S.C. Agrawal, J.

Dr. A.S. Anand, J.

1. Whether by virtue of Article 105 of the Constitution a Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal Court, and whether a Member of Parliament is a "public servant" falling within the purview of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the 1988 Act). These are the two questions which have come up for consideration before this Bench in these matters.

2. In the General Election for the Tenth Lok Sabha held in 1991 the Congress (I) party emerged as the single largest party and it formed the Government with P.V. Narasimha Rao (hereinafter referred to as `A-1) as the Prime Minister. In the Monsoon Session of Lok Sabha in July, 1993 a `No-Confidence Motion was moved against the Government by Shri Ajay Mukhopadhyaya, a CPI (M) M.P. At that time the effective strength of the House (Lok Sabha) was 528 and Congress (I) party had 251 members. It was short by 14 members for simple majority. The Motion of No-Confidence was taken up for discussion in the Lok Sabha on July 26, 1993 and the debate continued till July 28, 1993. The motion was defeated with 251 members voting in favour of the motion, while 265 voting against it. On February 28, 1996, one Shri Ravindra Kumar of Rashtriya Mukti Morcha filed a complaint dated February 1, 1996 with the Central Bureau of Investigation (for short `CBI) wherein it was alleged that in July, 1993 a criminal conspiracy was hatched by A-1, Satish Sharma (hereinafter referred to as `A-2), Ajit Singh (hereinafter referred to as `A-13), Bhajan Lal (hereinafter referred to as `A-14), V.C. Shukla, R.K. Dhawan and Lalit Suri to prove a majority of the Government on the floor of the House on July 28, 1993 by bribing Members of Parliament of different political parties, individuals and groups of an amount of over Rs. 3 crores and that in furtherance of the said criminal conspiracy a sum of Rs. 1.10 crores was handed over by the aforementioned persons, except A-15, to Suraj Mandal (hereinafter referred to as `A-3). On the basis of the said complaint the CBI registered four cases under Section 13(2) read with Section 13(1)(d)(iii) of the 1988 Act against A-3, Shibu Soren (hereinafter referred to as `A-4), Simon Marandi (hereinafter referred to as `A-5) and Shailendra Mahto (hereinafter referred to as `A-6), Members of Parliament belonging to the Jharkhand Mukti Morcha party (for short `JMM). Subsequently in pursuance of the order dated May 24, 1996 passed by the Delhi High Court in Civil Writ Petition No. 23/96 another case was registered on June 11, 1996 against A-1, A-2, A-3, A-4, A-5, A-6, A-14, A-15, V.C. Shukla, R.K. Dhawan, Lalit Suri and others under Section 120-B, IPC and Sections 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act. After completing the investigation, the CBI submitted three charge-sheets dated October 30, 1996, December 9, 1996 and January 22, 1997 in the Court of Special Judge, New Delhi. In the first charge-sheet dated October 30, 1996 it was stated that investigation had revealed that A-1, A-2, A-3, A-4, A-5, A-6, Buta Singh (hereinafter referred to as `A-7), and other unknown persons entered into a criminal conspiracy to defeat the `No-Confidence Motion by resorting to giving and accepting of gratification as a motive or reward and in pursuance thereof four Members of Parliament belonging to JMM (A-3, A-4, A-5 and A-6) accepted illegal gratification to vote against the Motion and because of their votes and some other votes the Government led by A-1 survived. It was also stated in the charge-sheet that investigation has also revealed that the four Members of Parliament belonging to JMM had been bribed in crores of rupees for voting against the `No-Confidence Motion. The said charge-sheet was filed against A-1, A-2, A-3, A-4, A-5, A-6 and A-7 and other unknown persons in respect of offences under Section 120-B, IPC and Sections 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder. The second charge-sheet dated December 9, 1996 was in the nature of a supplementary charge-sheet wherein it was stated that investigation has further revealed that V. Rajeshwar Rao (hereinafter referred to as `A-8), N.M. Revanna (hereinafter referred to as `A-9), Ramalinga Reddy (hereinafter referred to as `A-10), M. Veerappa Moily (hereinafter referred to as `A-11), D.K. Audi Kesavulu (hereinafter referred to as `A-12) and M. Thimmegowda (hereinafter referred to as `A-13) were also parties to the criminal conspiracy which is the subject-matter of the first charge-sheet filed on October 30, 1996 and in pursuance to the said criminal conspiracy they had arranged funds and bribed the four JMM MPs as the motive or award to secure their support to defeat the `No-Confidence Motion and thereby committed the offences punishable under Section 120-B, IPC and Sections 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder along with the original seven accused. In the third charge-sheet dated January 22, 1997, which was described as `Supplementary Charge-sheet No. 2, it was stated that further investigation has been carried on under Section 173(8) of Cr.P.C. and as a result identity of remaining accused persons has been established and that they are A-14, A-15, Ram Lakhan Singh Yadav (hereinafter referred to as `A- 16), Ram Sharan Yadav (hereinafter referred to as `A-17), Roshan Lal (hereinafter referred to as `A-18), Abhay Pratap Singh (hereinafter referred to as `A-19), Anadi Charan Das (hereinafter referred to as `A-20), Haji Gulam Mohd. Khan (hereinafter referred to as `A-21) and late G.C. Munda (hereinafter referred to as `A-22). It was stated that even after securing the support of four JMM MPs in the manner stated in the first charge-sheet dated October 30, 1996 and second charge-sheet dated December 9, 1996 the Congress (I) Government still required the support of some more MPs and that with this objective the Congress (I) led by A-1 was making efforts to win the support of some other MPs including MPs belonging to Janta Dal (Ajit Group) (for short `JD(A)). In the charge-sheet it was also stated that A-14, A-15, A-16, A-17, A-18, A-19, A-20, A-21 and A-22 were parties to the criminal conspiracy along with A-1 to A-13 already named in the earlier two charge- sheets and in pursuance to the said criminal conspiracy A-14 had arranged funds and had paid bribes to A-15 and the seven MPs of the breakaway JD(A) as a motive or award to secure their support to defeat the `No-Confidence Motion and thereby committed the offences punishable under Section 120-B, IPC and Sections 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder.

3. An application was submitted by A-6 (Shailendra Mahto) under Section 306, Cr.P.C. for grant of pardon for being treated as an approver. The said application was referred to the Magistrate for recording his statement under Section 164, Cr.P.C. and after considering the said statement the Special Judge, by order dated April 5, 1997, allowed the application of A-6 and tendered pardon to him on the condition of his making a full and true disclosure of all the circumstances within his knowledge relating to the offences of every other person concerned, whether as a principal or abettor in the commission of the offences under the charge-sheets. After hearing the arguments on charges, the Special Judge passed the order dated May 6, 1997 wherein he held that there is sufficient evidence on record to justify framing of charges against all the appellants. Insofar as A-1, A-2, A-7 and A-8 to A-14 are concerned, the Special Judge held that there is sufficient evidence on record to justify framing of charges under Section 120-B, IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the 1988 Act and also for substantive offence punishable under Section 12 of the 1988 Act against all of them. So far as A-3, A-5 and A-15 to A-21 are concerned, the Special Judge held that there is sufficient evidence on record to justify framing of charges under Section 120-B, IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the 1988 Act and as well as charges for substantive offence punishable under Section 7 and Section 13(2) read with Section 13(10(d) of the 1988 Act against all of them. The Special Judge also held that there is prima facie evidence of commission of offence under Section 193, IPC by accused Nos. A-3 to A-5.

