Parliament can take action, as it did in the cash-for-queries scam, but until the law allows prosecution of MPs, the punishment will always be patchy and incomplete.
Arun Jaitley,
General Secretary, BJP
You have to understand why MPs were given Constitutional protection and then interpret the law according to that
At the end of the day, you can interpret every legal and constitutional provision and scheme in a narrow sense or you can interpret it in the correct sense, which is that the idea is to further the object or the reason why that provision was brought in. With corruption and horse trading on the increase, to interpret the law in a manner that encourages corruption instead of trying to eliminate it is very unfortunate. And that is precisely what is being done when we interpret certain articles of the Constitution to say that MPs who take money to vote in a certain manner cannot be criminally prosecuted for their actions.
It is also, to any fair mind, completely ludicrous that if, under the law, the person giving a bribe can be criminally prosecuted but the person who has taken the bribe is not to be chargesheeted.
At the end of the day, any kind of impropriety is to be dealt with by taking two types of action. The first is an action of the state and the other is an action of the institution of which you are a part. A government employee accused of corruption can be sacked by the government department or ministry in which she or he is employed; but this is not the end of the matter. The employee can and will be at the same time prosecuted by the state and an inquiry will follow. If a lawyer cheats his client, he or she will face two types of action. One action will be by the Bar Council of the country which can debar the lawyer; at the same time, the government of the day will initiate action against the lawyer and, if the case is proved, will pass sentence on him or her. If a Business Standard journalist publishes an incorrect story with mala fide in mind, Business Standard will take strict action, possibly even firing the journalist. But the matter cannot, and will not, stop at the action taken by this newspaper. The aggrieved party also expects some justice from the government and the courts.
So, to expect that it is enough that Parliament can take action against those MPs who take bribes in return for voting in a particular manner is completely inadequate, and this is not what has been envisaged in the Constitution. In this particular case, money was paid outside the house to ask MPs to abstain from voting and so there is a very good case for prosecution under the law.
As for the question as to why Parliament has not taken any action, as it did when it expelled MPs in what’s called the cash-for-questions case, I’m afraid the action that Parliament takes is inadequate and the speed and direction depends upon the numerical strength of the party to which the MPs in question belong. There is little doubt in my mind that until the provisions of the Constitution are interpreted in a manner that shelters MPs from criminal prosecution for acts they do in Parliament, we haven’t seen the end of the sordid episode the nation witnessed when the Manmohan Singh government won its trust vote last week on Tuesday.
(As told to Sunil Jain)
RK Anand,
Senior Advocate
The BJP MPs took bribes for exposure and not for voting and so aren’t covered by the immunity clause and are liable to be convicted
The legitimacy to corruption in public life needs to be condemned. Membership of Parliament is a great honour and carries with it a special duty to maintain the highest standards of probity and this duty in India and outside has almost invariably been strictly observed. Article 105(1) of our Constitution has made a special provision for freedom of speech in Parliament which suggests that this liberty is independent of one conferred by Article 19, unrestricted by the exceptions contained therein. A vote is treated as an extension of speech. 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/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 wider protection of immunity against all proceedings that bear a nexus to their speech or vote.
Neither the MP’s vote nor his motive for voting, however dishonourable, could be the subject of a civil or criminal proceedings outside the House of Parliament.
Bribery is often carried out by pre-arrangement and if that part of the transaction may be plucked from its context and made the basis of criminal charge, the speech or debate clause loses its force. The judicial inquiry into an alleged agreement of this kind carries with it the danger to legislative independence.
If criminal trial is permitted, then the expression “In respect of” must receive a broad meaning; the alleged conspiracy and agreement have a nexus and were in respect of those votes and the inquiry in the criminal proceedings would be in regard to motive thereof which is impermissible.
In England, the House of Lords has maintained that statement made by member of either House of Parliament in the House, though might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings. Conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law.
The Supreme Court in the JMM bribery case, relying upon the decision in “Johnson” (388 US 169) and from the dissenting judgment in “Brewster” (408 US 501) ruled that neither the vote nor his motive for voting, however, dishonourable, could be the subject of a civil / criminal proceeding outside the House. The charge of a corrupt promise to vote was repugnant to the speech or debate clause.
Wads of currency notes flashed inside Lok Sabha by a tainted MP is an unfortunate incident and its alleged source needs thorough investigation as a BJP chief minister is being named as the one who arranged everything. If this is true, its implications would be very serious. The offence against BJP MPs is complete as they the took bribe for exposure and not for voting, as a result, they are not entitled to the immunity clause and are liable to be convicted.
