CASE COMMENTS/CONSTIUTIONAL/CRIMINAL LAW

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Maru Ram v. Union of India (1981) 1 SCC 107

by Dr N. Balu* and Dr R. Prakash**

Cite as : (2002) 6 SCC (Jour) 13

In Maru Ram v. Union of India1 the constitutional validity of Section 433-A of the Criminal
Procedure Code, 1973 was upheld. The petitioners attacked the provision alleging infraction
of Articles 14, 20(1), 72 and 161 of the Constitution of India. It was inducted into the Code
by an amendment in 1978. It lays down as follows:

"433-A. Restriction on powers of remission or commutation in certain cases.—

Notwithstanding anything contained in Section 432, where a sentence of imprisonment for
life is imposed on conviction of a person for an offence for which death is one of the
punishments provided by law, or where a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for life, such person shall not be
released from prison unless he had served at least fourteen years of imprisonment."

A reading of the provision shows that under two circumstances a convict has to actually
undergo incarceration for fourteen years. They are:

(i) when life imprisonment is imposed on a person for an offence for which death sentence is
an alternate penalty, and

(ii) when death sentence is imposed by the court on a person and commuted under Section
433(a) to imprisonment for life.

The petitioners in Maru Ram case1 contended, inter alia that Section 433-A violated Article
20(1)2 The Court, in order to save the section from constitutional infirmity held that the
section will have only prospective operation i.e. only from 18-12-1978, the date on which the
section came into force. In this connection, Krishna Iyer, J. (for himself, Chandrachud, C.J.
and Bhagwati, J.) speaking for the majority made the following observations3: (SCC p. 154,
para 72)

"72. (7) We declare that Section 433-A, in both its limbs (i.e. both types of life imprisonment
specified in it), is prospective in effect. To put the position beyond doubt, we direct that the
mandatory minimum of 14 years' actual imprisonment will not operate against those whose
cases were decided by the trial court before 18-12-1978 when Section 433-A came into force.
All 'lifers' whose conviction by the court of first instance was entered prior to that date are
entitled to consideration by Government for release on the strength of earned remissions
although a release can take place only if Government makes an order to that effect. To this
extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that
short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his
conviction by the court of first instance was before Section 433-A was brought into effect."     
(emphasis supplied)

The words italicized above convey that those persons whose cases were decided after 18-12-
1978, though they had committed the offence before 18-12-1978 will be subject to the
rigours of Section 433-A. It is submitted with respect that there is inconsistency between the
first sentence of the observations extracted above and the italicized words therein. The first
sentence in the above-extracted observations declares that Section 433-A will have
prospective effect. After giving the section prospective effect, the second sentence in the
above observations makes the decision of the trial court as the determining factor for giving
prospective effect. It is submitted with respect that by fixing the date of the decision of the
trial court for the application of Section 433-A, the Court committed an inadvertent error.
The meaning of prospective operation is that the section cannot apply to those persons who
committed the offence before 18-12-1978. But by holding that the section will not operate
against those whose cases were decided by the trial court before 18-12-1978, the Court
permitted the application of Section 433-A against those who would have committed the
offence before 18-12-1978 but the decision of the trial court is after 18-12-1978. The
following example may make clear the inadvertent error committed by the Court.

Suppose, A was charged for the offence of committing a murder on 1-4-1977 and his case
was decided by the trial court before 18-12-1978, say on 17-12-1978 and B was charged for
the offence of committing a murder on 10-1-1977 and his case was decided by the trial court
after 18-12-1978 say on 20-12-1978. Now if we apply the law laid down by the Apex Court
in Maru Ram case1 to this situation, A will get the benefit of short sentencing procedures
though he committed the offence after B committed the same offence. On the contrary, B will
not get the benefit of remission though he committed the offence prior in point of time to A.
It is to be noted that both A and B committed the offence before 18-12-1978 on which date
Section 433-A came into force. In the above illustration, B, though similarly circumstanced
like that of A, could not get the benefit for no fault of his as to what A got.

In Ashok Kumar v. Union of India4 the Supreme Court, following the decision in Maru Ram
case1, dismissed the writ petition of the petitioner who committed the offence before 18-12-
1978 but was convicted on 20-12-1978 i.e. two days after Section 433-A came into force. In
this case no argument was advanced with regard to the inadvertent error committed by the
Hon'ble Supreme Court in Maru Ram case1. Therefore, this aspect of the decision in Maru
Ram case1 needs immediate reconsideration to save convicts throughout the country who
would have committed the offence before 18-12-1978 but whose cases would have been
decided by the trial court after the said date.

The Supreme Court while upholding the vires of Section 433-A in Maru Ram case1 held that
Section 433-A cannot fetter the constitutional power of the President (Union Council of
Ministers) and the Governor of a State (Council of Ministers of a State) under Articles 72 and
161 respectively to grant full pardon even before the expiry of the statutory period prescribed
under Section 433-A. It was held that Section 433-A restricts the appropriate government to
exercise its powers under Section 432 CrPC but cannot restrict the constitutional power
under Articles 72 and 161. Exercise of power under Section 433 CrPC on the one hand and
Articles 72 and 161 on the other is a distinction without a difference. When the action can be
traced to Section 433 CrPC the approval of the President or the Governor, as the case may
be, is not needed whereas if the power is traced to Article 72 or 161, the President's or the
Governor's sanction is necessary. But here also the President and the Governor are bound by
the advice tendered by the Council of Ministers. Therefore the restriction contained in
Section 433-A may become an exercise in futility when a resort is made to the provisions
contained in the fundamental law of the land.

It will be apposite to quote the concurring judgment of Fazal Ali, J. in Maru Ram1:

"94. Doubtless, the President of India under Article 72 and the State Government under
Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc.
This power can neither be altered, modified not interfered with by any statutory provision.
But, the fact remains that higher the power, the more cautious would be its exercise. This is
particularly so because the present enactment has been passed by Parliament on being
sponsored by the Central Government itself. It is, therefore, manifest that while exercising
the powers under the aforesaid articles of the Constitution neither the President, who acts on
the advice of the Council of Ministers, nor the State Government is likely to overlook the
object, spirit and philosophy of Section 433-A so as to create a conflict between the
legislative intent and the executive power. It cannot be doubted as a proposition of law that
where a power is vested in a very high authority, it must be presumed that the said authority
would act properly and carefully after an objective consideration of all the aspects of the
matter."

The decision in Maru Ram case1 may also have an impact on Article 60 of the Constitution.
It is trite law after the seven-Judge Bench decision in Samsher Singh v. State of Punjab6 that
the Governor is a shorthand expression for the State Government and the President is an
abbreviation for the Central Government (vide Maru Ram v. Union of India7). As a result of
the decision of the Constitution Bench in Maru Ram case1, a convict may be pardoned by the
President under Article 72 even if his case squarely falls under Section 433-A. At this
juncture, a glance at Article 60 of the Constitution becomes necessary.

"60. Oath or affirmation by the President.—Every President and every person acting as
President or discharging the functions of the President shall, before entering upon his office,
make and subscribe in the presence of the Chief Justice of India or, in his absence, the
seniormost Judge of the Supreme Court available, an oath or affirmation in the following
form, that is to say—

'I, A.B., swear in the name of that I will

do God faithfully
solemnly affirm execute

the office of President (or discharge the functions of the President) of India and will to the
best of my ability preserve, protect and defend the Constitution and the law and that I will
devote myself to the service and well-being of the people of India.' "

If the President of India is advised by the Union Council of Ministers to pardon a person
whose case falls under Section 433-A the President cannot refuse to give his approval on the
ground that Section 433-A prohibits such a course. If he refuses he may be committing a
breach of Article 74(1) which says that there shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who shall in the exercise of his function
act in accordance with such advice. Therefore refusal to follow the advice (subject of course
with the power to send back one for reconsideration) will tantamount to a direct breach of
Article 74 which is a violation of the Constitution, the ground for impeachment of the
President.

If the President adopts the other possible alternative of giving his approval in the similar set
of circumstances stated above, then also there is a possibility of committing a violation of the
Constitution. If he approves the advice, he will be acting within the precincts of Article 74
but a defiant disobedience of Article 60. If the President gives his approval of pardon for a
person whose case falls under Section 433-A, it will amount to breach of Article 60. He takes
oath not only to preserve, protect and defend the Constitution but also ordinary laws of the
land. Thus a breach of Section 433-A results in breach of Article 60 which in turn results in
violation of the Constitution which is the ground provided in the Constitution to impeach the
President. Therefore, whatever course adopted by the President may put him in a tight
situation. It is submitted that this aspect of the matter escaped attention of the Hon'ble
Supreme Court in Maru Ram case1.