4. Before the Special Judge, an objection was raised on behalf of the accused persons that the jurisdiction of the Court to try the case was barred under Article 105(2) of the Constitution because the trial is in respect of matters which relate to the privileges and immunities of the House of Parliament (Lok Sabha) and its Members inasmuch as the foundation of the charge-sheets is the allegation of acceptance of bribe by some Members of Parliament for voting against the `No-Confidence Motion and that the controversy to be decided in this case would be in respect of the motive and action of Members of Parliament pertaining to the vote given by them in relation to the `No- Confidence Motion. The Special Judge rejected the said contention on the view that in the present case voting pattern of the accused persons was not under adjudication and they were sought to be tried for their illegal acts committed outside Parliament, i.e., demanding and accepting the bribe for exercising their franchise in a particular manner, and the accused persons are not being prosecuted for exercising their right of vote but they are being prosecuted on the allegations that they while holding a public office demanded and accepted illegal gratification for exercising their franchise in a particular manner which is an offence punishable under the 1988 Act and that Article 105 of the Constitution does not provide any protection to the accused persons. Another contention that was urged before the Special Judge was that a Member of Parliament is not a public servant for the purpose of the 1988 Act and as such giving and taking of the alleged illegal gratification does not amount to any offence punishable under the provisions of the 1988 Act and there cannot be any offence of conspiracy of giving and taking of bribe by a Member of Parliament. The said contention was rejected by the Special Judge on the view that the question whether a Member of Parliament is a public servant is concluded by the decision of the Delhi High Court in the cases of L.K. Advani v. Central Bureau of Investigation, reported in 1997 Cri LJ 2559, wherein it has been held that Member of Parliament is a public servant under the 1988 Act. It was also urged before the Special Judge that the case could not be proceeded against the accused persons since previous sanction for prosecution under Section 19 of the 1988 Act had not been obtained. The said contention was also rejected by the Special Judge on the ground that no previous sanction of prosecution for an accused under Section 19 is necessary if he has ceased to hold a public office which was allegedly misused by him and in the present case at the time of filing of the charge-sheets and on the date of taking of cognizance by the Court Tenth Lok Sabha had come to an end and after the Elections in 1996 and the accused persons who were the members of the Tenth Lok Sabha had ceased to hold the office as members of the said Lok Sabha and therefore under law no sanction for their prosecution is required and furthermore accused persons are sought to be tried for criminal conspiracy under Section 120-B, IPC read with Sections 7, 12, 13(2) of the 1988 Act as well as the substantive offences and that according to Section 19 of the 1988 Act sanction is required only in respect of the offences punishable under Sections 7 and 13 and these substantive offences were allegedly committed by Members of Parliament who had accepted the illegal gratification for voting against the `No-Confidence Motion and that no sanction is required in the case of a Member of Parliament or a Member of the State Legislature though he is a public servant because there is no sanctioning authority qua him. Revision petitions filed by the appellants against the said order of the Special Judge have been dismissed by the impugned judgment of the Delhi High Court. In the High Court the following contentions were urged by the appellants :-

(I) Even if the allegations of the prosecution were accepted, the Court would have no jurisdiction to fasten any criminal liability on the accused persons as whatever allegedly happened was in respect of votes given by some of them in the Lok Sabha and that, in any case, whatever transpired, touched the privileges of the House within the meaning of clauses (2) and (3) of Article 105 of the Constitution.

(II) Members of Lok Sabha hold no office and as such are not public servants within the meaning of Section 2(c) of the 1988 Act and that for that reason the 1988 Act would not apply to the alleged acts of omission and commission of the accused persons.

(III) Even if it be taken that Members of Lok Sabha do fall within Section 2(c) of the 1988 Act and are thus taken to be public servants, yet the Act would not apply for the simple reason that in the case of Lok Sabha Members there is no authority competent to remove them from their office within the meaning of Section 19(1)(c) of the 1988 Act.

(IV) In the case of A-1, A-9, A-10, A-11 and A-13 there is nothing to show that they had conspired or were part of any conspiracy.

(V) Sanction was required under Section 197, Cr.P.C. to prosecute A-1.

(VI) No case is made out for framing the charges against the appellants.

5. While dealing with the first contention based on clauses (2) and (3) of Article 105 of the Constitution the High Court has held that to offer bribe to a Member of Parliament to influence him in his conduct as a member has been treated as a breach of privilege in England but merely treating the commission of a criminal offence as a breach of privilege does not amount to ouster of jurisdiction of the ordinary Court to try penal offences and that to claim that in such matters the Courts would have no jurisdiction would amount to claiming a privilege to commit a crime. The High Court has also pointed out that four notices of a question of privilege dated February 26 and 27, 1996 were given by four members of Lok Sabha, namely, Sarva Shri Jaswant Singh, Inderjit Gupta, Arjun Singh and Jagmeet Singh Brar against A-1 and the four members belonging to JMM (A-3 to A-6). The notices were forwarded to the said accused for comments and after discussion on the said notices during which members of all parties expressed their views the Speaker disallowed the notice given by Shri Arjun Singh on March 11, 1996 and the notices of a question of privilege given by Sarva Shri Jaswant Singh, Indrajit Gupta and Jagmeet Singh Brar were disallowed by the Speaker on March 12, 1996. The second submission that a Member of Parliament is not a public servant under Section 2(c) of the 1988 Act was rejected by the High Court on the view that that a Member of Parliament holds an office and is a public servant falling under clause (viii) of Section 2(c) of the 1988 Act. The third contention that the 1988 Act is not applicable to a Member of Parliament since there is no authority competent to remove him from his office for the purpose of granting sanction under Section 19(1)(c) of the 1988 Act was also not accepted by the High Court. It was held in the absence of an authority to remove a Member of Parliament does not mean that the 1988 Act would not be applicable to him. As regards the requirement of sanction under Section 197, Cr.P.C. as against A-1, the High Court held that A-1 was a party to actual bribing of Members of Parliament and that it is no job of a Prime Minister to hatch or be a party to such a criminal conspiracy and that what A-1 did cannot fall within the ambit of the words "while acting or purporting to act in the discharge of his official duty" in Section 197, Cr.P.C. The High Court thereafter examined the material on record in relation to each accused person and found that there was no ground for interfering with the order passed by the Special Judge.

6. Feeling aggrieved by the said judgment of the High Court, the appellants have filed these appeals. The appeals were heard by a Bench of three Judges. After hearing the arguments of the learned counsel, the following order was passed by that Bench on November 18, 1997:-

"Among other questions, a substantial question of law as to the interpretation of Article 105 of the Constitution of India is raised in these petitions. These petitions are, therefore, required to be heard and disposed of by a Constitution Bench. Accordingly, the Registry is directed to place these petitions before Honble the chief Justice for necessary orders."

In pursuance of the said order, the matter has been placed before us. At the commencement of the hearing, we passed the following order on December 9, 1997 :-

"By order dated November 18, 1997 these matters have been referred to this Court for the reason that among other questions, a substantial question of law as to the interpretation of Article 105 of the Constitution of India is raised in these petitions. These petitions are, therefore, required to be heard and disposed of by a Constitution Bench. The learned counsel for the parties agree that the Constitution Bench may only deal with the questions relating to interpretation of Article 105 of the Constitution and the applicability of the Prevention of Corruption Act to a Member of Parliament and Member of State Legislative Assembly and the other questions can be considered by the Division Bench."

During the pendency of the appeals in this Court the Special Judge has framed the charges against the accused persons (appellants herein) on September 25, 1997. All the appellants have been charged with the offence of criminal conspiracy punishable under Section 120-B, IPC read with Sections 7, 12 and 13(2) read with Section 13(1)(d) of the 1988 Act. A-3 to A-5, belonging to JMM and A-15 to A-21, belonging to JD(A), have been further charged with offences under Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988 Act. A-3 to A-5 have also been charged with with offence under Section 193, IPC. The other appellants, viz., A-1, A-2 and A-7 to A-14 have been charged with the offence under Section 193, IPC. The other appellants, viz., A-1, A-2 and A-7 to A-14 have been charged with offence under Section 12 of the 1988 Act for having abetted the commission of the offence punishable under Section 7 of the 1988 Act by the members of Parliament belonging to JMM and JD(A).

Sections 7, 12 and 13(1)(d) and 13(2) of the 1988 Act may be reproduced as under :-

"7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other thana legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."

Explanations. - (a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then service them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remunerations." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."

"12. Punishment for abetment of offences defines in Section 7 or 11. - Whoever abets any offence punishable under Section 7 to Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall not less than six months but which may extend to five years and shall also be liable to fine."

"13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, -

(a) to (c) x x x x x

(d) If he, -

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable or pecuniary advantage without any public interest; or

(e) x x x x

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."

The charge of criminal conspiracy as against appellants who are alleged to have agreed to offer the gratification (A-1, A-2 and A-7 to A-14) is in these terms :-

"That you P.V. Narasimha Rao between July and August, 1993 at Delhi and Bangalore were party to a criminal conspiracy and agreed to or entered into an agreement with your co-accused Capt. Satish Sharma, Buta Singh, V. Rajeshwara Rao, H.M. Revanna, Ramlinga Reddy, M. Veerappa Moily, D.K. Audi Keshvalu, M. Thimmegowda, Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Suraj Mandal, Shibu Soren, Simon Morandi, Shilendra Mahto (Approver, since granted pardon on 8.4.1997), Janta Dal (Ajit Group) MPs Ajit Singh, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Charan Das, Abhay Pratap Singh, Haji Ghulam Mohd. Khan and late G.C. Munda to defeat the no-confidence motion moved on 26.7.1993 against the then Congress (I) Government headed by you by illegal meanz viz., to offer or cause to offer and pay gratification other than the legal remuneration to your co-accused persons namely JMM and Janta Dal (A) MPs named above as a motive or reward for their helping in defeating the said no- confidence motion moved by the opposition parties and in pursuance of the said agreement you paid or caused to pay several lacs of rupees to the above referred JMM and Janta Dal (A) MPs who obtained or attempted to obtain the same in the manner stated above and thereby you have committed an offence punishable u/S. 120, IPC r/w. Ss. 7, 12, 13(2) r/w S. 13(1)(d) of the P.C. Act, 1988 and within my cognizance."

