) of Article 105 from criminal prosecution is
available to a Member of Parliament only from any liability arising out of
"anything said" or "any vote given" inside Parliament or in any committee thereof.
The clause therefore has absolutely no application to any act of a Member
constituting an offence of bribery outside Parliament as to bar his liability for
criminal prosecution. The Constitution Bench in Tej Kiran Jain v. N. Sanjiva
Reddy   interpreting the expression "in Parliament" appearing in clause (2) of
[10]

Article 105 as "during the sitting of Parliament" and "in the course of the business
of Parliament", lends support.

Besides, the Constitution Bench in Jatish Chandra Ghosh (Dr) v. Hari Sadhan
Mukherjee   has held that the immunity available to a speech made by a Member
[11]

inside the legislative chamber of an Assembly under clause (2) of Article 194
[equivalent of Article 105(21)] shall not be available in regard to the same speech
when it was got published by a legislator "outside" the four walls of the Legislative
Assembly in a local journal.

It, therefore, follows that the majority in the case under comment could not have
extended the immunity to acts of bribery and criminal conspiracy committed by the
bribe-giving and bribe-taking Members of Parliament "outside" Parliament by
creating an illusory "nexus" with the subsequent act of casting votes by bribe-
taking Members inside Parliament subsequently.
V. Outside conduct of Members of Parliament itself constituted the completed offence of
bribery
The facts of the JMM bribery case disclose that the conduct of the Members of
Parliament without the four walls of the House itself alone constituted the
completed offences of bribery and conspiracy as per the definition of these
offences under the Prevention of Corruption Act, 1988 and the Penal Code and the
same were legally capable of proof dehors the act of casting votes subsequently on
the no-confidence motion by the bribe-taking Members in Parliament. The
submission cannot be better supported than by making a reference to the finding of
the majority itself in the appeal of A-15 Ajit Singh, who has been ordered to stand
trial for bribery and conspiracy only on the basis of his conduct outside the four
walls of the Lok Sabha, because unlike the other co-accused, he had not given his
vote on the no-confidence motion.

Under the Prevention of Corruption Act, if a bribe is given or taken by a public

servant (Member of Parliament) to use his position dishonestly, that is, to favour
the briber as opposed to dealing with the matter before him independently on
merits, the crime of bribery is complete. Explanation (d) to Section 7 of the
Prevention of Corruption Act, which says "a person who receives gratification as a
motive or reward for doing what he does not intend to do or is not in a position to
do or, has not done", shows that the non-proof of these subsequent acts would not
render the offence of bribery incomplete. This provision also establishes the
unessential nature of the nexus or connection if any, between the criminal act
outside and the act of casting vote inside Parliament. Besides, any prior assurance
of giving a favourable vote inside Parliament is neither an ingredient of the crime
nor a "material fact" in a pleading necessary to complete the picture of the "cause
of action" to prove the crime of bribery in a criminal court. Therefore, the finding
of the majority that the crime "is in respect of" the vote cast on the no-confidence
motion and a proof of the goings-on in Parliament is necessary at the trial, has no
basis to stand upon.
VI. The true scope of Article 105(2)

The court proceedings that fall within the ambit of clause (2) of Article 105 can be
only those which "arise out of" and are subsequent to "anything said" or "any vote
given" in Parliament or any committee thereof and not those which arose from
outside antecedent conduct of the Members of Parliament.

The criminal liability that has arisen in the JMM bribery case, is in relation to the
conduct of the Members of Parliament that "preceded" the "giving of votes" by
them on the no-confidence motion, which could not be held by the majority to have
arisen from the subsequent act of casting votes. In fact the said liability in the
context of the Prevention of Corruption Act can be said to have arisen
independently of the votes cast.