* MA, ML, PhD, Prof. and Head, Department of Legal Studies, International Law and
Constitutional Law, University of Madras. Return to Text

** ML, PhD, Advocate-on-Record, Supreme Court of India. Return to Text

1. (1981) 1 SCC 107 Return to Text

2. "20. Protection in respect of conviction for offences.-(1) No person shall be convicted of any
offence except for violation of the law in force at the time of the commission of the act
charged as an offence, nor be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the offence." Return
to Text
3. Supra fn 1 at p. 154 Return to Text
4. (1991) 3 SCC 498 Return to Text
5. Supra fn 1 at p. 162, para 94 Return to Text
6. (1974) 2 SCC 831 Return to Text
7. Supra fn 1 at pp. 146, 147 Return to Text

PARLIAMENTARY PRACTICES, PROCEDURES AND

PREVILIGES/CONSTITUTIONAL LAW/SUPREME COURT
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PARLIAMENTARY PRIVILEGE:
COMPLEMENTARY ROLE OF THE
INSTITUTIONS*
by Justice P.K. Balasubramanyan+
Cite as : (2006) 2 SCC (Jour) 1

Introduction

The term "parliamentary privilege"1 is essentially

used to describe the law relating to the privileges
or immunities of Parliament and includes its
powers to punish for "contempt" or breach of
privilege. The privileges, whether of Parliament
itself as a collective body or of the individual
members, are intended to enable them to carry out
their constitutional functions of legislating, debate
and enquiry effectively, independently and
without interference or obstruction from any
quarter. Since, India has these privileges enshrined
in its Constitution, it would be appropriate to
approach the topic with reference to the relevant
constitutional provisions. The law on the subject
in other countries is an important aid for
understanding the limits and extent of the law of
privileges.

Article 105 of the Constitution relating to the

"Powers, privileges and immunities of Parliament
and its members" and Article 194 relating to the
State Legislatures and their members contain
certain enumerated privileges and powers while
leaving room for a large number of uncodified and
unenumerated privileges to continue. Reference to
certain other provisions like Articles 118, 121,
122, 208, 211 and 361-A, which also have a
bearing on the subject, are made at the appropriate
places.

Regarding speech

Article 105(1) guarantees freedom of speech in

Parliament subject of course to the rules and
Standing Orders regulating the procedure of
Parliament. What makes Article 105(1) effective
and much more than the right of every citizen to
free speech guaranteed by Article 19(1)(a), is the
immunity from the process of the courts in respect
of anything said in the House. The privilege is
available not only to the Members of Parliament
but also, under Article 105(4) of the Constitution,
to persons like the Attorney General of India or
Ministers who are not members but have a right to
speak in the House. The stage has been set for
fearless participation in the debates in the House.
In order to claim the immunity, what needs to be
shown is only that Parliament was sitting and that
its business was being transacted2

The limitation on the privilege regarding free

speech in Parliament are few. One limitation
obviously is that the freedom is subject to the
constitutional provisions and the rules and
procedures of Parliament. The rules are those
framed under Article 118 of the Constitution.
Under Article 121, Parliament cannot discuss the
conduct of Judges of the Supreme Court and of the
Judges of the High Court. Even if there is any
violation of these limits it would still be a matter
exclusively for Parliament to deal with and the
courts would have no jurisdiction to look into the
matter. In view of Article 122, the courts are also
explicitly barred from enquiry into the validity of
any proceeding in Parliament. Another exception
is of course that Parliament must be sitting. The
privilege cannot, arguably, be stretched to cases of
casual conversation in the House. A member
cannot also claim immunity for any speech that he
may make outside the House even if it is a
verbatim reproduction of what he has said inside
the House. In a case decided by the United States
Supreme Court evidence had been admitted on the
authorship, content and motivation of a speech
made by a member on the floor of the House of
Representatives in pursuance of a conspiracy
designed to give assistance in return for
compensation. It was held3 that the conspiracy
conviction was based on an intensive enquiry of
the proceedings of the House and was, therefore,
unsustainable. In England, under Section 13 of the
Defamation Act, a member may waive privilege
and contest the proceedings.4 In the absence of a
similar provision, it is doubtful if an Indian court
could, in the light of the express bar under Article
105(2), entertain a litigation even in a case of
waiver of privilege. So, it is evident that subject to
very minor limitations the privilege under Articles
105(1) and (2) with regard to speech in the House
is complete, conclusive and outside the scope of
scrutiny or enquiry by other organs of the State.

Regarding publication
The freedom of publication is available to all
persons who may publish reports, etc. of the
House or papers under the authority of the House.
For the purposes of Articles 105(1) and 105(2), it
is quite immaterial if the publication was meant
for circulation among the Members of Parliament
or for a larger audience. The development of the
law in this regard owes much to the case of
Stockdale v. Hansard5 A book containing
defamatory matter was published under the
authority of the House of Commons leading to a
suit for damages. The suit was decreed holding
that no privilege is attached to the publication.
This led to the framing of the Parliamentary
Papers Act, 1840 granting complete privilege to
the publications made under the authority of the
House. Articles 105(1) and (2) reflect the march of
the English law on the subject.

A word must also be said about the rights of

publication in respect of proceedings of the House,
but not under its authority. Such publications
obviously do not have the protection of Articles
105(1) and (2). But, an attempt has been made to
protect the freedom of the press and thereby give
the public access to the proceedings of the House.
The Parliamentary Proceedings (Protection of
Publication) Act, 1956 was repealed during the
emergency but re-enacted in 1977 and it covers
both publications and broadcasts. Article 361-A
was added to the Constitution later and the
protection has since then a much higher status.
But, it must be noted that the protection is only of
immunity from court proceedings and not from
action from the House itself in case it initiates
proceedings for breach of privilege.

In order to qualify for this immunity from civil

and criminal proceedings, all that is required is
that the publication or broadcast must be a
"substantially true report" of the proceedings in
the House. The immunity is lost only if it is
proved that the publication was made with malice
or if it related to the proceedings of any secret
meeting of the House. In some ways the privilege
is similar to the one conferred on persons
reporting court proceedings by the Fourth
Exception to Section 499 of the Penal Code. The
privilege could be successfully claimed even in
respect of a part of the debate which alone the
reporter finds newsworthy provided that it is a fair
report, untainted with malice.6

The limits of the privilege with regard to

publication can be appreciated with reference to
two cases decided by the Supreme Court. In
M.S.M. Sharma v. Sri Krishna Sinha7, action was
initiated for breach of privileges in respect of a
publication of a speech made in the House that
had been expunged by the Speaker. In Jatish
Chandra Ghosh (Dr.) v. Hari Sadhan Mukherjee8
a member published questions that were
disallowed by the Speaker. In both cases, the
publications were found not entitled to any
privilege.

Regarding voting

The other privilege expressly conferred by Article

105(2) of the Constitution is the one relating to the
vote by a member in the House. The ramification
of having a complete immunity from court
proceedings in respect of the vote in Parliament
was felt in JMM case9 The Supreme Court was
called upon to decide if the constitutional
immunity could be applied to the case of an
alleged bribe given to members for exercising
their vote in Parliament. The Court by majority
held that the member, the alleged bribe-taker,
could not be proceeded against. But, the bribe-
giver and a member, who had not voted but had
merely abstained, were found disentitled to any
immunity. The majority were quite unhappy that
they had to come to the conclusion that they did:

"137. We are acutely conscious of the seriousness

of the offence that the alleged bribe-takers 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, impairing the guarantee to
effective parliamentary participation and debate."
(SCC p. 730, para 137)
Both, the minority and the majority judgments in
the case indicate the march of the law in various
countries and the attempts to cut down on the
immunity. In particular, reference is found to the
Report of the Royal Commission on Standards in
Public Life (chaired by Lord Salmon) which has
stated that "neither the statutory nor the common
law applies to the bribery or attempted bribery of a
Member of Parliament in respect of his
parliamentary activities" but "corrupt transactions
involving a Member of Parliament in respect of
matters that has nothing to do with the
parliamentary activities would be caught by the
ordinary criminal law". The report also notes that
investigation into such matters could be too
complex, would require special expertise and be
beyond the investigative capacities of the House.
A Parliamentary Commissioner for Standards
appointed by the Select Committee of Standards
and Privileges can and does go into the propriety
of a member's conduct and deals with allegations
of corrupt payment to members. But, the courts in
England still believe that the ordinary criminal
courts are best equipped to deal with bribery
cases. Buckley, J. in R. v. Greenway10 has stated
as follows:

"That a Member of Parliament against whom there

is a prima facie case of corruption should be
immune from prosecution in the courts of law is to
my mind an unacceptable proposition at the
present time. I do not believe it to be the law. The
Committee of Privileges is not well equipped to
conduct an enquiry into such a case, nor is it an
appropriate or experienced body to pass sentence.
Unless it is to be assumed that it would be
prejudiced in his favour, I cannot see that it would
be in the member's own interest for the matter to
be dealt with by the Committee. The courts and
legislature have over the years built up a
formidable body of law and codes of practice to
achieve fair treatment of suspects and persons
ultimately charged and brought to trial. Again,
unless it is to be assumed that his peers would lean
in his favour, why should a member be deprived
of a jury and an experienced judge to consider his
guilt or innocence and, if appropriate, sentence?
Why should the public be similarly deprived?"
Section 73-A of the Crimes Act, 1914 in Australia
and Section 108 of the Criminal Code in Canada
are statutory provisions that make the acceptance
of a bribe by parliamentarians, an offence. The
House of Commons, in 1947 and in 1995, has
resolved that no member could, for consideration,
reward or fee, raise an issue in the House. Section
14(a) of the Ceylon Bribery Act, 1954 seeks to
punish both the bribe-giver and bribe-taker in case
of bribery of judicial officers and members of
either the Senate or the House of Representatives.
The provision has been held to prevail over the
privilege claim made by the member.11 But, the
plain words of Articles 105(1) and (2), that the
majority in JMM case9 found compelled to apply,
has left little room for recognising the changes
taking place the world over.