The charge of criminal conspiracy as against appellants who are alleged to have agreed to receive the gratification (A-3 to A-5 and A-15 to A-21) is in these terms :-

"Firstly, you between July and August, 1993 at Delhi and Bangalore were party to a criminal conspiracy and agreed to or enter into an agreement with your co-accused P.V. Narasimha Rao, Capt. Satish Sharma, Buta Singh, V. Rajeshwara Rao, H.M. Revanna, Ramlinga Reddy, M. Veerapa Moily, D.K. Audi Keshvalu, M. Thimmegowda, Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Shibu Soren, Simon Marandi, Shilendra Mahto (Approver, since granted pardon on 8.4.1997), Janata Dal (Ajit Group) MPs Ajit Singh, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anandi Charan Dass, Abhey Partap Singh, Haji Ghulam Mohd. Khan and late G.C. Munda to defeat the no-confidence motion moved against the then Congress (I) Government headed by accused Shri P.V. Narasimha Rao on 26.7.1993 by illegal means viz. to obtain or agree to obtain gratification other than legal remunerations from your above named accused persons other than JMM and Janata Dal (A) MPs as a motive or reward for defeating the no-confidence motion and in pursuance thereof above named accused persons other than JMM and Janata Dal (A) passed on several lacs of rupees to you or your other co- accused namely JMM and Janata Dal (A) MPs which amounts were accepted by you or your said co-accused persons and thereby you have committed an offence punishable u/S. 120-B r/w Ss. 7, 12, 13(2) r/w. S. 13(1)(d) of the P.C. Act and within my cognizance."

The charges under Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988 Act against A-3 to A-5 and A-15 to A-21 are in these terms :-

"Secondly, that you being a public servant while functioning in your capacity of Member of Parliament (10th Lok Sabha) during the aforesaid period and at the aforesaid places in pursuance of the aforesaid conspiracy demanded and accepted from your co-accused other than JMM and JD (A) MPs mentioned above a sum of Rs. 280 lacs for yourself and other JMM MPs named above other than your legal remuneration as a motive or reward for defeating above referred no- confidence of Congress (I) headed by your co-accused P.V. Narasimha Rao and thereby you have committed an offence punishable u/S. 7 of P.C. Act and within my cognizance."

"Thirdly, you during the aforesaid period and at the aforesaid places being a public servant while functioning in your aforesaid capacity of Member of Parliament by corrupt or illegal means and by abusing your position as a said public servant obtained for yourself or your other co-accused advantage to the extent of Rs. 280 lacs and thereby committed an offence punishable u/S. 13(2) read with Section 13(1)(d) of P.C. Act and within my cognizance."

The charge under Section 12 of the Act against A-1, A-2, A-14 and A-15 is in these terms:-

"Secondly, you P.V. Narasimha Rao in pursuance of the aforesaid criminal conspiracy during the aforesaid period criminal conspiracy during the aforesaid period and at the aforesaid place abetted the commission of offence punishable u/S 7 of P.C. Act by above referred JMM and Janta Dal (A) MPs and thereby you have committed an offence punishable u/S. 12 of the P.C. Act and with my cognizance."

The two questions arising for consideration can be thus formulated :-

(1) 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 bribe

(2) 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 a "public servant" as defined under Section 2(c) of the 1988 Act, and (b) he is not a person comprehended in Cls. (a), (b), and (c) of sub-section (1) of Section 19 and there is no authority competent to grant sanction for his prosecution under the 1988 Act

Immunity from prosecution

7. In order to answer the first question it would be necessary to examine the scope and ambit of the protection available to a Member of Parliament under Article 105 which deals with the powers, privileges and immunities of the Houses of Parliament and it members. Before we undertake this task, we would briefly set out the prevailing state of law in the United Kingdom and other countries follows the common law.

8. UNITED KINGDOM : During the rule of the Tudor and Stuart Kings the Commons had to wage a bitter struggle to assert their supremacy which culminated in the Bill of Rights, 1689 whereby it was secured "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament" (Article 9). On May 2, 1965 the House of Commons passed a resolution whereby it resolved that "the offer of money, or other advantage, to any Member of Parliament for the promoting of any matter whatsoever, depending or to be transacted in Parliament is a high crime and misdemeanour and tends to the subversion of the English constitution". In the spirit of this resolution, the offering to a Member of either House of a bribe to influence him in his conduct as a Member or of any fee or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to the House or any committee thereof, has been treated as a breach of privilege. (See : Mays Parliamentary Practice, 21st Edn., p. 128.) In its report submitted in July, 1976 the Royal Commission on Standards of Conduct in Public Life (chaired by Lord Salmon) had pointed out 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 had nothing to do with his parliamentary activities would be caught by the ordinary criminal law" (page 98, paras 307 and 308). The Salmon Commission has observed that sanctions against bribery introduced by the criminal law in other fields have now outstripped whatever sanctions may be exerted through Parliaments own powers of investigation and punishment and the Commission was of the view that there is a strong case for bringing such malpractice within the criminal law. According to the Salmon Commission, the Committee of Privileges and the Select Committee on Members Interests do not provide an investigative machinery comparable to that of a police investigation and that having regard to the complexity of most investigations into serious corruption special expertise is necessary for this type of inquiry (para 310, pp. 98, 99). The Salmon Commission has recommended :-

"Membership of Parliament is a great honour and carries with it a special duty to maintain the highest standards of probity, and this duty has almost invariably been strictly observed. Nevertheless in view of our report as a whole, and especially in the light of the points set out in the foregoing paragraph, we recommended that Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament acting in his parliamentary capacity within the ambit of the criminal law."

(para 311, p. 99)

During the course of the debate in the House of Lords, Lord Salmon said :-

"To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bills of Rights is possibly a serious mistake."

After quoting the Bill of Rights Lord Salmon continued :-

"Now this is a charter for freedom of speech in the House it is not a charter for corruption. To my mind, the Bill of Rights, for which no one has more respect that I have, has no more to do with the topic which we are discussing than the Merchandise Marks Act. The crime of corruption is complete when the bribe is offered or given or solicited or taken."

9. The correctness of the statement in the Report of the Salmon Commission that common law does not apply to bribery or attempted bribery of a Member of Parliament in respect of his parliamentary activities, has been doubted by Prof. Graham Zellick who has said that Sir James Fitzjames Stephen appears to be the only writer to have taken the same view in his Digest of Criminal Law (1878), Article 118, and that there is nothing in the English authorities which compels to the conclusion that a Member of Parliament is not a public officer and is not punishable at common law for bribery and breach of trust. (See : Grahma Zellick : Bribery of Members of Parliament and the Criminal Law, 1979 Public Law, p. 31 at pp. 39, 40).

10. The question whether offering of a bribe to and acceptance of the same by a Member of Parliament constitutes an offence at common law came up for consideration before a Criminal Court (Buckley, J.) in 1992 in R. v. Currie. In that case it was alleged that a Member of Parliament had accepted bribes as a reward for using his influence as a Member in respect of application for British nationality of one of the persons offering the bribe. The indictment was sought to be quashed on the ground that bribery of a Member of Parliament is not a crime and that in any event the Court has no jurisdiction and Parliament alone can try a member for bribery, the matter being covered by parliamentary privilege. The learned Judge rules against the contention and held :-

"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."

In 1994 the Attorney-General advised the Committee of Privileges of the House of Commons that, in his opinion, though bribery of a Member was not a statutory offence, it might be an offence at the common law. (See : Mays Parliamentary Practice, 22nd Edn., p. 114). The Committee on Standards in Public Life, chaired by Lord Nolan (Nolan Committee) in its first report submitted in May, 1995, has said :-

"There is one area of conduct where a need already exists to clarify, and perhaps alter, the boundary between the Courts of Parliament. Bribery of a Member, or the acceptance of a bribe by a Member, is contempt of Parliament and can be punished by the House. The test which the House would apply for bribery would no doubt be similar to that which would apply under Common Law. However it is quite likely that Members of Parliament who accepted bribes in connection with their parliamentary duties would be committing Common Law offences which could be tried by the Courts. Doubt exists as to whether the Courts or Parliament have jurisdiction in such cases." (para 103)

"The Salmon Commission in 1976 recommended that such doubt should be resolved by legislation, but this has not been acted upon. We believe that it would be unsatisfactory to leave the issue outstanding when other aspects of the law of Parliament relating to conduct are being clarified. We recommend that the Government should now take steps to clarify the law relating to the bribery of or the receipt of a bribe by a Member of Parliament. This could usefully be combined with the consolidation of the statute law on bribery which Salmon also recommended, which the Government accepted, but which has not been done. This might be a task which the Law Commission could take forward."