Besides, the subject-matter of the case, the nature of the proceedings and the kind
of the court which is dealing with it shows that it is a criminal proceeding
involving an offence of bribery which will result either in the acquittal or
conviction and sentence of the bribe-taking Members of Parliament. Had it been a
proceeding "in respect of" votes that were cast then it would have been a civil
proceeding impeaching the validity of the votes cast on the no-confidence motion.
An instance of a civil proceeding "in respect of" votes given is available in the U.S.
Supreme Court decision in Kilbourn v. Thompson  . In that case, one Hallet
[12]

Kilbourn had filed an action in trespass for false imprisonment against the
Members of House of Representatives, who had voted on a resolution by which
Kilbourn was punished by imprisonment for the contempt of the House. The action
was held as not maintainable.

The other illustration of a court proceeding that may fall within the scope of clause
(2) of Article 105 is the one in the Constitution Bench decision in T.K. Jain v.
Sanjiva Reddy  already noticed. Some persons who held the Sankaracharya in high
[10]

esteem had in that case filed a suit for damages for defamatory statements made by
certain Members of Parliament inside the Chamber of Parliament. Another
example in relation to clause (2) of Article 194 is also available in the Constitution
Bench decision in Dr Jatish Chandra Ghosh v. Hari Sadhan Mukherjee  already
[11]

noticed.

It is noteworthy that clause (2) of Article 105 is, in terms, limited to only those
proceedings that impugn "anything said", that is, "any speech made" and "any vote
given" in Parliament or any committee thereof. Thus, the findings in the JMM
bribery case that the criminal court proceedings were "in respect of" the "votes
given" which conferred the immunity on Members of Parliament seems incorrect.
Besides, if the Constituent Assembly had intended to confer absolute immunity
under clause (2) in respect of the liability that may arise from any criminal
proceedings then it would have been on the pattern of clauses (2) and (3) of Article
361   in respect of the President of India and Governors of States.
[13]

VII. Object of conferring immunity on Members of Parliament

The object of the immunity conferred on Members of Parliament under Article

105(2) is to ensure the independence of the Members which is essential for healthy
functioning of the system of parliamentary democracy; "democracy" being one of
the fundamental or basic features of the Constitution. Clauses (1) and (2) of Article
105 are interlinked. While clause (1) secures to the Members "freedom of speech",
clause (2) safeguards that freedom and also protects the right of "giving of vote"
freely in Parliament or any committee thereof by conferring immunity from any
liability that may arise from any court proceedings in respect of "anything said" or
"any vote given". However, the minority in JMM bribery case basing itself on the
Constitution Bench decision in the Sub-Committee on Judicial Accountability v.
Union of India   has observed that:
[14]
"An interpretation of the provisions of Article 105(2), which would enable a
Member of Parliament to claim immunity from prosecution for an offence of
bribery in connection with anything said or vote given by him in Parliament and
thereby placing such Members above the law, would not only be repugnant to the
healthy functioning of parliamentary democracy, but also will be subversive of the
"rule of law", which is also an essential part of the basic structure of the
Constitution".

It is interesting to note that the law on the point is the same in the U.S.A. Chief
Justice Burger in U.S. v. Brewster  observed:
[8]

"The Speech and Debate Clause has to be read broadly to effectuate its purpose of
protecting the independence of the legislative branch. But its purpose was not to
make members 'super-citizens' immune from criminal liability. The purpose of the
clause was to protect the individual member not simply for his own sake, but to
preserve the legislative integrity of the legislative process, but the shield does not
extend beyond what is necessary to preserve the integrity of the legislative process.
Financial abuses by way of bribes, perhaps even more than 'executive power",
would grossly undermine legislative integrity and defeat the right of the public to
honest representation."

Lord Salmon who chaired in 1976 the Royal Commission "On Standards of
Conduct in Public Life", spoke in the House of Lords in respect of Article 9 of the
Bill of Rights, 1688 thus:

"Now this is a charter for freedom of speech in the House, it is not a charter for
corruption...."
VIII. Criminal liability and privileges and immunities of Members of Parliament in Anglo-
American countries

In England, the House of Commons in conference with the Lords laid down a
broad principle in regard to parliamentary privilege in 1641  : [15]

"Privilege of Parliament is granted in regard of the service of the Commonwealth

and is not to be used to the danger of the Commonwealth."