The National Commission for review of the

Constitution in its report12 submitted in 2002 has
in fact recommended that Article 105(2) ought to
be amended:

"5.15.6. The Commission recommends that

Article 105(2) may be amended to clarify that the
immunity enjoyed by the Members of Parliament
under parliamentary privileges does not cover
corrupt acts committed by them in connection
with their duties in the House or otherwise.
Corrupt acts would include accepting money or
any other valuable consideration to speak and/or
vote in a particular manner. For such acts they
would be liable for action under the ordinary law
of the land. It may be further provided that no
court will take cognizance of any offence arising
out of a member's action in the House without
prior sanction of the Speaker or the Chairman, as
the case may be. Article 194 (2) may also be
similarly amended in relation to the Members of
State Legislatures."

Perhaps, one limitation on the privilege to vote

can be found in the Constitution (Fifty-second
Amendment) Act, 1985 and the anti-defection
rules framed thereunder. The disobedience of the
party whip could lead to disqualification of a
member. It applies only to voting and not to any
other right of a member like his privilege
regarding speech.13

Regarding statutory law

This brings us to Article 105(3) of the

Constitution. The provision has been the cause of
a great deal of confusion, throughout. Article
105(3), as originally framed, provided that until
the law relating to parliamentary privilege is
codified, the privileges of the House would be the
same as those of the House of Commons that
existed at the commencement of the Constitution.
In the Constituent Assembly Debates, Dr.
Ambedkar remarked that South Africa has passed
a law and codified the law of privileges. The
provision Article 85(3) of the Draft Constitution
was passed with the hope of framing statutory law
within a short time-frame.14 The criticism even
then was that the provision was vague and that the
reference to the law of another country was
uncalled for.15 No attempt at codification was
made by Parliament or the legislatures. After the
Constitution Forty-second and Forty-fourth
Amendment Acts of 1976 and 1978 respectively,
the original Article 105(3) has been substituted.
The present Article 105(3) preserves the privileges
existing until the coming into force of the Forty-
fourth Amendment Act pending legislation on the
subject. The change is cosmetic and in substance
the article remains the same. We thus have a
transitory provision in force for decades.

The reluctance to codify the law of privileges

appears to be based on a misconception that such
codification would lead to increased interference
by the courts. A former Speaker of the Lok Sabha
has stated the following in the course of an
article16:

"It is provided that the privileges of the

parliamentarians may be codified. However, on
one hand there is a pressing demand made by the
media persons to make a law, providing for the
privileges, on the other hand, Members of
Parliament and most of the Presiding Officers
have opposed the move to codify them on the
ground that as the judicial interpretation of the law
is the responsibility of none else but the judiciary.
If privileges are codified, the matters would be
taken to the courts and the Members of Parliament
and the Presiding Officers would be asked to
subject themselves to the jurisdiction of the
judiciary and that would affect the equality
between three wings of the Government and
ultimately affect the privileges of the
parliamentarians to express their views without
fear or favour."

It must be remembered that Article 122 of the

Constitution does expressly bar the jurisdiction of
courts in the affairs of the House. The Court has
even refused to enquire into the validity of the
passing of a law on the ground that several
members were under preventive detention.17 But,
parliamentarians appear to be wary that the Court
by declaring itself to be the final authority on the
interpretation of the Constitution and the laws
would interfere in its functioning. The limits of
parliamentary privilege, particularly in this
uncodified scenario has become a matter of law.
In such a situation, it is a moot question if by
avoiding codification of the privileges, as
contemplated by the Constitution, greater powers
are being retained by Parliament. It does appear
that codification is a distant dream as the first
conference of the Chairmen of Committees of
Privileges of Parliament and State Legislatures in
India held in 1992, has unanimously resolved that
there should be no codification of privileges.18 In
fact, the Constitution Review Committee has said
that privileges are not meant to be privileges
against the people or against the freedom of the
press. It has been recommended as follows19:

"5.15.3 ... The Commission recommends that the

time has come to define and delimit privileges
deemed to be necessary for the free and
independent functioning of Parliament. It should
not be necessary to run to the 1950 position in the
House of Commons every time a question arises
as to what kind of legal protection or immunity a
member has in relation to his or her work in the
House."

If a law is made in exercise of power under Article

105(3), it would undoubtedly have to satisfy the
test of constitutionality before the courts. The
argument that law made in exercise of this power
would be outside the scope of Article 13 of the
Constitution has been repelled by the Supreme
Court.20 But, in the present situation, when no
law is made but nonetheless privileges are claimed
and exercised by the House under the latter part of
Article 105(3) itself, it puts the fundamental rights
of the citizen under peril and leads to disputes and
judicial adjudication. The courts are forced to
enter an arena that they would normally avoid.

Regarding privileges and fundamental rights

The advisory opinion rendered by the Supreme

Court in the case of Keshav Singh21 arose out of
the exercise of one of the most important
privileges of a legislature i.e. to punish for
contempt. Such cases have arisen out of the
zealousness of the courts to protect the
fundamental rights of the citizen and the
legislative bodies to protect their privileges. In this
situation, the interest of the nation is twofold i.e.
of free and frank discussion in the House and also
to safeguard the dignity of its citizens.

The Supreme Court was called upon to decide on

the jurisdiction of the High Court to entertain and
deal with the petition filed by Keshav Singh21
complaining of the violation of his fundamental
rights on account of the action of the assembly.
The question arose whether the fundamental rights
of the citizen itself could be subject to the
parliamentary power of privilege. It must also be
remembered that in M.S.M. Sharma7, the Supreme
Court had already held that the right to free speech
of every citizen under Article 19(1)(a) is subject to
the privilege of the House. The Supreme Court in
Keshav Singh21 opined that the violation of
Article 21 on account of exercise of powers under
Article 194(3) could be examined by the Court.
The Court proceeded on the basis that it cannot
look askance if an allegation of violation of the
fundamental rights of a citizen is brought before it
on account of the action of a legislative body. The
Committee of Privileges of Parliament has,
however, opined that the majority opinion is
wrong.22 If the organs of the Government are
unsure on what is right then the citizen and the
nation will suffer.
A recent stand-off occurred in Tamil Nadu. The
Speaker of the assembly issued a warrant for the
arrest of an MLA, R. Tamraikani, for violating the
privileges of the House by hitting and causing
grievous injuries to the Agriculture Minister in the
assembly when the session was going on. The
High Court on a habeas corpus petition ordered his
release. He was released, but within a few minutes
he was rearrested on the order of the Speaker. The
High Court on a second habeas corpus petition
ordered his release. So the possibility of these
kinds of conflicts between the courts and the
legislature can occur. The question would arise as
to the law that should govern a criminal act done
within the House. Is it a matter of mere privilege
or a matter to be dealt with by a court of law? If a
murder is committed in the House then the
ordinary law of the land would obviously apply. A
question would also arise as to the fundamental
right of a citizen who could end up being
imprisoned twice over for the same infraction. His
fundamental right under Article 20(2) of the
Constitution, which bars a person being
prosecuted and punished for the same offence
more than once, would be jeopardised since the
privilege action would not be a trial by a court. It
can only be hoped that when the law of privileges
is codified adequate thought would be bestowed
on these aspects.

In Kihoto Hollohan23 the Court was called upon

to decide intricate questions of constitutional law
touching upon the nature and limits of the powers
of the Speaker of the House and the scope for
judicial intervention in respect of exercise of
power by the Speaker. The Supreme Court by
majority held that the Speaker while adjudicating
on disputed disqualification under the Tenth
Schedule to the Constitution exercises judicial
power and that decisions rendered are subject to
judicial review. The Court did, however, hold that
the Speaker of the House holds an exalted and
pivotal position in a parliamentary democracy and
is the guardian of the rights and privileges of the
House. The vesting of adjudicatory powers on
such an authority was upheld. It was held that the
Court could at best consider the correctness of the
ultimate decision but could not pass orders at the
interlocutory stage, except in grave circumstances,
or at any stage prior to the making of the decision.

This once again brings us to the essential issue of

whether the existence, limits and exercise of the
privileges of the House vis-…-vis the fundamental
rights of a citizen is ultimately determined by the
House itself or by judicial pronouncements. The
judicial view24 is clearly that the "officers and
members of a legislature cannot claim immunity
when they exercise their powers in a manner
opposed to the Constitution" (KLT p. 341, para 6)
and that the power under Article 226 or Article 32
of the Constitution can be invoked against the
legislature.

Regarding non-fundamental rights issues

There have been other instances of the Supreme

Court and Parliament having doubts on the
jurisdiction of the other even in cases where
fundamental rights issues were not involved.

Commissions of Enquiry were appointed and

reports were submitted on various offences
committed by persons in high political and public
offices during the period of the operation of the
proclamation of emergency. The Special Courts
Bill, 1978 to provide for the trial of these classes
of cases was sought to be introduced. The
President, in exercise of powers under Article 143
of the Constitution, referred the following
question to the Supreme Court for consideration
and report:

"Whether the Bill or any of the provisions thereof,

if enacted, would be constitutionally invalid?"

Before the Supreme Court, a preliminary objection

was raised by some States and several interveners
that the reference was incompetent as the Court
would be encroaching upon the functions and
privileges of Parliament. The argument was that
the Court would be "withdrawing" or "lifting" a
Bill in seisin of the Lok Sabha to itself. The
Supreme Court held25 that it has a constitutional
obligation to consider and report on the reference
and that the Court was justified in pronouncing on
the constitutional validity of the Bill, a task that
fell within its legitimate domain. It also held that
rendering an opinion would not encroach upon
any parliamentary privilege and the objection
based on Article 105(3) of the Constitution is
without merit.