(para 104)

It appears that the matter is being considered by the Law Commission. In the Law Commission, Consultation Paper No. 145, reference has been made to a document entitled `Clarification of the law relating to the Bribery of Members of Parliament, published by the Home Office in December, 1996, whereby the Select Committee on Standards and Privileges has been invited to consider the following four broad options :-

(1) to rely solely on parliamentary privileges to deal with accusations of the bribery by Members of Parliament;

(2) subject Members of Parliament to the present corruption statutes in full;

(3) distinguish between conduct which should be dealt with by the criminal law and that which should be left to Parliament itself, and

(4) make criminal proceedings subject to the approval of the relevant House of Parliament.

11. AUSTRALIA : Even though Article 9 of the Bill of Rights is applicable in Australia but as far back as in 1875 the Supreme Court of New South Wales held that an attempt to bribe a Member of the Legislative Assembly in order to influence his vote was a criminal offence, a misdemeanour at common law. (See : R v. White, 1875(13) SCR (NSW) 332.)

12. The said decision in White was approved by the High Court of Australia in R. v. Boston, 1923(33) CLR 386. In that case three persons, namely, Walter James Boston, a member of the Legislative Assembly of New South Wales, John Andrew Harrison and Henry Ernest Mitchelmore, were alleged to have unlawfully conspired together and with other persons that certain large sums of money should be corruptly given to Walter James Boston to use his position to secure the inspection of, acquisition and the payment of cash for certain estates by the Government of New South Wales and which estates were to be paid for out of the public funds of the said State and to put pressure upon the Minister for Lands and other officers of the Crown to inspect, acquire and to pay cash for certain estates. The trial Judge upheld the demurrer to the charge by the defendants on the ground that the matters alleged did not include a provision respecting voting in Parliament. In the High Court it was not disputed by the defendants that an agreement to pay money to a member of Parliament in order to influence his vote in Parliament would amount to a criminal offence. It was urged that consistently with the allegations in the information, the agreement between the defendants might have been to pay money to Boston to induce him to use his position exclusively outside Parliament, not by vote or speech in the Assembly, and that the transaction in connection with which he was to use his position to put pressure on the Minister might, consistently with the information, be one which would never come before Parliament and which in his opinion and in the opinion of those who paid him, was highly beneficial to the State; that such an agreement would not amount to a criminal offence, and the consequently the information is bad, Rejecting the said contention, Knox, C.J. has observed :-

"In my opinion, the payment of money to, and the receipt of money by, a Member of Parliament to induce him to use his official position, whether inside or outside Parliament, for the purpose of influencing or putting pressure on a Minister or other officer of the Crown to enter into or carry out a transaction involving payment of money out of the public funds, are acts tending to the public mischief, and an agreement or combination to do such acts amounts to a criminal offence. From the point of view of tendency to public mischief I can see no substantial difference between paying money to a member to induce him to use his vote in Parliament in a particular direction and paying him money to induce him to use his position as a member outside Parliament for the purpose of influencing or putting pressure on Ministers. A member of Parliament cannot divest his position of the right which it confers to take part in the proceedings of Parliament - he cannot `use his position as a Member of Parliament stripped of its principal attribute. The influence which his position as a member of Parliament enables him to exert on a Minister has its source in his right to sit and vote in Parliament, and it would be idle to pretend that in discussions and negotiations between a Minister and a member that right, or the power it confers on a member, can be disregarded or ignored. The tenure of office of the Minister and his colleagues may be dependent on the vote or on the abstention from voting of an individual member, or even on his words or his silence in Parliament."

(pp. 392, 393)

Similarly, Isaacs and Rich, JJ. have said :-

"It is impossible to sever the voluntarily assumed intervention departmentally from the legislative position to which by custom it is recognised as incidental. A member so intervening speaks as member and is dealt with as member, and not as a private individual. His ulterior power of action, though not intruded into observation, is always existent and is always known to exist. It is scarcely even camouflaged. The importance of even one parliamentary vote on a critical occasion is not entirely unknown." (p. 403)

Higgins, J., after stating that it was not disputed by the counsel for the defendants that if the agreement were that the member should use his votes or his action in the House to secure the acquisition of the land, the agreement would be criminal conspiracy, expressed the view that he could not read the court as `confining the agreement to action of the member outside the House and that the words `to use his position as such member primarily refer to an action in the House. The learned Judge, however, held :-

"A member is the watch-dog of the public; and Cerberus must not be seduced from vigilance by a sop. I see no reason to doubt that even if the count were confined to an agreement as to the action of the member outside the House action in which the member used his position as member - the agreement would be an indictable conspiracy." (p. 410)

13. Gavan Duffy and Starke, JJ., in their dissenting judgment, while holding that the acts charged as intended to be done by the defendant Boston, however important they may be, would not be malversation in his office, or acts done in his office, unless they were done in the discharge of his legislative functions, have said :-

"It cannot be denied that a member of Parliament taking money or agreeing to take money to influence his vote in Parliament is guilty of a high crime and misdemeanour, and that an agreement to bring about such a state of things constitutes a criminal conspiracy; nor can it be denied that an agreement which has the effect of fettering parliamentary or executive action may sometimes be as dangerous to the community as the direct purchase of a members vote; and it may be that, under the words used in the count which we are considering, facts might be proved which would constitute a criminal conspiracy."

(pp. 413, 414)


Section 73A of the Crimes Act, 1914 in Australia makes it an offence for members of the Australian Parliament to accept or be offered a bribe. Under the said provision a member of either House of Parliament who asks for or receives or obtains, or offers or agrees to ask for or receive or obtain, any property or benefit of any kind for himself or any other person, on an understanding that the exercise by him of his duty or authority as such a member will, in any manner, be influenced or affected, is guilty of an offence. So also a person who, in order to influence or affect a member of either House of Parliament in the exercise of his duty or authority as such a member or to induce him to absent himself from the House of which he is a member, any Committee of that House or from any Committee of both Houses of the Parliament, gives or confers, or promises or offers to give or confer, any property or benefit of any kind to or on the member or any other person is guilty of an offence. (See : Gerard Carnev - Conflict of Interest : A Commonwealth Study of Members of Parliament, p. 124).

14. CANADA : In the case of R. v. Bunting, 1984-5(7) Ontario Reports 524, the defendants had moved for quashing of an indictment for conspiracy to bring about a change in the Government of Province of Ontario by bribing members of the Legislature to vote against the Government. It was argued that bribery of a Member of Parliament is a matter concerning Parliament or Parliamentary business and is not an indictable offence at common law and that the exclusive jurisdiction to deal with such a case rests with the Legislative Assembly according to the law and custom of Parliament. Rejecting the said contention, Wilson, C.J. held :-

"It is to my mind a proposition very clear that this Court has jurisdiction over the offence of bribery as at the common law in a case of this kind, where a member of the Legislative Assembly is concerned either in the giving or in the offering to give a bribe, or in the taking of it for or in respect of any of his duties as a member of that Assembly; and it is equally clear that the Legislative Assembly has not the jurisdiction which this Court has in a case of the kind; and it is also quite clear that the ancient definition of bribery is not the proper or legal definition of that offence". (p. 542)

Armour, J. was of the same view and has said :-

"I think it beyond doubt that the bribery of a member of the Legislative Assembly of the Province of Ontario to do any act in his capacity as such is an offence at the common law, and is indictable and punishable as a misdemeanour." (p. 555)

OConnor, J. in his dissenting judgment, held that the bribe of a member of Parliament, is a matter concerning Parliament or Parliamentary business, is not an indictable offence at common law, and has not been made so by any statute.

15. Section 108 of the Criminal Code in Canada renders it an offence for a bribe to be offered to or accepted by a provincial or federal member, while in Federal Canada and several of the Provinces the acceptance of a reward etc., for promoting a matter within Parliament constitutes a breach of privilege. (See Gerard Carney : Conflict of Interest : A Commonwealth Study of Members of Parliament, p. 123).

16. Other Commonwealth Countries : After examining the anti-corruption measures in the various Commonwealth countries, Gerard Carney has concluded :-

"Most countries treat corruption and bribery by Members of Parliament as a criminal offence rather than as a breach of privilege."

(See : Gerard Carney : Conflict of Interest : A Commonwealth Study of Members of Parliament, p. 123).

