P.V. NARASIMHA RAO V.

STATE : A CRITIQUE

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

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