In another case the Central Government appointed

a Commission of Enquiry against the Chief
Minister of a State. The State challenged that
action before the Supreme Court contending, inter
alia, that the Centre's action offends Article 194(3)
of the Constitution as the State Legislature had the
exclusive privilege to appoint a committee to
enquire into the conduct of its members. The
argument was repelled by the Supreme Court.26

In Justice V. Ramaswami case27 a motion for

removal of a sitting Judge of the Supreme Court
was made in the Lok Sabha. The motion was
admitted by the Speaker. But, the House was
dissolved thereafter. The matter reached the
Supreme Court at this stage and a whole gamut of
issues were raised for consideration. Did the
motion lapse on the House being dissolved? Could
the Supreme Court investigate such a question?
Since the question related to the removal of a
Judge, was not the jurisdiction to deal with the
matter exclusively within the domain of
Parliament? Was the decision of the Speaker, to
admit the motion and to constitute a committee,
valid?

The Supreme Court disposed of the matter without

issuing any specific direction or writ to any
authority. Nonetheless, the Court proceeded to
declare the legal and constitutional position and
leave the organs of the State to consider matters
falling within the orbit of their respective
jurisdiction.27 It was held that the motion had not
lapsed and that the courts retain the jurisdiction to
make such a declaration. On an interpretation of
the Constitution and the provisions of the Judges
(Inquiry) Act, 1968, it was held that the Speaker is
a statutory authority under the Act and the
constitutional proceedings for removal of a judge
up to a certain stage cannot be said to be outside
the Court's jurisdiction.

Regarding other privileges

There are of course several other privileges of
Parliament like those relating to the bar on arrest
of a member during a session for 40 days before
its commencement and 40 days after its
conclusion, right to exclude strangers from the
House, rights of the Parliamentary Committees to
call for records, right to prohibit publications, etc.
Even an independent officer appointed by a
Parliamentary Committee has been recognised to
be an officer of the House and his actions beyond
the pale of judicial review28 But, it is rarely that
the exercise of these privileges has led to any
inter-institutional issues. During the period from
1952 to 1984 a total of 87 reports, involving 100
issues of privilege were submitted by the
Privileges Committees of the Lok Sabha and
Rajya Sabha. A good number of these cases
involved reflections on members, Speaker or
committees of the House.29

A question has arisen, with some regularity, as to

whether a court of law can issue a notice to the
Speaker of a House or to its members in
connection with their activities relating to the
House. Is the issuance of a notice and its non-
acceptance by the Speaker a matter of
parliamentary privilege? In Thankamma v.
Speaker, T.C. Assembly30 notice was issued by
the Court and accepted by the Speaker. A counter-
affidavit was filed by the Secretary to the
legislature and all arguments, including the
jurisdiction of the Court to go into the question of
the validity of an oath taken in the assembly were
raised. A decision was rendered. But, in Tej Kiran
Jain v. Sanjiva Reddy2 the Speaker of the Lok
Sabha had directed five members of the House to
ignore the notice of lodgment of petition of appeal
issued by the Court. The case was dismissed and
consequently the apprehended conflict was
averted.

The comment31 that was made on the case at that

time is worth quoting and is perhaps more relevant
today than at any other time:

"... Therefore, while the courts should be excluded

from judicially reviewing the freedom of speech in
a legislature, the members have a commensurate
duty to exercise self-restraint even in difficult
moments. They must always keep in mind their
special position and the position of the august
legislative body. They must at the same time not
forget their representative character. They are
elected by the people to mitigate their grievances
and not to claim superiority over their ultimate
masters. The rules of procedure and conduct of
business in Parliament and the legislatures provide
for parliamentary decorum and decency and it is
the onerous duty of the Presiding Officers to see
that the freedom is used properly."

In another case relating to the taking of oath in the

assembly, the Kerala High Court issued notice
which the Speaker refused to accept or
acknowledge. The result was that the Court
proceeded to hear and decide the case.32 The
question does arise if any tangible benefit is
obtained by ignoring notices and courting
decisions without contest. It is doubtful if the
privileges of the House are enhanced or protected
in this manner.

Regarding solutions to avoid conflicts—The

complementary role

The solution to avoid conflicts lies in

understanding the relationship among the
institutions. The doctrine of separation of powers
coined by Aristotle and developed by Locke,
Montesquieu33 and others has found expression in
the Constitution of many countries. The
categorisation of the powers of the State is
intended to prevent concentration of power in any
single group of persons and to let the most
competent organ perform the duties of the State
without interference from the others. The balance
of power in any Government is ensured by a
system of checks and balances that effectively
prevent any one organ from becoming supreme.
The three branches are to share power and
function without encroaching upon the powers
confided to the others.

In practice, a complete separation of powers is

never achieved. The organs of the State do not
operate in watertight compartments. Even early
thinkers like Montesquieu did not visualise a rigid
separation of powers. What was visualised was
only mutual restraint by the organs. In any modern
Government, the overlapping of functions cannot
be avoided. The problems of the State have
increased manifold and are too complex for being
decided by any one organ in isolation. But, if the
organs act in the interest of the State and with
mutual respect for the functions and powers of the
other organs, the objective of the doctrine of
separation of powers is substantially achieved.

The American Constitution expressly vests the

legislative, executive and judicial powers in
separate entities.34 The legislative power is
granted to the Congress, the executive power to
the President and the judicial power to the
Supreme Court and other courts.

The Indian Constitution does not explicitly refer to

any separation of powers. But, there is separation
of powers by necessary implication. In the
Constitutional Assembly Debate,35 preceding the
framing of the Constitution, one of the members
suggested that Article 40-A be inserted. The
article was to read as follows:

"40-A. There shall be complete separation of

powers as between the principal organs of the
State viz. the Legislative, the Executive, and the
Judicial."

But this amendment was opposed by many

contending, inter alia, that what was required was
a harmonious governmental structure and not a
complete separation of powers. Dr. B.R.
Ambedkar while conceding that the executive
should be separated from the judiciary, was not
willing to accept the American model of
separation of powers of the executive from the
legislature. So the Indian constitutional model
definitely does not prescribe watertight
compartments but seems to welcome
encroachments that may be essential to ensure that
the system of checks and balances is effective.
The separation of powers is accepted so as to
preserve the freedom and independence of the
organs of the State as are necessary for their
proper functioning. The Supreme Court in several
cases36 has recognised that a separation of powers
is implicit in the Constitution. In fact
parliamentarians appear to accept that a proper
understanding of the doctrine of separation of
powers can lead to justice being done:

"The Supreme Court in India has said that, the

judiciary has a right under its inherent jurisdiction
to look into the appeals against the decisions given
in the privilege matters, in spite of the fact, that
they are specifically debarred from looking into
the regularity or irregularity of the procedure
followed by the legislature, if the glaring patent
mistakes are committed and if the mistakes are
patent and quite obvious.

Wherever, the theory of separation of powers is

followed, there have been differences and
conflicts between the wings by which powers are
separately enjoyed. That has happened in many
countries and in India also. The wisdom lies in
understanding the essence of the principles and
situations and acting in a manner that unnecessary
controversies are not created, and justice is done,
and facilities to function without obstruction are
generated. By and large, fortunately the different
wings of the State in India have functioned in that
spirit, which has helped the State to function, as it
should."37

The complimentary role assigned to the judiciary

is not to impede the independent functioning of
the other organs of the State but to be the sentinel
on the qui vive that averts the subversion of the
Constitution. Whenever parliamentary privileges
have been used as a shield the institutions have
adopted a complementary role and protected it.
But, wherever it has been used as a sword on the
citizenry the complementary role has been played
by the judiciary by testing the constitutionality of
the action with reference to the rights of the
institution or individual and the privileges of the
House.

Normally, when the legislature enacts a law, it

leaves it to the executive to issue the notification
bringing that law into force. It is generally
provided that the law will come into force on such
day as may be notified. There have been instances
when the executive has failed to issue the
necessary notification to bring the law into force
and to that extent frustrating the object of the
legislation and the will of the legislature. As
examples, the Kerala Scheduled Tribes
Restoration of Lands Act and the Sick Industrial
Companies (Special Provisions) Repeal Act, 2003
(1 of 2004), repealing the Sick Industrial
Companies (Special Provisions) Act, 1985 (1 of
1986). In the former case, it was only after the
Kerala High Court intervened that the necessary
notification was issued. In the latter case, there has
not been a judicial intervention with the result that
the Sick Industrial Companies (Special
Provisions) Repeal Act, 2003 (1 of 2004) has not
come into force yet. When the law enacted by the
legislature is not brought into force by the
executive which is entrusted with the obligation in
that behalf by the legislature, occasions may arise
for the judiciary to intervene and any such
intervention by the judiciary can only be regarded
as an intervention in fulfilling its complementary
role under the Constitution.

I, therefore, suggest that there need not be an

attempt to find out the conflicts and highlight
them. What is called for is a constructive approach
in appreciating the role of each of the institutions
and the circumstances under which a slight inroad
or the presumed inroad is made by the other organ
in the trinity. If such a constructive approach is
made, the goal of the Constitution will be
achieved and the rationale behind not adopting the
rigid doctrine of separation of powers by the
Founding Fathers of the Constitution would also
be justified.