17. UNITED STATES : Article 1(6) of the US Constitution contains the `Speech or Debate Clause which provides that "for any speech or debate in either House, they (Members of the Congress) shall not be questioned in any other place." In 1853 the Congress, by statute, declared a member liable to indictment as for a high crime and misdemeanour in any Court of the United States for accepting compensation intended to influence a vote or decision on any question brought before him in his official capacity. In 1862 the Congress enacted another statute to penalise legislators who received money for votes or influence in any matter pending before Congress and in 1864 Conflict of Interest Statutes barred Congressmen from receiving compensation for their services before any agency. The Conflict of Interest Statutes were revised in 1962 and are contained in 18 USC (1964). (See : Note, The Bribed Congressmens Immunity from Prosecution, (1965-66) 75 Yale LJ 335, p. 341).

18. A distinction is, however, made between the conduct of a member connected with the proceedings of the House and his conduct not in the House but in connection with other activities as a Member of the Congress. The speech and debate clause does not give any protection in respect of conduct "that is in no sense related to due functioning of the legislative powers." (See United States v. Johnson, 1966(15) Law Ed 2d 681, p. 684). In Burton v. United States, 1905(202) US 344, the US Supreme Court upheld that conviction of a Senator who had been bribed in order to get a mail fraud indictment quashed under the rationale that Burtons attempt to influence the Post Office Department was unprotected non-legislative conduct. The question regarding immunity in respect of actions connected with the proceedings of the House has been considered by the US Supreme Court in three decisions, namely, Johnson, United States v. Brewster, 1972(33) Law Ed 2d 507, and United States v. Helstoski, 1979(61) Law Ed 2d 12.

19. In Johnson a former US Congressman, named Johnson, and three co- defendants were found guilty of conspiracy consisting of an agreement among Johnson and another Congressman and two other co-defendants who were connected with a Maryland savings and loan institution whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges and as part of this general scheme Johnson read a speech favourable to independent savings and loan associations in the House and that the company distributed copies to allay apprehensions of potential depositors and that the two Congressmen approached the Attorney General and Assistant Attorney General in charge of the Criminal Division and urged them to review the indictment and for these services Johnson received substantial sums in the form of campaign contribution and legal fees. Harlan, J., delivering the opinion of the Court, held that the prosecution of the conspiracy count being dependent upon an intensive inquiry with respect to the speech or Debate Clause so as to warrant the granting of a new trial on the conspiracy count with all elements offensive to the Speech or Debate Clause to be eliminated. The Speech or Debate Clause was given a wider construction so as to exclude the motive for performing the legislative acts being enquired into in a criminal prosecution.

20. In Brewster, 1972(33) Law Ed 2d 507 a former US Senator, named Brewster, had been charged with accepting bribes and the allegation was that while he was a Senator and a member of the Senate Committee on Post and Civil Service he received and agreed to receive sums in return for being influenced in his performance of official acts in respect of his action, vote and decision on postage rate legislation which had been pending before him in his official capacity. Brewster moved to dismiss the indictment on the ground that he was immune from prosecution for any alleged act of bribery because of the Speech or Debate Clause. The District Court accepted the said contention and dismissed the counts of the indictment which applied to Brewster. The said judgment of the District Court was reversed by the US Supreme Court and the matter was remanded. Burger, C.J., who delivered the opinion of the Court on behalf of six-Judges, held that the Speech or Debate Clause protects the members of Congress from inquiry into legislative acts or into the motivation for their actual performance of legislative acts and it does not protect from other activities they undertake that are political, rather than legislative, in nature and that taking a bribe for the purpose of having ones official conduct influenced is not part of any legislative process or function and the Speech or Debate Clause did not prevent indictment and prosecution of Brewster for accepting bribes. Brenan and White, JJ. (joined by Douglas, J.) dissented. The Court construed the Speech or Debate Clause as giving protection to an act which was clearly a part of the legislative process - the due functioning of the process. It was held that the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process and that financial abuse, by way of bribes, would grossly undermine legislative integrity and defeat the right of the public to honest representation. The learned Chief Justice has observed :-

"Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator." (p. 526)

21. In Helstoski, 1979(61) Law Ed 2d 12 a former member of the House of Representatives, named Helstoski, was prosecuted for accepting money for promising to introduce and for introducing private bills which would suspend the application of the immigration laws so as to allow the aliens to remain in the country. Helstoski moved to dismiss the indictment in the District Court contending that the indictment violated the Speech or Debate Clause. The said motion was rejected by the District Court though it was held that the Government would not be allowed to offer evidence at trial of the performance of the past legislative acts by the Congressmen. The said judgment was affirmed by the Court of Appeals which judgment was also affirmed by the US Supreme Court by majority (Brennan, J. dissenting). Burger, C.J. has held that references to past legislative acts of a Member cannot be admitted without considering the values protected by the Speech or Debate Clause which was designed to preclude prosecution of Members for legislative act.

22. Having taken note of the legal position as it prevails in the various countries, we may now examine the legal position in this regard in India.

23. Offering of a bribe or payment to a Member of Parliament influences him in his conduct as a member and acceptance of a bribe by such a Member is treated as a breach of privilege by Indian Parliament even though no money has actually changed hands. (See : M.N. Kaul and S.L. Shakdher : Practice and Procedure of Parliament, 4th Edn., p. 254). As early as in 1951 an ad hoc Committee of Parliament was appointed to investigate the conduct and activities of a member, H.G. Mudgal, in connection with some of his dealings with a business association which included canvassing support and making propaganda in Parliament on certain problems on behalf of that association in return for alleged financial and other business advantages. An ad hoc Committee of the House was appointed to consider whether the conduct of the member concerned was derogatory to the dignity of the House and inconsistent with the standards which Parliament is entitled to expect from members. The Committee found the member guilty of receiving monetary benefits for putting questions in Parliament, moving amendments to the Forward Contracts (Regulation) Bill and urging interviews with the Ministers, etc. and it held that the conduct of H.G. Mudgal was derogatory to the dignity of the House and inconsistent with the standards which Parliament was entitled to expect of its members. The Committee recommended the expulsion of the member from the House. While the said report was being considered by the House, the member, after participating in the debate, submitted his resignation from the membership of the House. In the resolution the House accepted the findings of the Committee and deprecated the attempt of the member to circumvent the effects of the motion expelling him from the House, by his resignation, which constituted a contempt of the House and aggravated the offence. (See Kaul and Shakdher at pp. 284, 285).

24. It does not, however, constitute breach or contempt of the House if the offering of payment of bribe is related to the business other than that of the House. In 1974 the Lok Sabha considered the matter relating to offer or payment of bribe in the Import Licences case wherein it was alleged that a Member of Lok Sabha had taken bribe and forged signatures of the Members for furthering the cause of certain applicants. The question of privilege was disallowed since it was considered that conduct of the Member, although improper, was not related to the business of the House. But at the same time it was held that as the allegation of bribery and forgery were very serious and unbecoming of a Member of Parliament, he could be held guilty of lowering the dignity of the House. (See Kaul and Shakdher, at pp. 254, 255).

25. The question whether a Member of Parliament can claim immunity from prosecution before a Criminal Court on charge of bribery in relation to proceedings in Parliament has not come up for consideration before the Court and it has to be examined in the light of the provisions contained in the Constitution. The relevant provision which provides for the powers, privileges and immunities of Parliament and its members and its Committees is contained in Art. 105 of the Constitution. The said Article, in the original form, read as follows :-

"105. Powers, Privileges, etc. of the House of Parliament and of the Members and Committees thereof. - (1) 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.

(2) 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, and no person shall be so liable to in respect of the publication by or under the authority of either House of Parliament of any report paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.

(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any Committee thereof as they apply in relation to Members of the Parliament."

By Constitution (Forth-fourth Amendment) Act, 1978, cl. (3) was replaced by the following clause :-

"(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the Committees of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of that House and of its members and committees immediately before coming into force of Section 15 of the Constitution (Forth-fourth Amendment) Act, 1978."

26. Clause (1) secures freedom of speech in Parliament to its members. The said freedom is "subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure for Parliament." The words "subject to the provisions of this Constitution" have been construed to mean subject to the provisions of the Constitution which regulate the procedure of Parliament, viz., Articles 118 and 121. (See : Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha, 1959 Supp.(1) SCR 806, at p. 856 : AIR 1959 SC 395 [LQ/SC/1958/164] at pp. 408-9) and Special Reference No. 1 of 1964, also known as the Legislative Privileges case, 1965(1) SCR 413, at p. 441 : AIR 1965 SC 745 [LQ/SC/1964/251] at p. 760. The freedom of speech that is available to Members of Parliament under Article 105(1) is not subject to the limitations contained in Article 19(2).