During the rule of Tudor and Stuart Kings, the Commons had to wage a bitter
struggle to assert their supremacy, which culminated in the grant of the "Bill of
Rights" in 1688; under Article 9 thereof a right was secured that: "Freedom of
speech or debate or proceedings in Parliament ought not be impeached in any court
or place out of Parliament."

The House of Commons on 2-5-1695 passed a resolution whereby it was resolved

that:
"The offer of money or other advantage to any Member of Parliament for
promoting any matter whatsoever pending or to be transacted in Parliament is a
high crime and misdemeanour and tends to the subversion of the English
Constitution."

Halsbury's Laws of England   states the law as under:

[16]

"37. Members of Parliament.-Except in relation to anything that is said in debate, a

Member of the House of Lords or of the House of Commons, is subject to the
ordinary course of criminal justice; the privilege of Parliament does not apply to
criminal matters."

Bribery of Members of Parliament according to May's Parliamentary Practice is

treated as a breach of privilege and contempt of Parliament  . According to most of
[17]

the writers on English Law, bribery of Members of Parliament though not a

statutory offence yet it is an offence at the Common Law  . [18]

In Australia, as is evident from R. v. White   as far back as in 1875,

[19]

notwithstanding the operation of Article 9 of the Bill of Rights, 1688, the Supreme
Court of New South Wales held that an attempt to bribe a Member in order to
influence his vote was a criminal offence at Common Law. The decision was
approved by the highest court of that country in R. v. Boston  . Besides, Section
[20]

73-A of the Australian Crimes Act, 1914 makes it an offence for Members of the
Australian Parliament to accept or be offered a bribe.

In Canada, Section 108 of the Canadian Criminal Code renders bribery of a

Federal Member a criminal offence. In R. v. Bunting   Wilson, C.J. held that
[21]

bribing Members of the Legislature to vote out the incumbent Government was an
indictable offence of bribery at Common Law and the court and not the legislature
has jurisdiction to try the said offence.

In the U.S.A., Article 1(6) of the U.S. Constitution which contains the "Speech or
Debate Clause", provides that: "For any speech or debate in either House they
(Members of the Congress) shall not be questioned in any other place."

In 1863, the Congress by statute declared a Member liable to indictment for a high
crime and misdemeanour for accepting compensation intended to influence a vote
or decision. In 1862, the Congress by another statute penalised legislators for
receiving money for votes or influence in any matter pending before the Congress.
In 1864, "Conflict of Interest Statutes" barred Congressmen from receiving
compensation for their services before any agency. The Speech and Debate Clause
does not give any protection in respect of "that act which is in no sense related to
the due functioning of the legislative powers".
In United States v. Johnson   the Speech and Debate Clause was interpreted so as
[22]

to disallow the motive for performing legislative acts from being inquired into
during criminal prosecutions. In United States v. Brewster   it was held that the
[23]

taking of a bribe, given for the purpose of influencing one's official conduct, is not
protected from criminal prosecution.

After examining the anti-corruption measures in the various Commonwealth

countries, Gerard Carney has concluded  : [24]

"Most countries treat corruption and bribery of Members of Parliament as a

criminal offence rather than a breach of privilege."
IX. Members of Parliament have no privilege or immunity under Article 105 regarding offences
against the King or State

Article 105 confers no privilege or immunity from criminal prosecution for

offences against the King or State. There is no doubt the expressions "any
proceedings" and "in any court" appearing in clause (2) of Article 105 impliedly or
indirectly do include criminal proceedings and criminal courts. But as will be
shown below, such criminal proceedings can be those which relate to criminal
liability, arising from "private" libel, slander or defamation in Parliament as
distinguished from criminal prosecution for "public offences" that is, offences
against the King or the State.