---

* The Third K.S. Rajamony Public Law Lecture

delivered on 27-5-2005 at Kochi. Return to Text

+ Judge, Supreme Court of India. Return to Text

1. Erskine May: Parliamentary Practice (23rd

Edn.) p. 75, defines "parliamentary privilege"
as "... the sum of the peculiar rights enjoyed
by each House collectively as a constituent
part of the High Court of Parliament, and by
 the members of each House, individually,
without which they could not discharge their
functions, and which exceed those possessed
by other bodies or individuals". Return to Text
2. Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC
272. A suit for damages filed by devotees of
the Sankaracharya in respect of derogatory
remarks made by six members in the House
was dismissed by the Supreme Court. Return
to Text
3. United States v. Thomas F. Johnson, 15 L Ed 2d
681 : 383 US 169 (1966) Return to Text
4. Erskine May: Parliamentary Practice (23rd
Edn.) p. 113 Return to Text
5. (1839) LJ (NS) QB 294 Return to Text
6. Cook v. Alexander, (1973) 3 WLR 617 : (1973)
3 All ER 1037 (CA) (Court of Appeal through
Lord Denning, M.R.) Return to Text
7. AIR 1959 SC 395 Return to Text
8. AIR 1961 SC 613 Return to Text
9. P.V. Narasimha Rao v. State, (1998) 4 SCC 626
Return to Text
10. Quoted in "Parliamentary Privilege and the
Common Law of Corruption: R. v. Greenway",
Public Law, 1998, p. 356. Return to Text
11. Attorney-General of Ceylon v. De Livera,
(1962) 3 All ER 1066 (PC) Return to Text
12. Report of the National Commission to Review
the Working of the Constitution (Vol. I, March
2002) p. 168 Return to Text
13. Subash C. Kashyap: Anti-Defection Law and
Parliamentary Privileges (2nd Edn.) p. 100
Return to Text
14. Constituent Assembly Debates, Vol. 10, p. 373
Return to Text
15. Constituent Assembly Debates, Vol. 8, p. 143
Return to Text
16. Shivraj V. Patil "Power, Privileges and Duties of
Parliamentarians", Journal of Constitutional
and Parliamentary Studies, Vol. XXXV, Nos. 1
and 2, p. 17 Return to Text
17. Indira Nehru Gandhi v. Raj Narain, 1975 Supp
SCC 1 Return to Text
18. M.N. Kaul & S.L. Shakdher: Practice and
Procedure of Parliament (5th Edn.) p. 219
Return to Text
19. Report of the National Commission to Review
the Working of the Constitution (Vol. I, March
2002) p. 167 Return to Text
20. Special Reference No. 1 of 1964, (1965) 1 SCR
 413 Return to Text
21. Special Reference No. 1 of 1964, (1965) 1 SCR
413 The facts leading to the Presidential
reference are unique. Keshav Singh was
reprimanded by the U.P. Assembly for breach
of privilege of a member of the House.
Contempt proceeding was initiated on
account of the printing and publishing of a
pamphlet outside the House. The conduct of
Keshav Singh in the House and his letter to the
Speaker led to the Speaker issuing of warrant
for his arrest. Keshav Singh was arrested and
detained in prison. A petition was presented
to the Allahabad High Court on behalf of
Keshav Singh and an interim order to release
him on bail was ordered. The House in turn
proceeded to issue warrants for the arrest of
the Judges who passed the order and the
counsel who moved the petition. The Full
Court of the High Court in turn restrained the
execution of the warrant of arrest. The stand-
off led to the Presidential reference. Return to
Text
22. "Fundamental Rights and Parliamentary
Privileges", Calcutta Weekly Notes, Vol. 96,
Editorial Notes, p. 29 Return to Text
23. Kihoto Hollohan v. Zachillhu, 1992 Supp (2)
SCC 651 Return to Text
24. Sudarsana Babu v. State of Kerala, 1983 KLT
339 affirmed in State of Kerala v. Sudarsan
Babu, 1983 KLT 764 (FB) Return to Text
25. Special Courts Bill, 1978, In re, (1979) 1 SCC
380 Return to Text
26. State of Karnataka v. Union of India, (1977) 4
SCC 608 Return to Text
27. Sub-Committee on Judicial Accountability v.
Union of India, (1991) 4 SCC 699 Return to
Text
28. R. v. Parliamentary Commr. for Standards, ex
p Al Fayed, (1998) 1 All ER 93 (Court of Appeal
through Lord Woolf, M.R.) Return to Text
29. Ranjana Arora: Parliamentary Privileges in
India, p.159 Return to Text
30. AIR 1952 Trav Co 166 Return to Text
31. K.C. Joshi, "Parliamentary Privileges", (1970) 2
SCC J-10 Return to Text
32. Haridasan Palayil v. Speaker, Kerala
Legislative Assembly, (2003) 3 KLT 119 Return
to Text
33. L'Espirit des Lois (1748) Return to Text
34. Section 1 of Articles 1, 2 and 3 of the
 American Constitution. Return to Text
35. Constitution Assembly Debates, Book No. 2,
Vol. VII, p. 959 Return to Text
36. Delhi Laws case, Re, AIR 1951 SC 332; Rai
Sahib Ram Jawaya Kapur v. State of Punjab,
AIR 1955 SC 549 and Ram Krishna Dalmia v.
Justice S.R. Tendolkar, AIR 1958 SC 538 Return
to Text
37. Shivraj V. Patil "Powers, Privileges and Duties
of Parliamentarians", Journal of Constitutional
and Parliamentary Studies, 2001, Vol. XXXV, p.
17 Return to Text

ONSTITUTIONAL LAW
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Codification of Parliamentary Privileges in India - Some Suggestions

by Dr K. Madhusudhana Rao*

Cite as : (2001) 7 SCC (Jour) 21

The powers, privileges and immunities of either House of the Indian Parliament and of its
Members and committees are laid down in Article 105 of the Constitution. Article 194 deals
with the powers, privileges and immunities of the State Legislatures, their Members and their
committees. The language of Article 105 is "mutatis mutandis" the same as that of Article
194 except that for the expression "Parliament" in Article 105 the expression "legislature of a
State" is used in Article 194. Hence, a discussion on Article 105 would be relevant to Article
194 also.

Article 105(1) provides that subject to the provisions of this Constitution and to the rules and
standing orders regulating the procedure of Parliament, there shall be freedom of speech in
Parliament.

Article 105(2) contains two parts. Part one says that 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. Part two provides that no person shall be liable in
respect of the publication by or under the authority of either House of Parliament or any
report, paper, vote or proceedings.

Article 105(3) again contains two parts. Part one says that in other respects the powers,
privileges and immunities of each House of Parliament, and of the Members and the
committees shall be such as may from time to time be defined by Parliament by law. Part two
says that until so defined, the powers and privileges shall be those of the House of Commons
of the Parliament of the United Kingdom and of its Members and committees at the
commencement of the Constitution. Accordingly whenever a question arises with regard to
the availability of a privilege, it becomes necessary to ascertain the powers, privileges and
immunities of the House of Commons as on the 26-1-1950.1

It is to be noted that Article 105(3) is transitional in character and the Constituent Assembly
contemplated that a statute would be made in due course after gathering sufficient evidence
in this regard.2 The Constitution (44th Amendment) Act, 1978 made some cosmetic changes
in Articles 105(3) and 194(3) (w.e.f. 20-6-1979) but the substance remains the same.

In India, some legislative privileges are expressly mentioned in the Constitution while the
others are recognised in the Rules of Procedure and Conduct of Business in Lok Sabha
framed under its rule-making power.

PRIVILEGES MENTIONED IN THE CONSTITUTION

1. Freedom of speech

For the effective functioning of parliamentary democracy, the freedom of speech in

Parliament is guaranteed. This is to enable the Members to express themselves freely in the
House without any fear or favour. In England, this freedom was established in the 17th
century it self.3 This was fortified by the Bill of Rights in 1688.4 In India, the freedom of
speech in Parliament is safeguarded by Article 105(1) and (2). A constitutional restriction on
this freedom imposed by Article 121 (similarly Article 211) is that no discussion shall take
place in any House with respect to the conduct of a Supreme Court Judge or a High Court
Judge in discharge of his duties except when a motion for his removal is under consideration.

2. Immunity from civil and criminal proceedings

The first part of Article 105(2) provides that 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. The scope of this immunity was examined by the Supreme Court
in Tej Kiran Jain v. N. Sanjiva Reddy5. The Court held:

"This article confers immunity inter alia in respect of 'anything said ... in Parliament'. The
word 'anything' is of the widest import and is equivalent to 'everything'. The only limitation
arises from the words 'in Parliament' which means during the sitting of Parliament and in the
course of the business of Parliament. We are concerned only with speeches in Lok Sabha.
Once it was proved that Parliament was sitting and its business was being transacted,
anything said during the course of that business was immune from proceedings in any court.
This immunity is not only complete but is as it should be."6

This view came to be reiterated in P.V. Narasimha Rao v. State (CBI/SPE)7. In this case, on
the scope of Article 105(2), the majority held that Article 105(2) puts negatively what Article
105(1) states affirmatively. Both sub-articles must be read together to determine their
content. By reason of Article 105(2), no Member of Parliament is answerable in a court of
law or any similar tribunal for what he has said in Parliament. A vote cast either by voice or
gesture or with the aid of a machine is given the same protection like a spoken word. "What
is protected is what has been said and a vote that has been cast."8 The expression "in respect
of" in Article 105(2) is wide enough to confer absolute protection against court proceedings
that have a nexus with what has been said and vote that has been cast in Parliament. The
Supreme Court considered that this wide freedom of speech and vote is a "sine qua non" for
the effective functioning of a parliamentary system of government.

