Whether by virtue of Article 105 of the Constitution a Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal court?
This was the question which came for consideration before the Supreme Court in the case of ‘P.V.Narsimha Rao v. State CBI (1998)’.
What was the matter?
In the General Election for the Tenth Lok Sabha held in 1991 the Congress (I) part, emerged as the single largest party and it formed the Government with P.V. Narsimha Rao as the Prime Minister.
In the Monsoon Session of Lok Sabha July 1993 a `No Confidence Motion’ was moved against the Government by Ajay Mukhopadhyaya, a CPI (M) M.P. At that time the effective strength of the House (Lok Sabha) was 528 and Congress (I) party had 251 members. It was short by 14 members for simple majority.
The Motion of No-Confidence was taken up for discussion in the Lok Sabha on July 20 1993 and the debate continued till July 28, 1993. The motion was thereafter put to vote. The motion was defeated with 251 members voting in favour of the motion, while 265 voting against it.
On February 28, 1996, Ravindra Kumar of Rashtriya Mukti Morcha filed a complaint dated February 1, 1996 with the Central Bureau of Investigation wherein it was alleged that in July 1993 a criminal conspiracy was hatched by Narsimha Rao, Satish Sharma, Ajit Singh, Bhajan Lal, V.C. Shukla, R.K. Dhawan and Lalit Suri to prove a majority of the Government on the floor of the House on July 28, 1993 by bribing Members of Parliament of different political parties, individuals and groups of an amount of over Rs.3 crores and that in furtherance of the said criminal conspiracy a sum of Rs. 1.10 crores was handed over by the aforementioned persons, to Suraj Mandal.
On the basis of the said complain the CBI registered four cases under Section 13(2) read with Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, against Suraj Mandal, Shibu Soren , Simon Marandi and Shallendra Mahto, Members of Parliament belonging to the Jharkhand Mukti Morcha party [for short `JMM’].
Subsequently in pursuance of the order dated May 24, 1996 passed by the Delhi High Court in Civil Writ Petition No. 23/96 another case was registered on June 11, 1996 against Narsimha Rao, Satish Sharma, Suraj Mandal, Shibu Soren, Simon Marandi, Shallandra Mahto, V.C. Shukla, R.K. Dhawan, Lalit Suri and others under Section 120-B-IPC and Section 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act.
Charge sheets of CBI
After completing the investigation, the CBI submitted three charge sheets dated October 30, 1996, December 9, 1996 and January 22, 1977 in the court of Special Judge, New Delhi.
- In the FIRST CHARGE SHEET DATED OCTOBER 30, 1996 it was stated that investigation had revealed that Narsimha Rao, Satish Sharma, Suraj Mandal, Shibu Soren, Simon Marandi, Shallandra Mahto, Buta Singh, and other unknown persons entered into a criminal conspiracy to defeat the `No Confidence Motion’ by resorting to giving and accepting of gratification as a motive or reward and in pursuance thereof four Members of Parliament belonging to JMM) Sharma, Mandal, Soren, Marandi, and Mahto, accepted illegal gratification to vote against the Motion and because of their votes and some other votes the Government led by Rao survived.
It was also stated in the charge sheet that investigation has also revealed that the four Members of Parliament belonging to JMM had been bribed in crores of rupees for voting against the `No Confidence Motion’.
- The SECOND CHARGE SHEET DATED DECEMBER 9, 1996 was in the nature of a supplementary charge sheet wherein it was stated that investigation has further revealed that V. Rajeshwar Rao, N.M. Revanna, Ramalinga Reddy and M. Thimmegowda were also parties to the criminal conspiracy which is the subject matter of the first charge sheet filed on October 30, 1996 and in pursuance to the said criminal conspiracy they had arranged funds and bribed the four JMM MPs as the motive or award to secure their support to defeat the `No Confidence Motion’ and thereby committed the offences punishable under Section 120- B IPC and Section 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder along with the original seven accused.
- In the THIRD CHARGE SHEET DATED JANUARY 22, 1997, which was described as `Supplementary Charge Sheet No. 2′, it was stated that further investigation has been carried on under Section 173(8) of Cr. P.C. and as a result identity of remaining accused persons has been established and that they are Bhajan Lal, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Abhay Pratap Singh, Anadi Charan Das, Haji Gulam Mohd. Khan and late G.C. Munda.
It was stated that even after securing the support of four JMM MPs in the manner stated in the first charge sheet dated October 30, 1996 and second charge sheet dated December 9, 1996 the Congress (I) Government still required the support of some more MPs and that with this objective the Congress (I) led by Rao was making efforts to win the support of some other MPs including MPs belonging to Janta Dal (Ajit Group) [for short `JD(a)].