The Constitution of India nowhere provides for direct or express immunity for
Members from the liability that may arise from any or all criminal proceedings as
has been done under clauses (2) and (3) of Article 361   in the case of the
[25]

President and the Governors of the States.

Besides, it is also sufficiently clear that there is no provision in the "criminal laws"
under which anything relating to "anything said" or "any vote given" in Parliament
or in any committee thereof have been constituted criminal offences against the
State, as has been done with regard to the casting of votes by Members of
Parliament at the election of the President of India, on inducement caused by
illegal gratification, an offence punishable under Chapter IX-A of the Indian Penal
Code.

Clause (3) of Article 105 deals with the powers, privileges and immunities of
Parliament and of its Members in other respects than those in clauses (1) and (2) of
that article. It, therefore, appears necessary to investigate whether any privilege or
immunity has been provided for under clause (3) having a bearing on the question
under examination.

The seven-Judge Bench in Special Reference No. 1 of 1964 better known as the
Legislative Privileges case  , after enumerating the main privileges and immunities
[26]

of the Members of the House of Commons, identified the privilege of such

Members of Parliament in regard to the privilege of "freedom from arrest and
molestation" which appears to have a connection with the administration of
criminal justice, as will be noticed infra.

The history of the said privilege appears in the Report of the Committee of
Privileges of the House of Commons   which dealt with the case of preventive
[27]

detention of Captain Ramsay under the Emergency (Defence) Regulation of 1939.

The privilege of "freedom from arrest" operated differently in "civil proceedings"

and in "criminal proceedings", (the latter included preventive detention under
emergency legislation). The Committee examined the basis of the privileges and
the reason for the distinction between arrest in a civil suit and arrest on a criminal
charge. The Committee found that the privilege of freedom from arrest originated
at a time when English Law made free use of imprisonment in civil proceedings as
a method of coercing debtors to pay their debts and in order to enable Members of
Parliament to discharge their functions effectively, it was thought necessary to
grant them immunity from such arrest, because they were doing the King's
business and should not be hindered in carrying out their business by arrest at the
suit of another subject of the King. Criminal arrests, however, were for offences
against the King and the privilege had no application to criminal arrests. (emphasis
supplied)

In view of this history, Erskine May, on the basis of Captain Ramsay case,
recorded this statement of the law  .
[28]

"The privilege of freedom from arrest is limited to civil causes and has not been
allowed to interfere with the administration of criminal justice or emergency
legislation."

This legal position being applicable under clause (3) of Article 105 to the Members
of Indian Parliament, the precedent of Captain Ramsay was made the basis by the
Committee of Privileges of the Lok Sabha, for its decision regarding V.G.
Despande, a Member of the Lok Sabha, when he was detained in 1952 under the
Preventive Detention Act, 1950. The Constitution Bench in Nambiar case   also
[29]

followed the precedent of the House of Commons in Captain Ramsay case.

In Nambiar case   the Constitution Bench besides approving the two Madras High
[30]

Court decisions   and one of the Calcutta High Court in Ansumali Majmudar v.
[31]

State   made a noteworthy observation:

[32]

"We ought to add that in all these cases the learned Judges took notice of the fact
that freedom from criminal arrest was not treated as constituting a privilege of the
Members of the House of Commons in England."
This observation of the Constitution Bench determines the scope of clause (3) of
Article 105 and that of Article 194(3) of the Constitution. It is for this reason the
provisions of Section 135-A of the Code of Civil Procedure, 1908 limit the
privilege of "freedom from arrest" of the Members of Parliament and of the
Legislatures of the States only to "civil causes" and no such provision has been
enacted in the criminal law or procedure in India.