27. Clause (2) confers immunity in relation to proceedings in Courts. It can be divided into two parts. In the first part immunity from liability under any proceedings in any Court is conferred on a Member of Parliament in respect of anything said or any vote given by him in Parliament or any committee thereof. In the second part such immunity is conferred on a person in respect of publication by or under the authority or either House of Parliament of any report, paper, votes or proceedings. This immunity that has been conferred under Clause (2) in respect of anything said or any vote given by a Member in Parliament or any Committee thereof and in respect of publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, ensures that the freedom of speech that is granted under Clause (1) of Article 105 is totally absolute and unfettered. (See : Legislative Privileges case, Pp. 441, 442 : AIR 1965 SC 745 [LQ/SC/1964/251] at pp. 760, 761.)

28. Having secured the freedom of speech in Parliament to the members under Clauses (1) and (2), the Constitution, in Cl. (3) of Article 105, deals with powers, privileges and immunities of the House of Parliament and of the members and the committees thereof in other respects. The said clause is in two parts. The first part empowers Parliament to define, by law, the powers, privileges and immunities of each House of Parliament and of the Members and the Committees of each House. In the second part, which was intended to be transitional in nature, it was provided that until they are so defined by law the said powers, privileges and immunities shall be those of the House of Commons in the United Kingdom and of its members and committees at the commencement of the Constitution. This part of the provisions was on the same lines as the provisions contained in Section 49 of the Australian Constitution and Section 18 of the Canadian Constitution. Clause (3), as substituted by the Forty-fourth Amendment of the Constitution, does not make any change in the content and it only seeks to omit future reference to the House of Commons of Parliament in the United Kingdom while preserving the position as it stood on the date of coming into force of the said amendment.

29. Clause (4) of Article 105 makes the privileges and immunities secured under Clauses (1), (2) and (3) applicable to persons who by virtue of the Constitution have the right to speak in and otherwise to take part in the proceedings of a House of Parliament or any Committee thereof as they apply in relation to Members of Parliament.

30. Shri P.P. Rao, Shri D.D. Thakur and Shri Kapil Sibal, the learned senior counsel appearing for the appellants, have submitted that having regard to the purpose underlying the grant of immunity under Clause (2) of Article 105, namely, to secure full freedom for a Member of Parliament while participating in the proceedings in the House or its Committees by way of speech or by casting his vote, the said provision should be given a wide construction so as to enable the Member to exercise his said rights without being exposed to legal proceedings in a Court of law in respect of anything said or any vote given by him in Parliament or any Committee thereof. It has been submitted that the immunity from liability that has been conferred on a Member of Parliament under Clause (2) of Article 105 would, therefore, extend to prosecution of member on a charge of bribery in making a speech or giving his vote in the House or any Committee as well as the charge of conspiracy to accept bribe for making a speech or giving the vote. It is claimed that by virtue of the immunity granted under Clause (2) of Article 105 the offer to and acceptance by a Member of Parliament of bribe in connection with his making a speech or giving the vote would not constitute a criminal offence and, therefore, neither the member receiving the bribe nor the person offering this bribe can be prosecuted and so also there can be no offence of criminal conspiracy in respect of such offer and acceptance of bribe. It has been urged that on that view neither the charge of conspiracy under Section 120-B, IPC nor the charges in respect of the substantive offences under the 1988 Act can be sustained against the appellants. Strong reliance has been placed on the decision of the Court of Queens Bench in Ex parte Wason, 1869 LR 4 QBD 573, as well as on the judgment of the U.S. Supreme Court (Harlan, J.) in Johnson, 1966(15) Law Ed 2d 681 and on the dissenting judgments of Brennan, J. and White, J. in Brewster, 1972(33) Law Ed 2d 507.

31. The learned Attorney-General, on the other hand, has urged that the immunity granted under Clause (2) of Article 105 gives protection to a Member of Parliament from any liability for a speech made by him or a vote given by him in the House or any Committee thereof, but the said immunity cannot be extended to confer immunity from prosecution of a Member for having received bribe or having entered into a conspiracy to receive bribe for the purpose of making a speech or giving a vote in the House or in any Committees thereof. The learned Attorney-General has placed reliance on the judgment of the U.S. Supreme Court (Burger, C.J.) in Brewster, 1972(33) Law Ed 2d 507, the Canadian decision in Bunting (1884-5(7) Ontario Reports 524 and the Australian decisions in White (13 SCR (NSW) 332) and Boston (1923(33) CLR 386) and the ruling of Buckley, J. in R. v. Currie.

32. Before we proceed to consider these submissions in the light of the provisions contained in Clause (2) of Article 105, we may refer to the decision in Ex parte Wason, 1869 LR 4 QBD 573 and the other decisions in which it has been considered.

33. In Ex parte Wason information had been laid by Wason before the Magistrate wherein it was stated that he had given Earl Russell a petition to be presented in the House of Lords wherein the Lord Chief Baron was charged with wilful and deliberate falsehood and the object of the petition was that the Lord Chief Baron might be removed from his office by an address of both Houses of Parliament and that Earl Russell, Lord Chelmsford and the Lord Chief Baron conspired together to prevent the course of justice by agreeing to make statements which they knew to be untrue and that Earl Russell, Lord Chelmsford and the Lord Chief Baron agreed to deceive the House of Lords by stating that the charge of falsehood contained in the petition against the Lord Chief Baron was unfounded and false whereas they knew it to be true. The Magistrate refused to take applicants recognizance on the ground that no indictable offence was disclosed by the information. The Court of Queens Bench upheld the said order of the Magistrate and refused to grant the rule sought by the applicant. Cockburn, C.J., after referring to the information which was placed before the Magistrate, said :-

"Now inasmuch as these statements were alleged to have been for the purpose of preventing the prayer of the petition, and the statements could not have had that effect unless made in the House of Lords, it seems to me that the fair and legitimate inference is that the alleged conspiracy was to make, and that the statements were made, in the House of Lords. I think, therefore, that the Magistrate, looking at this and the rest of the information, was warranted in coming to the conclusion, that Mr. Wason charged and proposed to make the substance of the indictment, that these three persons did conspire to deceive the House of Lords by statements made in the House of Lords for the purpose of frustrating the petition. Such a charge could not be maintained in a Court of law. It is clear that statements made by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make these persons guilty of it amenable to the criminal law." (p. 576)

Blackburn, J. said :-

"I perfectly agree with my Lord as to what the substance of the information is; and when the House is sitting and statements are made in either House of Parliament, the member making them is not amenable to the criminal law. It is quite clear that no indictment will lie for making them, nor for a conspiracy or agreement to make them, even though the statements be false to the knowledge of the persons making them. I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence." (p. 576)

Lush, J. also said :-

"I cannot doubt that it charges a conspiracy to deceive the House of Lords, and so frustrate the application, by means of making false statements in the House. I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House." (p. 577)

The observations of Cockburn, C.J., with whom Blackburn, J. has concurred, show that the substance of the information laid by Wason was that the alleged conspiracy was to make false statements and that such statements were made in the House of Lords and that the said statements had been made the foundation of the criminal proceedings. Though in the judgment there is no reference to Article 9 of the Bill of Rights but the tenor of the abovequoted observations of the learned Judges leave no doubt that the judgment was based on that Article. It has been so understood in later judgments. (See : R. v. Currie)

34. Reliance has been placed by Shri Rao on the observations of Lush, J. that "the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House."

35. In Johnson, 1966(15) Law Ed 2d 681 while dealing with the contention urged on behalf of the Government that the Speech or Debate Clause was meant to prevent only prosecutions based on the content of speech, such as libel actions, but not those founded on the antecedent unlawful conduct of accepting or agreeing to accept a bribe, Harian, J. has observed :-

"Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms." (pp. 689, 690)

36. In order to show the broader thrust of the privilege reference was made by the learned Judge to the decision in ex parte Wason (1869) LR 4 QBD 573) and the observations of Cockburn, C.J. and Lush, J. have been quoted. The contention that the Speech or Debate Clause was not violated because the gravamen of the count was the alleged conspiracy, not the speech, was rejected by pointing out that "the indictment itself focused with particularity upon motives underlying the making of the speech and upon its contents." (p. 690). The learned Judge has further said :-

"We emphasise that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them." (pp. 690, 691)

"The making of the speech, however, was only a part of the conspiracy charge. With all references to this aspect of the conspiracy eliminated, we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause". (p. 691)

37. In Brewster (1972 (33) Law Ed 2d 507) Brennan, J. and White, J. in their dissenting judgments, have referred to the earlier judgment in Johnson (1966 (15) Law Ed 2d 681) and the decision in ex parte Wason. Brennan, J. was of the view that Johnson "can only be read as holding that a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves may not be the subject of a general conspiracy prosecution." (p. 533). Burger, C.J. did not agree with this reading of Johnson and said :-

"Johnson thus stands on a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Governments case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." (pp. 517, 518)