By repelling the contention that if the bribe-takers have not committed any offence by reason
of Article 105(2), the alleged bribe-givers have also not committed any offence, the Court
said that those who have conspired with the Members of Parliament in the commission of
that offence have no such immunity and that they can be prosecuted for that.

It was further held that the alleged bribe-takers and bribe-givers have committed breach of
privilege and contempt of the House (Lok Sabha); hence Parliament may proceed against
them for breach of privilege and contempt of House. It follows that the Supreme Court
considered giving or taking of bribes by or to the Members of Parliament in respect of
anything said or any vote cast by them on the floor of the House as a breach of privilege and
contempt of House.

Justice G.N. Ray, in a separate but concurring opinion observed that the underlying object in
guaranteeing freedom of speech and freedom to vote should be promoted by giving a wide
interpretation to the expression "in respect of". If so interpreted, an action impugned in a
court proceeding which has a nexus with the vote cast or speech made in Parliament is
protected by Article 105(2).

In the minority view, Agarwala, J. for himself and on behalf of Dr A.S. Anand, J. (as he then
was) held that Article 105(2) does not protect the bribe-takers and the bribe-givers and hence
they can be prosecuted before the criminal courts.

The minority ruled that an interpretation of the provisions of Article 105(2) which would
enable a Member of Parliament to claim immunity from prosecution in a criminal court for
an offence of bribery in connection with anything said by him or a vote given by him in
Parliament or any Committee thereof and thereby place such Members above law would not
only be repugnant to healthy functioning of parliamentary democracy but would also be
subversive of the rule of law which is also a basic feature of the Constitution.

The minority judgment also reasoned that the offence of bribery is complete with acceptance
of the money or an agreement to accept money is concluded and is not dependent on the
performance of the illegal promise by the receiver. The receiver of money will be treated to
have committed the offence even when he defaults in the illegal bargain. Hence the criminal
liability incurred by a Member of Parliament who has accepted bribe for speaking or giving
his vote in Parliament in a particular manner arises independently of the making of the
speech or giving of vote by the Member and the said liability cannot be regarded as a liability
in respect of anything said or any vote given in Parliament. Hence the protection granted
under Article 105(2) cannot be invoked by any of the appellants to claim immunity from
prosecution.

The Judges constituting the minority felt that although at common law, offering of bribe to or
giving of bribe by the Members of Parliament was not treated as an offence but as a matter of
breach of privilege of the House of Commons by the English courts at the commencement of
the Constitution in 1950, this would not necessarily mean that the courts in India are
precluded from trying the offence of bribery, if it were to be treated as an offence.
3. Right of publication of proceedings

Part two of Article 105(2) provides that no person shall be liable in respect of the publication
by or under the authority of the House of Parliament of any report, paper, votes or
proceedings. The Parliamentary Proceedings (Protection of Publication) Act, 1956 provided
that no person shall be liable to any proceedings, whether civil or criminal, in any court in
respect of the publication of a substantially true report of the proceedings of either House of
Parliament unless it is proved that the publication of such proceedings was expressly ordered
to be expunged by the Speaker.9 This position has been made much stronger by the insertion
of Article 361-A by the Constitution (44th Amendment) Act, 1978.10

With regard to the other privileges, the following are recognised under the Rules of
Procedure and Conduct of Business in Lok Sabha11 as well as by certain laws:

1. Freedom from arrest of Members in civil cases during continuance of the Session of the
House and 40 days before its commencement and 40 days after its conclusion.12

2. Exemption of Members from liability to serve as jurors.13

3. Right of the House to receive immediate information of the arrest, detention, conviction,
imprisonment and release of the Member.14

4. Prohibition of arrest and service of legal process within the precincts of the House without
obtaining the permission of the Speaker.15

5. Prohibition of disclosure of the proceedings or decisions of a secret sitting of the House.16

6. All Parliamentary Committees are empowered to send for persons, papers and records
relevant for the purpose of the enquiry by a committee.17

7. A Parliamentary Committee may administer oath or affirmation to a witness examined

before it.18

8. The evidence tendered before a Parliamentary Committee and its report and proceedings
cannot be disclosed or published by anyone until these have been laid down on the table of
the House.19

9. The right to prohibit the publication of its debates and proceedings.20

10. Right to exclude strangers from the House.21

11. Right to commit persons for breach of privilege or contempt of the House, whether they
are members of the House or not.

Fundamental rights and legislative privileges

As legislative privileges are not codified in India, the question whether fundamental rights
control the privileges or not was considered by the Supreme Court in some cases.
In M.S.M. Sharma v. Sri Krishna Sinha22 the following legal principles were laid down by
the Supreme Court on this issue:

1. As on 26-1-1950, the privilege of prohibiting the publication of its debates belonged to the
House of Commons and as such by operation of Article 194(3), the Indian legislatures do
have this privilege.

2. Article 194 is not subject to Article 19. Article 19(1)(a) is a general provision and Article
194 is a special provision. As a general provision cannot override a special provision, Article
194 will have overriding effect. To resolve conflict, if any, between these two articles, the
rule of harmonious construction must be applied.

3. Deprivation of personal liberty as a result of proceedings before a Committee of Privileges

was deprivation in accordance with the procedure established by law and hence Article 21 is
not violated.

Courts and legislative privileges

When one examines the relationship between the courts and legislatures, the questions as to
the authority to decide the existence of a privilege and as to whether the courts could
examine the validity of a committal by a legislature for its contempt or breach of privilege
etc. have to be addressed.23 In fact, the situations under which the legislatures claim
privileges in India bring the courts in the arena quite often. In India, the legislatures may
claim the privileges in three situations: (1) when the Constitution grants it specifically; (2) it
has been created by a law of the legislature; (3) it was enjoyed by the House under Article
105(3) or 194(3).24 No doubt the courts in these circumstances cannot be denied any role in
this area.

Some of the above-stated issues were examined by the Supreme Court in Kesava Singh In
re25. In the majority opinion in this case (6:1), the following propositions of constitutional
interpretation were laid down:

1. The power of construing Article 194 (also Article 105) in regard to the nature, scope and
effect of the powers of the House rests with the judiciary of the country.

2. Under Article 226, the High Court has power to scrutinise the orders issued by the
legislatures as the expression "any authority" in Article 226 includes the legislature also.

3. Article 211 provides unambiguously that the conduct of a Judge in the discharge of his
duties can never become the subject-matter of any action taken by the House in the exercise
of its powers or privileges conferred by the latter part of Article 194(3).

4. Article 212 ousts the jurisdiction of the courts in cases of regulation of procedure inside
the House only and it does not act as a limitation on the powers of the court to test the
legality of action.

5. The fact that the first part of Article 194(3) refers to future laws defining the privileges as
being subject to the fundamental rights is a significant factor in construing the latter part of
Article 194. Such a legislation would be "law" within the meaning of Article 13 and the
courts will be competent to examine its validity vis-a-vis fundamental rights.

6. In England, at one time, the House of Commons was the highest court of justice. Because
of this, the House of Commons came to be regarded as a superior court of record, with the
result that the general warrants issued by the other superior courts were held to be exempt
from the scrutiny by the courts in England by treating these warrants as conclusive. In India,
the Legislative Assemblies never discharged any judicial function and their historical and
constitutional background does not support their claim to be regarded as courts of Record in
any sense.

This case does not settle the law of privileges in India for three reasons. Firstly, the
relationship between fundamental rights in general26 and the legislative privileges was not
spelt out clearly.27 Secondly, legally speaking, advisory opinions rendered by the Supreme
Court under Article 143 are not binding on the President and this factor destroys the binding
nature of a judicial precedent.28 Thirdly, the principles of law laid down by the Supreme
Court in this advisory opinion are totally based upon the five questions that were limited to
the facts and the circumstances of the case set out in the presidential reference. If the facts are
different then the principles of law have to be laid down differently.29

On the whole, the law relating to legislative privileges is in an unsatisfactory position. As the
legislative privileges are encroaching upon the freedoms guaranteed by Part III of the
Constitution and also coming into clash with the powers of the courts, there is need to codify
these privileges as immediately as possible defining the scope of the privileges including the
"breach of privileges" and the "contempt of the House". It is to be noted that the Constitution
of India already contains certain immunities and prerogatives for the President and the
Governors under Article 361 and hence there should be no difficulty in giving recognition to
certain legislative privileges. Further, it may be pointed out that the argument that the
codification leads to curtailment of privileges is wholly misconceived as the privileges of the
British House of Commons up to 1950 are clearly laid down and the same can be codified
within the framework of the Indian Constitution. While codifying the legislative privileges
under Articles 105(3) and 194(3), the following factors may be taken into consideration:

I. The constitutional position of the British Parliament and the Indian Parliament

Article 105(3) says with regard to the other powers, privileges and the immunities of each
House of Parliament and of the Members and the committees that they shall be those of the
House of Commons of the United Kingdom till a law is enacted in this regard by the Indian
Parliament.30 Though a reference is made to the House of Commons of the British
Parliament, the following differences between the British and Indian Parliament are to be
noticed.