Besides, it is noteworthy here that in the JMM bribery case, all the five Hon'ble
Judges have together returned a finding in reply to the second question that the
Members of Parliament, in view of the enlarged scope of the new Prevention of
Corruption Act, 1988, are public servants under Section 2(c) of the said Act. It also
shows that the Prevention of Corruption Act and Section 135-A of the Civil
Procedure Code amount to the law which defines the powers, privileges and
immunities of the aforesaid Members of the legislative bodies under clause (3) of
Article 105 and Article 194(3) of the Constitution. Therefore, it follows from the
true meaning of clause (3) of Article 105, explained above, that the majority in the
JMM bribery case has, it is submitted with respect, incorrectly read the privilege or
immunity in clause (2) of Article 105, which did not exist therein. Thus, the
executive authorities are entitled to investigate and prosecute the bribe-taking
along with the bribe-giving Members of Parliament and the judiciary (Special
Judge) has jurisdiction to try them without any legal hurdle whatsoever.
X. Conclusion

Article 105(2) confers immunity on Members of Parliament when they discharge

or purport to discharge their parliamentary or official duty of "making of speech"
or "giving of votes" in Parliament or any committee thereof. The act of receiving a
bribe by a Member is not in pursuance of his parliamentary or official duty
aforesaid; the official status of a Member of Parliament merely furnished the
occasion or opportunity for the commission of an offence of bribery and bribe-
taking Members in the case under comment are not entitled to immunity from
criminal prosecution.

The immunity under clause (2) of Article 105 becomes available to a Member
when he "makes a speech" or "gives his vote" in the parliamentary proceedings
inside one of the Chambers of Parliament or in any committee thereof. Since the
acts involving conspiracy and acceptance of bribe were wholly done by the
accused outside the four walls of the legislative Chamber, it did not attract the
immunity provision so as to protect them from criminal prosecution. Besides, these
criminal acts themselves constitute completed crimes without reference to any
goings on in Parliament and are capable of proof before the Special Judge
independently of any proof or disproof of casting of vote by a Member in
Parliament. Therefore, such offences could not be deemed to be acts "in respect of"
the act of "giving of vote" inside Parliament.
Article 105(2) may give immunity from liability arising out of private criminal
offences involving defamation, libel or slander but confers no immunity from
criminal prosecution for "public offences", that is, offences against the King or
State. Obviously, no King or State can be expected to confer such immunity which
in all probabilities will lead to the destruction of the kingdom or State. This
position is also evident from the non-applicability of the privilege of "freedom
from arrest" of the Members of the House of Commons in England to criminal
matters, which also remains the legal position under clause (3) of Article 105, its
application being "limited to civil causes".

An interpretation of clause (2), which would enable a Member to claim immunity

from prosecution for an offence of bribery, a selfish, vile and depraved act, would
not only be repugnant to the healthy development of democratic institutions
provided for in the Constitution, but would be subversive of the Constitution itself.
The majority in the case under comment was not at all expected to give a
construction of the Constitution involving such dire consequences.

The Constitution is an organic document and the court should have looked at the
functioning of the Constitution as a whole. The Constitution in order to maintain
the highest standard of probity in public life and to keep parliamentary life
unsullied, has provided detailed qualifications and disqualifications for being
chosen or being Member of Parliament, including taking an oath of allegiance to
the Constitution and excluding persons from the election, convicted of crimes or
disqualified for committing corrupt practices at an election or dismissed from
public service for corruption and disloyalty or persons holding office of profit
under the Government, or defecting from one political party to another. Even an
independent member is made to lose his seat for joining a political party. In Braj
Raj Singh Tiwari, Re   and others in the very first case of incurring
[33]

disqualification in 1952 before the Chief Election Commission, no fewer than

twelve members of the Vindhya Pradesh Legislative Assembly lost their seats
under Articles 191-192 merely for the receipt of rupees five for every meeting of
the District Advisory Committees for not being able to prove "out-of-pocket
expenses" equivalent to the compensatory amount paid.

When the Constituent Assembly did not consider it necessary even in the interest
of an independence judiciary to afford some protection to the Hon'ble Judges of the
Supreme Court and of the High Courts, even though the High Court Judges at one
time had enjoyed such protection under the provisions of 13 Geo. III, Chapter 63,
Sections 17 and 39 along with the Governor General etc. from trial in criminal
cases by Indian courts, there could be no question of the Constituent Assembly
giving immunity claimed by bribe-taking Members of Parliament under clause (2)
of Article 105.