After pointing out that the history of the privileges in England is by no means free from grave abuses by Legislators, Burger, C.J. has observed :-

"The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from the sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behaviour on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." (p. 521)

The learned Chief Justice took note of the fact that "Congress is ill-equipped to investigate, try, and punish its Members for a wide range of behaviour that is loosely and incidentally related to the legislative process" and said :-

"In this sense, the English analogy on which the dissents place much emphasis, and the reliance on ex parte Wason (1869) LR 4 QB 573, are inapt." (p. 521)

While referring to the observations made by Brennan, J., the learned Chief Justice has observed :-

"Mr. Justice Brennan suggests that inquiry into the alleged bribe is inquiry into the motivation for a legislative act, and it is urged that this very inquiry was condemned as impermissible in Johnson. That argument misconstrues the concept of motivation for legislative acts. The Speech or Debate Clause does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions. In Johnson, the Court held that on remand, Johnson could be retired on the conspiracy-to-defraud count, so long as evidence concerning his speech on the House floor was not admitted. The Courts opinion plainly implies that had the Government chosen to retry Johnson on that count, he could not have obtained immunity from prosecution by asserting that the matter being inquired into was related to the motivation for his House speech." (p. 527)

In his dissenting judgment White, J., after referring to ex parte Wason has observed :-

"The Wason Court clearly refused to distinguish between promise and performance; the legislative privilege applied to both." (p. 546)

The learned Judge then refers to Johnson and says :-

"I find it difficult to believe that under the statute there involved the Johnson Court would have permitted a prosecution based upon a promise to perform a legislative act." (p. 546).

But in Helstoski 1979 (61) Law Ed 2d 12) White, J. was a party to the majority judgment delivered by Burger, C.J. wherein it was held :-

"Promises by a member to perform an act in future are not legislative acts." (p. 23)

"But it is clear from the language of the clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not `speech or debate. Likewise a promise to introduce a bill is not a legislative act." (p. 24).

In Bunting (1884-5(7) Ontario Reports 524) Wilson, C.J., has considered, ex parte Wason and has pointed out that in that case the alleged conspiracy could not fall under the head of an agreement to do an illegal act because the truth or falsity of statements made by members in Parliament could not be enquired into by the Court and that it did not also fall under the head of doing an act, not necessarily illegal, by illegal means because there were no illegal means used or to be used. The learned Chief Justice has, however, observed :-

"But if these three persons had agreed that the two members of the House of Lords should make these false statements, or vote in any particular manner, in consideration of a bribe paid or to be paid to them, that would have been a conspiracy to do an act, not necessarily illegal perhaps, but to do the act by illegal means, bribery being an offence against the law; and the offence of conspiracy would have been complete by reason of the illegal means by which the act was to be effected.

That offence could have been inquired into by the Court, because the inquiry into all that was done would have been of matters outside of the House of Lords, and there could therefore be no violation of, or encroachment in any respect upon, the lex parliamenti." (p. 554)

In R. v. Currie, Buckley, J. has referred to the observations of Wilson, C.J. in Bunting and has ruled that the reasoning in ex parte Wason would not apply to alleged bribery for the proof of which no reference to goings-on in Parliament would be necessary.

38. We may now examine whether the decision in ex parte Wason has may bearing on the interpretation of Article 105(2). Clauses (1) and (2) of Article 105 are interlinked, while Cl. (1) secures to the Members freedom of speech in Parliament, Cl. (2) safeguards and protects the said freedom by conferring immunity on the Members from liability in respect of anything said or any vote given by him in Parliament or in any Committee thereof. This is necessary because for a regulatory body like Parliament, the freedom of speech is of the utmost importance and a full and free debate is of the essence of Parliamentary democracy. In England that freedom of speech in Parliament is secured by Article 9 of the Bill of Rights. Though Cl. (2) of Article 105 appears to be similar to Article 9 of the Bill of Rights but a closer look would show that they differ in certain aspects. Article 9 of the Bill of Rights, by prescribing that "freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament," confers immunity in respect of speech, debates or proceedings in Parliament being questioned in any Court or place out of Parliament. The said immunity has been construed to preclude what was said or done in Parliament in the course of proceedings there being examined outside Parliament for the purpose of supporting a cause of action even though the case of action itself arose out of something done outside Parliament. (See Church of Scientology of California v. Johnson Smith, 1972(1) All ER 378). In an Australian case R. v. Murphy, 1986(5) NSWLR 18, a question arose whether in the course of criminal trial, the witnesss earlier evidence to the Select Committee could be put to him in cross-examination with a view to showing a previous inconsistent statement. Hunt, J. in the Supreme Court of New South Wales, held that Article 9 of the Bill of Rights did not prohibit such cross- examination even if the suggestion was made that the evidence given to the Select Committee was a lie. He further held that the statements of the Select Committee could be used to draw inferences and could be analysed and be made the basis of submission.

39. In Prebble v. Television New Zealand Ltd., 1994(3) All ER 407, Lord Browne Wilkinson, speaking for the Judicial Committee of the Privy Council, after taking note of decision of Hunt, J. in R. v. Murphy (supra), has said :-

"Finally, Hunt, J. based himself on a narrow construction of Article 9 derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 as being, inter alia, the assertion by the Kings Courts of a right to hold a Member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that Article 9 only applies to cases in which a Court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying Article 9, viz. the need to ensure so far as possible that a member of the legislature and witnesses before Committees of the House can speak freely without fear that what they say will later be held against them in the Courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect." (p. 415)

The protection given under Clause (2) of Article 105 is narrower than that conferred under Article 9 of the Bill of Rights in the sense that the immunity conferred by that clause is personal in nature and is available to the member in respect of anything said or in any vote given by him in the House or any Committee thereof. The said clause does not confer an immunity for challenge in the Court on the speech or vote given by a Member of Parliament. The protection given under Clause (2) of Article 105 is thus similar to protection envisaged under the construction placed by Hunt, J. in R. v. Murphy (supra) on Article 9 of the Bill of Rights which has not been accepted by the Privy Council in Prebble v. Television New Zealand Ltd. The decision in ex parte Wason (supra), which was given in the context of Article 9 of the Bill of Rights can, therefore, have no application in the matter of construction of Clause (2) of Article 105. Ex parte Wason (supra), which holds that the information laid by Wason did not disclose any indictable offence, proceeds on the basis that statements made by members of either House of Parliament in their places in the House, though they may be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings. The position under Clause (2) of Article 105 is, however, different. The said clause does not prescribe that a speech made or vote given by a member in Parliament cannot be made the basis of civil or criminal proceedings at all. The said clause only gives protection to the member who has made the speech or is given the vote from liability in any proceeding in a Court of law. Therefore, on the basis of the decision in ex parte Wason (supra), it cannot be said that no offence was committed by those who are alleged to have offered the illegal gratification and by those who had received such gratification to vote against the No-Confidence Motion and for the reason the charge of conspiracy and abetment must also fail. On the basis of Article 105(2) the claim for immunity from prosecution can be made only on behalf of A-3 to A-5 and A-16 to A-21 who are alleged to have voted against the No-Confidence Motion. As to whether they are entitled to such immunity under Article 105(2) will, however, depend on the interpretation of the provisions of Article 105(2).

40. As indicated earlier, Article 105(2) is in two parts. In these appeals we are required to consider the first part which 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 immunity that has been conferred by this provision is : (i) only on the Member of Parliament, (ii) with regard to liability in any proceedings in any Court, which would include civil as well as criminal proceedings, (iii) in respect of anything said or any vote given by such Member, (iv) in Parliament or in any committee thereof.

41. Shri Rao has submitted that having regard to the object underlying the provisions, viz., to secure the freedom of speech in Parliament to the members, the immunity granted under Clause (2) must be construed in a wide sense and just as the expression "anything" was construed in Tej Kiran Jain v. N. Sanjiva Reddy, 1971(1) SCR 612 : AIR 1970 SC 1573 [LQ/SC/1970/266] , as a word of widest import, the expression "in respect of" must also be given a wide meaning so as to comprehend an act having a nexus or connection with the speech made or a vote given by a member of Parliament or any committee thereof and would include, within its ambit, acceptance of bribe by a member in order to make a speech or to cast his vote in Parliament or any Committee thereof in a particular manner. In support of his submission for giving a wider meaning to the expression "in respect of" Shri Rao has relied upon the decisions of this Court in State of Tripura v. Province of East Bengal, 1951 SCR 1 : AIR 1951 SC 23 [LQ/SC/1950/50] ; Tolaram Relumal v. State of Bombay, 1955 SCR 158 : AIR 1954 SC 496 [LQ/SC/1954/93] and S.S. Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd., 1960(2) SCR 926 : AIR 1960 SC 695 [LQ/SC/1960/29] and the decision in Paterson v. Chadwick, 1974(2) All ER 772.