The dominant feature of the British Constitution is the doctrine of parliamentary sovereignty.
It means that Parliament has the right to make or unmake any law whatsoever. Parliament has
power to legislate on any topic and the courts in England are under a duty to apply the
legislation made by Parliament and they cannot hold an Act of Parliament to be invalid or
unconstitutional. It implies that the doctrine of unconstitutionality is alien to the British legal
system so far as the parliamentary enactments are concerned.31

The Indian Parliament is the creature of a written Constitution which implies that Parliament
has to work within the limitations imposed on it by the written document as this document is
the fundamental law of the country. The legislative power of the Indian Parliament is subject
to the constitutional provisions.32 Parliament has no power to legislate beyond the assigned
subjects.33 Parliament and State Legislatures are prohibited from enacting any law
inconsistent with the fundamental rights provided by Part III of the Constitution.34
Parliament can delegate law-making powers to the executive to a limited extent only.35 The
legislative power of Parliament in the area of freedom of trade, commerce and intercourse
throughout the territory of India is subject to certain limitations.36 The taxing powers of
Parliament are subject to certain restrictions.37

The above-stated differences show that whereas the British Parliament is sovereign and
supreme, the Indian Parliament is not supreme in that sense.38 This fundamental difference
differentiates the constitutional position of both the institutions. This difference has
necessarily to be taken into consideration while codifying legislative privileges.

II. The constitutional position of Article 21

Article 21 says that no person shall be deprived of his life or personal liberty except
according to the procedure established by law. The meaning, content and implications of
Article 21 have undergone changes since 1950 because of human rights jurisprudence
adopted by the activist judiciary in India. In 1950, "law" in Article 21 was interpreted in the
sense of "lex" but not in the sense of "jus" implying thereby that any man-made law was
sufficient to satisfy the requirement of "procedure established by law" in depriving the life or
personal liberty under Article 21 provided the procedure laid down in such law was
followed.39 This position was continued for 28 years. But in 1978,40 the meaning of
"procedure established by law" was interpreted by the Apex Court as containing "fair, just
and reasonable" procedure but not any type of procedure. It was further laid down that
Articles 14, 19 and 21 are not mutually exclusive, implying that a law prescribing the
procedure for depriving the "life" or "personal liberty" must satisfy the test of reasonable
classification as laid down in Article 14, the test of reasonableness as laid down in Article 19
and the test of a fair, just and reasonable procedure as envisaged in Article 21. Further, in
1982 "law" in Article 21 is interpreted by the Supreme Court as including "ordinance" as
imposed by the President under Article 123.41

If any person is deprived of his personal liberty for breach of privilege or contempt of the
House which is not mentioned either in Article 105(1) or 105(2), obviously such deprivation
is not under any law as no law has yet been enacted under Article 105(3) in this regard. The
privileges that are mentioned under the rules framed by Parliament42 or State Legislatures43
do not have the status of law. As such, denial of right emanating from breach of these
privileges amounts to deprivation of personal liberty without a valid law44 as envisaged
under Article 21. Obviously the common law of England45 and Erskine Thomas May's
Parliamentary Practice cannot be regarded as law within the meaning of Article 21 of the
Constitution. Though it was explained away in some quarters that rules framed by the
legislatures under their rule-making power is "law" within the meaning of Article 21,46 these
rules framed for regulating the procedure and conduct of the business of the legislatures
cannot claim the status of law on legislative privileges as the law-making power in respect of
legislative privileges is expressly vested in Parliament and State Legislatures by virtue of
constitutional provisions.47 This view gets strength from the fact that the rules of the
legislatures containing the procedures are immune from judicial scrutiny by virtue of Articles
122 and 212, whereas a law and procedure enacted under the legislative entries is subject to
basic constitutional discipline.

III. The position of the judiciary in the United Kingdom and in India

The following fundamental differences between the Indian and English judiciary make a case
in favour of the Indian judiciary to claim greater scope of review power of legislative and
executive acts compared to British courts.

There exists in England the principles of sovereignty of Parliament due to which courts in
England have no power to apply the doctrine of unconstitutionality to parliamentary Acts.
The courts are competent to review the decisions of the executive48 and not the
parliamentary law under which the decision is taken.49 In the judicial review of
administrative action certain common law grounds are available to the courts in England.50
This shows that the English courts have very limited powers in reviewing the legislative and
executive acts.

In India, a written Constitution is working. It is regarded as the fundamental law of the

country and all the legislative and executive acts must be consistent with this fundamental
law. The power of judicial review is vested in the judiciary by virtue of Articles 13, 32, 136,
226, 299, 300 and 311. Therefore the doctrine of unconstitutionality is part of the
constitutional scheme in India.51 The fundamental rights, operating as restrictions on the
legislative and executive acts, the doctrine of judicial review and the limited amending power
of Parliament are regarded as the basic features of the Indian Constitution.52 The
interpretation of the Constitution is vested in the Supreme Court. The Supreme Court is the
protector and guarantor of the fundamental rights,53 and is playing the role of a "sentinel on
the qui vive"54. In addition to the constitutional remedies available, the common law
grounds are also available to contest the legislative and executive acts before the courts.
Therefore the power of judicial review is established on a much firmer ground in India than
in England.55

IV. The theory of limited government, rule of law and dilution of executive privilege

Every democratic written Constitution is based on the theory of limited government which
emphasises that the powers of various organs of the Government are limited by the
Constitution. To keep the various organs within the bounds, the Constitution vested powers
in the judiciary. The courts apply the "rule of law" values in preventing the Government from
abusing the powers conferred on it by various laws. As a result of this, the traditional
executive privileges have been diluted to a large extent. In India, the scope of the defence of
sovereign immunity was reduced in favour of the individual.56 The State was held to be
bound by a statute unless it was exempted expressly or by necessary implication.57 The
governmental privilege to withhold documents (under Section 123 of the Indian Evidence
Act, 1872) was diluted and the courts were held to have the right to inspect the document and
decide whether the document in question needs the protection of Section 123 of the Indian
Evidence Act, 1872.58 With a view to protect the persons who act upon the promises made
by the Government and thereby altered their positions the doctrine of promissory estoppel
has been applied against the Government.59 In awarding governmental contracts the
governmental discretion was made subject to review under Article 14 to ensure fairness in
administration.60

The constitutional principles that caused the dilution of the traditional privileges of one organ
of the Government will have their own impact on the privileges of the other organs as well
and this cannot be ignored while codifying legislative privileges in India.

Fifty years have elapsed since Independence and the experience gained in the working of the
Constitution in this long period is sufficient to guide the process of codification of legislative
privileges. It is, therefore, urged that steps to codify parliamentary privileges in India should
be initiated at the earliest as otherwise it may become very difficult for us to fall back on this
ancient British practice which may not have any relevance either in England or in India
today.

