As the Kishore Chandra Deo committee’s investigation into the cash-for-votes scandal trundles along, the nation waits to see whether it will be able to remedy the erosion of public faith in the Indian parliamentary system. The significance of the constitutional issues raised by the scandal considerably outweighs the headline-grabbing acts of Ashok Argal, Mahavir Bhagora and Faggan Singh Kulaste. While little newsprint was spared in the ethical and moral condemnation of the televised acts, precious little has been done to analyse the constitutional conundrum that this scandal has created.
Illustration: Jayachandran / Mint
All that has emanated from the press rooms of political parties can at best be described as fuzzy headed, high decibel rhetoric. It would better serve the purpose of the Constitution to initiate an informed debate on the legal issues raised by this scandal and, in particular, to assess the most effective mechanism for bringing the guilty to book.
The seven-member committee chaired by Kishore Chandra Deo was set up by Lok Sabha Speaker Somnath Chatterjee under the Rules of Procedure and Conduct of Business in the House of the People (the “Rules”). Such committees are empowered to call for documents and summon individuals for carrying out their investigation. It is noteworthy that the BJP has submitted transcripts of the alleged sting operations conducted by news channel CNN-IBN to the Deo committee. Further, as has been widely reported in the media, various MPs have been examined.
Even assuming that the committee were to find the MPs guilty, there is a doubt whether it can punish them. The committee is empowered to issue a report on the basis of its investigations. But this is about as far it can go. In the absence of any punitive powers, the Deo committee lacks the teeth to expel the alleged bribe-takers, if found guilty, or punish them in any other way.
Even the speaker is powerless to act on the basis of the committee’s report. The speaker enjoys no power to disqualify MPs from membership in event of a red card being issued by such a panel. Hence, it is undeniable that the Deo committee is a mere paper tiger.
Another significant roadblock in the path to the expeditious resolution of this issue is Supreme Court’s judgement in P.V. Narasimha Rao v. State, known in media-lore as the JMM bribery case.
In a judgement tainted with the ignominy of having to coin phrases such as “bribe-giving MPs” and “bribe-taking MPs”, the law on this point was settled by the Supreme Court in P.V. Narasimha Rao v. State ((1998) 4 SCC 626) . The court held that MPs who voted against a no-confidence motion against the then Narasimha Rao government, after receiving a bribe, would enjoy immunity from prosecution under Article 105(2) of the Constitution. The judgement also classified MPs as “public servants” under the Prevention of Corruption Act, 1988 (the Act). The majority concluded that since there was no authority to grant sanction for prosecution of the MPs, they could not be tried under the Act. The beneficial outcomes of this finding are highly questionable as it exempted “bribe-taking MPs” from prosecution.
However, a detailed analysis of section 19(1)(c) of the Act would have yielded the residual provision with regard to grant of sanctions for persons not specifically listed therein. In such cases, the power lies with the authority competent to remove such offending person from office. With regard to MPs, the authority with whom such power rests is the president in accordance with Article 103 of the Constitution, which decision must be exercised in accordance with the opinion of the Election Commission. In saying so, we beg to differ with the Supreme Court’s interpretation of Article 103 in P.V. Narasimha Rao v. State, which had held that the president cannot be considered to be the authority contemplated under the Act.
Therefore, the constitutional scheme does provide a mechanism for removal of MPs for incurring disqualifications during their tenure in Parliament. Accordingly, reading section 19(1)(c) together with Article 103, it is evident that no vacuum exists with regard to an authority to grant sanction for prosecution.
We also disagree with the findings of the Supreme Court on MPs’ immunities under Article 105(2).
The two principal elements over which the provisions of Article 105(2) of the Constitution confer immunity on an MP from criminal prosecution are in respect of “freedom of speech” and the “right to give vote” in Parliament or any committee thereof. The immunity by its very nature is thus only available with respect to parliamentary activities. It would be a travesty of constitutional interpretation if such immunity was applied to acts done in an MP’s personal capacity. Thus, the commission of the offence of bribery, having been done in personal capacity, cannot enjoy constitutional protection.
An interpretation of Article 105(2), enabling an MP to claim immunity from prosecution for bribery and, thereby, placing them above the law, would not only be repugnant to the healthy functioning of parliamentary democracy, but would also be subversive of the principle of equal treatment of all that’s enshrined in the Constitution.
It is high time for a review of the Supreme Court judgement in P.V. Narasimha Rao v. State by a duly constituted bench. This will also seek to ensure that scenes which were aired across the international media do not recur. Thereafter, at least it would be clear to all and sundry that legislators taking a bribe cannot crouch behind constitutional protections and would be prosecuted under the provisions of the Act.
Shashwat Tewary and Saionton Basu are lawyers with an interest in Indian constitutional law and governance. Comments at firstname.lastname@example.org