Application for pardon
An application was submitted by Shailendra Mahto under Section 306 Cr. P.C. for grant of pardon for being treated as an approver. The said application was referred to the Magistrate for recording his statement under Section 164 Cr. P.C. and after considering the said statement the Special Judge, by order dated April 5, 1997, allowed the application of mahto and tendered pardon to him on the condition of his making a full and true disclosure of all the circumstances within his knowledge relating to the offences of every other person concerned, whether as a principal or abettor in the commission of the offences under the charge sheets.
After hearing the arguments on charges, the Special Judge passed the order dated May 6, 1997 wherein he held that there is sufficient evidence on record to justify framing of charges against all the appellants.
The plea of Privilege
Before the Special Judge, an objection was raised on behalf of the accused persons that the jurisdiction of the Court to try the case was barred under Article 105(2) of the Constitution because the trial is in respect of matters which relate to the privileges and immunities of the House of Parliament (Lok Sabha) and its Members inasmuch as the foundation of the charge sheets is the allegation of acceptance of bribe by some Members of Parliament for voting against the `No Confidence Motion’ and that the controversy to be decided in this case would be in respect of the motive and action of Members of Parliament pertaining to the vote given by them in relation to the `No Confidence Motion’.
The Special Judge rejected the said contention on the view that in the present case voting pattern of the accused persons was not under adjudication and they were sought to be tried for their illegal acts committed outside Parliament, i.e., demanding and accepting the bribe for exercising their franchise in a particular manner, and the accused persons are not being prosecuted for exercising their right of vote but they are being prosecuted on the allegations that they while holding a public office demanded and accepted illegal gratification for exercising their franchise in a particular manner which is an offence punishable under the 1988 Act and that Article of the Constitution does not provide any protection to the accused persons.
Argument of Public Office
Another contention that was urged before the Special Judge was that a Member of Parliament is not a public servant for the purpose of the 1988 Act and as such giving and taking of the alleged illegal gratification does not amount to any offence punishable under the provisions of the 1988 Act and there cannot be any offence of conspiracy of giving and taking of bribe by a Member of Parliament.
The said contention was rejected by the Special Judge on the view that the question whether a Member of Parliament is a public servant is concluded by the decision of the Delhi High Court in the cases of L.K. Advani v. Central Bureau of Investigation wherein it has been held that Member of Parliament is a public servant under the 1988 Act.
Contention of Sanction
It was also urged before the Special Judge that the case could not be proceeded against the accused persons since previous sanction for prosecution under Section 19 of the 1988 Act had not been obtained. The said contention was also rejected by the Special Judge on the ground that no previous sanction of prosecution for an accuse under Section 19 is necessary if he has ceased to hold a public office which was allegedly misuse by him and,
in the present case at the time of filing of the charge sheets and on the state of taking of cognizance by the Court Tenth Lok Sabha had come to an end and after the Election in 1996 at the accused persons who were the members of the Tenth Lok Sabha had ceased to hold the office as Members of the said Lok Sabha and therefore under law no sanction for their prosecution is required and furthermore accused persons are sought to be tried for criminal conspiracy under Section 120-B IPC read with Sections 7, 12, 13(2) of the 1988 Act as well as the substantly offences and,
that according to Section 19 of the 1988 Act sanction is required only in respect of the offences punishable under Section 7 and 13 and these substantive offences were alleged committed by Members of Parliament who had accepted the illegal gratification for voting again the `No Confidence Motion’ and that no sanction is required in the case of a Member of Parliament or a Member of the State Legislature though he is a public servant because there is no sanctioning authority qua him.
Revision Petitions filed by the appellants against the said order of the Special Judge have been dismissed by the impugned judgment of the Delhi High Court.
Case in Supreme Court
Feeling aggrieved by the said judgment of the High Court, the accused filed appeals in Supreme Court. The appeals were heard by a bench of three Judge. After hearing the arguments of the counsel, the following order was passed by that bench on November 18, 1997:-
“Among other questions, a substantial question of law as to the interpretation of Article 105 of the Constitution of India is raised in these petitions. These petitions are, therefore, required to be heard and disposed of by a Constitution Bench.”
In accordance with that order, the matter was placed before 5 Judges Bench that included S.C.Agrawal, G.N.Ray, A.S.Anand, S.P.Bharucha, and S.Rajendra Babu.
Decision of the Supreme Court
The court held that-
“We have 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.
- 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 Sing Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed are entitled to the immunity conferred by Article 105(2).
- D.K. Adikeshavulu and M. Thimmogowda 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 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 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 was a public servant, being 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 Section 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.”
The appeals shall then placed before a bench of three learned judges for hearing, on any other points that may be involved, and final disposal.
Narsimha Rao v. State (1998)