*   Assistant Professor, Department of Law, Andhra University, Dr B.R. Ambedkar

Postgraduate Centre. Return to Text

1. The situation makes the customs and precedents on parliamentary privileges that have
become part of the English common law as detailed in Parliamentary Practice by Erskine
May a schedule to the Indian Constitution defining the parliamentary privileges. G.S. Pathak,
"Parliamentary Democracy" (Bombay, Bharatiya Vidya Bhavan, 1971) p. 26. Return to Text
2. H.M. Seervai, Constitutional Law of India Vol. II (Bombay, Tripathi, 1993) pp. 2180-81.
Return to Text
3. Sir John Eliot case, 3. State Trials 294 - quoted in M.P. Jain Indian Constitutional Law
(Bombay, Tripathi, 1987) p. 56. Return to Text
4. The Bill of Rights, 1688 laid down that the freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any court or place outside
Parliament. Return to Text
5. (1970) 2 SCC 272. In this case, the appellants, admirers and followers of Jagadguru
Shankaracharya of Puri filed a suit in the Delhi High Court for a decree for Rs 26,000 as
damages for defamation by the respondents on the floor of the Lok Sabha during a calling-
attention motion. The defamatory statements attributed to the respondents had accused
the Guru for his views on untouchability in unparliamentary language and depicted him as a
"leperous dog". Return to Text
6. Ibid at 274. Return to Text
7. (1998) 4 SCC 626. In this case, some Members of Parliament and MLAs were accused of
entering into a conspiracy by taking bribes to vote against a no-confidence motion brought
against the then Central Government. Their plea of immunity from prosecution based on
Article 105(2) was rejected by the Delhi High Court. On appeal, the majority ruled in their
favour. The majority view was taken by S.P. Bharucha and Rajendra Babu, JJ. with whom
G.N. Ray, J. concurred in a separate opinion. S.C. Agarwala and Dr A.S. Anand (as he then
was) JJ. held a dissenting opinion. Return to Text
8. (1998) 4 SCC 626 at 708. Return to Text
9. This Act was repealed by the Congress Government during the Emergency in 1976.
However, the Parliamentary Proceedings (Protection of Publication) Act, 1977 was passed by
Parliament and it received the assent of the President on 18-4-1977. Return to Text
10. w.e.f. 20-6-1979. Return to Text
11. See Subhash C. Kashyap, Our Parliament (New Delhi, National Book Trust, 1995) at pp. 234-
36. Return to Text
12. Section 135-A, Code of Civil Procedure, 1908. Return to Text
13. Supra Note 11. Return to Text
14. Rules 229 and 230 of the Rules of Procedure and Conduct of Business in Lok Sabha (New
Delhi, Lok Sabha Secretariat, 1989), as quoted in Subhash C. Kashyap, supra note 11. Return
to Text
15. Rules 232 and 233 Ibid. Return to Text
16. Rule 252 Ibid. Return to Text
17. Rules 269 and 270 Ibid. Return to Text
18. Rule 272 Ibid. Return to Text
19. Rule 275 Ibid. Return to Text
20. Rule 249 Ibid. Return to Text
21. Rule 248 Ibid. Return to Text
22. AIR 1959 SC 395. The facts of this case were that M.S.M. Sharma, the Editor of Searchlight,
(from Patna) had published in his paper the full speech delivered by a Member at the sitting
of the Bihar Assembly including the portions which had been expunged by the Speaker. For
publishing the expunged portions, the petitioner was asked to show cause through a notice
as to why action should not be taken against him. The petitioner challenged the notice as
violative of Article 19(1)(a) and Article 21 of the Constitution. Return to Text
23. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) p. 66. Return to Text
24. Ibid at p. 68. Return to Text
25. AIR 1965 SC 745. This reference was a sequel to the passing of an order by an
unprecedented Full Bench of 28 Judges, staying, under Article 226, the implementation of
the U.P. Assembly Resolution ordering two Judges of the Allahabad High Court to be
brought into custody before the Bar of the House to explain why they should not be
punished for the contempt of the House. The two Judges had admitted the habeas corpus
petition and granted bail to one Mr Kesava Singh who was undergoing imprisonment in
pursuance of the Assembly Resolution declaring him guilty of the breach of privilege. The
resolution of the Assembly and the stay order issued by the Full Bench resulted in a
constitutional stalemate. Consequently the President referred the matter under Article 143
to the Supreme Court for its opinion. Return to Text
26. It was made clear that so far as Articles 21 and 22 are concerned, any privileges etc. which
are claimed must be consistent with the articles in the context of Article 208 - V.N. Shukla,
Constitutional Law, 1965, An. Sur. Ind.L., (1966), p. 20. Return to Text
27. Ibid. Return to Text
28. H.M. Seervai, Constitutional Law of India, Vol. II (Bombay, Tripathi, 1993) p. 2175. Return to
Text
29. Ibid at p. 2173. Return to Text
30. Unamended Article 105(3). Return to Text
31. In substance, parliamentary sovereignty consists of a rule which governs the relationship
between the courts and legislatures. See Wade and Philips, Constitutional and
Administrative Law (London, ELBS: 1978) p. 59 (9th Edn.). Return to Text
32. Article 245(1). Return to Text
33. Article 246 read with Schedule VII of the Constitution. Return to Text
34. Article 13. Return to Text
35. Delhi Laws Act 1912, In re, AIR 1951 SC 332; Harakchand Ratanchand Banthia v. Union of
India, (1969) 2 SCC 166; M.K. Papiah v. Excise Commr., (1975) 1 SCC 492; Harishankar Bagla
& Sons v State of M.P., AIR 1954 SC 465; Makhan Singh Tarsikka v. State of Punjab, AIR 1964
SC 381; Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25; Rajnarain Singh v. Chairman,
PAC, AIR 1954 SC 569; Jalan Trading Co.(P) Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 691;
Devi Das Gopal Krishan v. State of Punjab, AIR 1967 SC 1895; Basant Kumar Sarkar v. Eagle
Rolling Mills Ltd., AIR 1964 SC 1260. Return to Text
36. Articles 301-304. Return to Text
37. Article 289. Return to Text
38. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) pp. 74-75. Return to Text
39. A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Different freedoms guaranteed by Part III
of the Constitution were treated as separate islands and one cannot be linked with the other
as per the view of the Apex Court in this case. Return to Text
40. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; The movement for linking articles
guaranteeing freedoms was started in 1970 itself when the Apex Court linked Article 31(2)
with Article 19(1)(f) in Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248. Return
to Text
41. A.K. Roy v. Union of India, (1982) 1 SCC 271. Return to Text
42. Article 118(1). Each House of Parliament may make rules for regulating, subject to the
provisions of this Constitution, its procedure and conduct of its business. Return to Text
43. Article 208(1). A House of the legislature of a State may make rules for regulating, subject to
the provisions of this Constitution, its procedure and conduct of its business. Return to Text
44. A valid law, in the constitutional sense, is one which is enacted by a competent legislature
under its legislative power in accordance with Articles 245, 256 read with Schedule VII of the
Constitution. Return to Text
45. Even in England, parliamentary privileges were not codified and they are largely based upon
custom and precedent - See S.L. Shakdhar, The Codification of Legislative Privileges in Alice
Jacob (Edn.), Constitutional Developments Since Indepedence (New Delhi, ILI, 1975) p. 136.
Return to Text
46. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) p. 70. Return to Text
47. Articles 105(3) and 194(3), Entry 74 of the Union List, Entry 39 of the State List, Schedule VII
of the Constitution. Return to Text
48. De Smith's, Judicial Review of Administrative Action (London, Stevens and Sons, 1980) p. 28.
Return to Text
49. The proposition is that the law is valid but the action taken under such law is not/may not.
Return to Text
50. They are: 1. doctrine of ultra vires, 2. abuse of discretion, 3. irrelevent consideration, 4.
improper purpose, 5. error of law, 6. unauthorised delegation, 7. violation of principles of
natural justice etc. See Wade and Phillips, Constitutional and Administrative Law (London,
ELBS, 1978) pp. 587-605. Return to Text
51. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) pp. 829-840. Return to Text
52. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Minerva Mills Ltd. v. Union of
India, (1980) 3 SCC 625. Return to Text
53. Romesh Thappar v. State of Madras, AIR 1950 SC 124 at 126. Return to Text
54. State of Madras v. V.G. Row, AIR 1952 SC 196 at 199. Return to Text
55. Some of the Common law grounds available in India are: 1. mala fide, 2. improper purpose,
3. irrelevant consideration, 4. leaving out relevant consideration, 5. colourable exercise of
power, 6. condition precedent, 7. acting mechanically, 8. acting under dictation etc. See Jain
and Jain, Principles of Administrative Law (Bombay, Tripathi, 1986) pp. 550-611. Return to
Text
56. State of Rajasthan v. Vidyawati, AIR 1962 SC 933; Shyam Sunder v. State of Rajasthan,
(1974) 1 SCC 690; Satya Wati Devi v. Union of India, AIR 1967 Del 98; State of Orissa v.
Padmalochan Panda, AIR 1975 Ori 41; Khatri (III) v. State of Bihar, (1981) 1 SCC 635; Rudul
Sah v. State of Bihar, (1983) 4 SCC 141; Sebastian M. Hongray v. Union of India, (1984) 3 SCC
82; Saheli, a Women's Resources Centre v. Police Commr., Delhi, (1990) 1 SCC 422; Nilabati
Behera v. State of Orissa, (1993) 2 SCC 746. Return to Text
57. Supdt. and Remembrancer of Legal Affairs, W.B. v. Corpn. of Calcutta, AIR 1967 SC 997.
Return to Text
 58. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; State of U.P. v. Raj Narain, (1975) 4
SCC 428; S.P. Gupta v. Union of India, 1981 Supp SCC 87. Return to Text
59. Amar Singhji v. State of Rajasthan, AIR 1955 SC 504; Union of India v. Anglo Afghan
Agencies, AIR 1968 SC 718; Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2
SCC 409; Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd., (1983) 3 SCC 379; Union of
India v. Godfrey Philips India Ltd., (1985) 4 SCC 369. Return to Text
60. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489. Return
to Text

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Article

P.V. NARASIMHA RAO V. STATE : A

CRITIQUE
by Balwant Singh Malik*

Cite as : (1998) 8 SCC (Jour) 1

I. Introduction

The facts involved in the Constitution Bench

decision in P.V. Narasimha Rao v. State[1]  (JMM
bribery case) are that in 1991 election to the Lok
Sabha, Congress (I) 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[2] . The 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[3]  the Privy Council approving the
statement of law by Vardachariar, J. in the Federal
Court decision in Hori Ram Singh (Dr) v.
Emperor[4]  observed:

"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[5]  agreeing with another Constitution
Bench decision in Matajog Dobey v. H.C.
Bhari[6]  and in Amrik Singh v. State of Pepsu[7] 
observed:

"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[8] .' " (emphasis supplied)

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[9] ,
unaffected by any undue influence. The giving of
vote under the 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[10] 
interpreting the expression "in Parliament"
appearing in clause (2) of 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[11]  has
held that the immunity available to a speech made
by a Member 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[12] . In that
case, one Hallet 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[10] already noticed.
Some persons who held the Sankaracharya in high
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[11] already 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[13]  in respect
of the President of India and Governors of States.

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[14]  has
observed that:

"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[8] observed:

"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[16]  states the law as

under:

"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[17] .
According to most of 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[19]  as

far back as in 1875, 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[20] . Besides, Section
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[21]  Wilson,
C.J. held that 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[22]  the Speech and

Debate Clause was interpreted so as to disallow
the motive for performing legislative acts from
being inquired into during criminal prosecutions.
In United States v. Brewster[23]  it was held that
the 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[25]  in the case of the
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[26] , after enumerating the main
privileges and immunities 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[27]  which dealt with the case
of preventive 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[29]  also followed the precedent of
the House of Commons in Captain Ramsay case.

In Nambiar case[30]  the Constitution Bench

besides approving the two Madras High Court
decisions[31]  and one of the Calcutta High Court
in Ansumali Majmudar v. State[32]  made a
noteworthy observation:

"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[33]  and others in the very first case of
incurring 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. Return to Text