The Founding Fathers, most of whom had participated in the national freedom
struggle and who abolished all titles, dignities, powers, privileges and immunities
enjoyed by the erstwhile Rulers of the Indian States, and other feudal elements, and
were fired with great ideals, could not possibly declare Members of Parliament and
of the Legislatures of the States "super-citizens". They could never make
provisions in the Constitution to condone the commission of offences against the
State including offences of bribery and corruption.

The decision of the majority, it is submitted with respect, is in serious discord with
the letter, the ideals, and aspirations of the Constitution while the minority opinion
is in harmony with them. The reasoning of the minority also coincides with the
present national outcry against politicians with dubious, criminally tainted records
and the wish of ordinary people to keep such persons out of legislative chambers.

The decision in the JMM bribery case, it is submitted in all humility, requires
immediate correction by a competent Bench of the Hon'ble Supreme Court.

* Senior Advocate, Supreme Court of India. Return to Text

1. (1998) 4 SCC 626. Return to Text

2. Article 105(2) lays down: "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....". Return to Text
3. (1948) 75 IA 41. Return to Text
4. 1939 FCR 159. Return to Text
5. (1960) 2 SCR 89, 100-101. Return to Text
6. (1955) 2 SCR 925, 932-933. Return to Text
7. (1955) 1 SCR 1302. Return to Text
8. It is interesting to see that the law is not different in the U.S.A. also as is
evident from the observations of Chief Justice Burger in United
States v. Brewster, (33 L Ed 2d 507) which run thus: " Taking a bribe is no
legislative process or function, it is no legislative act; it is not by any
conceivable interpretation, an act performed as part of, or even incidental to
the role of a legislator.". Return to Text
9. See Section 114, Illustration (e) of the Evidence Act, 1872. Return to Text
10. (1970) 2 SCC 272. Return to Text
11. (1961) 3 SCR 486. Return to Text
12. 26 L Ed 377. Return to Text
13. Clause (2) provides: No Criminal proceeding whatsoever shall be instituted
or continued against the president or the Governor of a State in any Court
during his term of office
"Clause (3) provides: No process for the arrest or imprisonment of the
President or the Governor of a State shall issue from any Court during his
term of office". Return to Text
14. (1991) 4 SCC 699 (719). Return to Text
15. Re-quoted from K. Anandan Nambiar v. Chief Secy., Govt. of Madras,
(1966) 2 SCR 406, 416. Return to Text
16. Vol. II(1) para 37 at page 40. Return to Text
17. 21 St. Edn. page 128. Return to Text
18. See for relevant discussion in paragraphs 9-11 in the judgment at note 1
supra. Return to Text
19. 13 SCR (NSW) 332. Return to Text
20. (1923) 33 CLR 386. Return to Text
21. (1884-85) 7 Ontario Reports 524. Return to Text
22. 15 L Ed 2d 681. Return to Text
23. 33 L Ed 2d 507. Return to Text
24. See Gerard Carney: Conflict of Interest. Return to Text
25. See for clauses (2) and (3) of Article 361 in Note 13 supra. Return to Text
26. (1965) 1 SCR 413, 462, 463. Return to Text
27. Quoted in K.A. Nambiar v. Chief Secy., (1966) 2 SCR 406, at pp. 416,
417. Return to Text
28. See Nambiar v. Chief Secy. at p. 416 of Report in Note 27 supra. Return to Text
29. May's Parliamentary Practice, VIIth Edn. p. 78. Return to Text
30. See Nambiar v. Chief Secy. in Note 27 at p. 417. Return to Text
31. (1) Pillalamarri Venkateswarlu v. Distt. Magistrate, ILR 1951 Mad 135
(2) K. Anandan Nambiar, In re, ILR 1953 Mad 93. Return to Text
32. ILR (1954) 1 Cal 272. Return to Text
33.51 ELR 1.