42. The learned Attorney-General has, on the other hand, urged that immunity granted under Clause (2) of Article 105 is intended to protect a member from liability arising out of the speech made by him or vote given by him and it cannot be extended to cover the conduct of a member who has received bribe or has entered into a conspiracy to commit the offence of bribery in order to make a speech or cast his vote in Parliament. The submission is that the expression "in respect of" in Clause (2) of Article 105 must be so construed as to ensure that the immunity conferred under Clause (2) is only available in respect of legitimate acts of a member of Parliament and it cannot be invoked to secure immunity against any criminal acts committed by member in order to make a speech or to give his vote in Parliament or in any committee thereof. According to the learned Attorney-General, the expression "in respect of" in Article 105(2) must be construed to mean `for. Reliance has been placed by him on the decision of this Court in State of Madras v. M/s. Swastik Tobacco Factory, Vedaranyam, 1966(3) SCR 79 : AIR 1966 SC 1000 [LQ/SC/1965/386] .

43. In Tej Kiran Jain, AIR 1970 SC 1573 [LQ/SC/1970/266] , the appellants had filed a suit for damages in respect of defamatory statements alleged to have been made by certain members of Parliament on the floor of the Lok Sabha during a calling attention motion. The said suit was dismissed by the High Court on the view that no proceedings could be initiated in respect of anything said on the floor of the House in view of Article 105(2) of the Constitution. Before this Court it was contended on behalf of the plaintiffs that the immunity under Article 105(2) was granted to what was relevant to the business of Parliament and not to something which was irrelevant. The said contention was rejected by the Court. It was observed :-

"The 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 proceeding in any Court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that peoples representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The Courts have no say in the matter and should really have none." (AIR 1970 SC 1573 [LQ/SC/1970/266] at p. 1574).

These observations in Tej Kiran Jain emphasise the object underlying the immunity that has been conferred under Article 105(2), namely, that the peoples representatives should be free to exercise their functions without fear of legal consequences. Borrowing the words of Burger CJ. it can be said that this immunity has been granted "to protect the integrity of the legislative process by ensuring the independence of the individual legislators". It cannot be given a construction which could lead to Article 105(2), a charter for freedom of speech in Parliament, being regarded, as per the phrase used by Lord Salmon, a "charter for corruption" so to elevate members of Parliament as "super citizens, immune from criminal responsibility". (Burger, CJ. in Brewster, 1972(33) Law Ed 2d 507). It would indeed be ironic if a claim for immunity from prosecution founded on the need to ensure the independence of Members of Parliament in exercising their right to speak or cast their vote in Parliament, could be put forward by a Member who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification that has been paid or promised. By claiming the immunity such a Member would only be seeking a licence to indulge in such corrupt conduct.

44. It is no doubt true that a member who is found to have accepted bribe in connection with the business of Parliament can be punished by the House for contempt. But that is not a satisfactory solution. In exercise of its power to punish for contempt the House of Commons can convict a person to custody and may also order expulsion or suspension from the service of the House. There is no power to impose a fine. The power of committal cannot exceed the duration of the session and the person, if not sooner discharged by the House, is immediately released from confinement on prorogation. (See : Mays Parliamentary Practice, 21st Edn. pp. 103, 109 and 111). The House of Parliament in India cannot claim a higher power. The Salmon Commission has stated that "whilst the theoretical power of the House to commit a person into custody undoubtedly exists, nobody has been committed to prison for contempt of Parliament for a hundred years or so, and it is most unlikely that Parliament would use this power in modern conditions". (Para 306). The Salmon Commission has also expressed the view that in view of the special expertise that is necessary for this type of inquiry the Committee of Privileges do not provide an investigative machinery comparable to that of a police investigation. (Para 310)

45. The expression `in respect of has to be construed in this perspective. The cases cited by Shri Rao do show that this expression has been construed as having a wider meaning to convey `some connection or relation in between the two subject-matters to which the words refer. But as laid down by this Court in The State Madras v. M/s. Swastik Tobacco Factory, Vendarayam, AIR 1966 SC 1000 [LQ/SC/1965/386] (supra) the expression has `received a wider interpretation, having regard to the object of the provisions and the setting in which the said words appeared. The expression `in respect of in Article 105(5) has, therefore, to be construed keeping in view the object of Article 105(2) and the setting in which the expression appears in that provision.

46. As mentioned earlier, the object of the immunity conferred under Article 105(2) is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. 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 the 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 an essential part of the basis structure of the Constitution. It is settled law that in interpreting the constitutional provisions the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. (See Sub-Committee on Judicial Accountability v. Union of India, 1991(4) SCC 699, 719). The expression `in respect of precedes the words `anything said or any vote given in Article 105(2). The words `anything said or any vote given can only mean speech that has already been made or a vote that has already been given. The immunity from liability, therefore, comes into play only if a speech has been made or vote has been given. The immunity would not be available in a case where a speech has not been made or a vote has not been given. When there is a prior agreement whereunder a Member of Parliament has received an illegal consideration in order to exercise his right to speak or to give his vote in a particular manner on a matter coming up for consideration before the House, there can be two possible situations. There may be an agreement whereunder a Member accepts illegal gratification and agrees not to speak in Parliament or not to give his vote in Parliament. The immunity granted under Article 105(2) would not be available to such a Member and he would be liable to be prosecuted on the charge of bribery in a criminal Court. What would be the position if the agreement is that in lieu of the illegal gratification paid or promised the Member would speak or give his vote in Parliament in a particular manner and he speaks and gives his vote in that manner As per the wide meaning suggested by Shri Rao for the expression `in respect of, the immunity for prosecution would be available to the Member who has received illegal gratification under such an agreement for speaking or giving his vote and who has spoken or given his vote in Parliament as per the said agreement because such acceptance of illegal gratification has a nexus or connection with such speaking or giving of vote by that Member. If the construction placed by Shri Rao on the expression `in respect of is adopted, a member would be liable to be prosecuted on a charge of bribery if he accepts bribe for not speaking or for not giving his vote on a matter under consideration before the House but he would enjoy immunity from prosecution for such a charge if he accepts bribe for speaking or giving his vote in Parliament in a particular manner and he speaks or gives his vote in Parliament in that manner. It is difficult to conceive that the framers of the Constitution intended to make such a distinction in the matter of grant of immunity between a Member of Parliament who receives bribe for speaking or giving his vote in Parliament in a particular manner and speaks or gives his vote in that manner and a Member of Parliament who receives bribe for not speaking or not giving his vote on a particular matter coming up before the House and does not speak or give his vote as per the agreement so as to confer an immunity from prosecution on charge of bribery on the former but denying such immunity to the latter. Such an anamolous situation would be avoided if the words `in respect of in Article 105(2) are construed to mean `arising out of. If the expression `in respect of is thus construed, the immunity conferred under Article 105(2) would be confined to liability that arises out of or is attributable to something that has been said or to a vote that has been given by a Member in Parliament or any committee thereof. The immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part of the cause of action for the proceedings giving rise to the liability. The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament even though it may have a connection with the speech made or the vote given by the Member if such an act gives rise to a liability which arises independently and does not depend on the making of the speech or the giving of vote in Parliament by the Member. Such an independent liability cannot be regarded as liability in respect of anything said or vote given by the Member in Parliament. The liability for which immunity can be claimed under Article 105(2) is the liability that has arisen as a consequence of the speech that has been made or the vote that has been given in Parliament.

47. An indication about the liability with regard to which immunity is granted by Article 105(2) is given in the Legislative Privileges Case, AIR 1965 SC 745 [LQ/SC/1964/251] where in the context of clause (2) of Article 194, which confers immunity similar to that conferred by Article 105(2) on Members of the State Legislatures, it has been said :-

"Having conferred freedom of speech on the legislators, clause (2) emphasises the fact that the said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may give in the Legislature or any committee thereof. In other words, even if a legislator exercises his right of freedom of speech in violation, say, of Article 21, he would not be liable for any action in any Court. Similarly, if the legislator by his speech or vote, is alleged to have violated any of the fundamental rights guaranteed by part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any Court. If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any Court by this clause." (AIR 1965 SC 745 [LQ/SC/1964/251] at p. 760).

48. With regard to liability arising from giving of vote in the House an illustration is furnished by the decision of the US Supreme Court in Kilbourn v. Thompson, 1879(81) 26 Law Ed 377. In that case one Hallet Kilbourn was found guilty of contempt of the House of Representatives and was ordered to be detained in custody under a resolution passed by that House. He brought an action in trespass for false imprisonment against the members of the House who had voted in favour of the resolution. The action was held to be not maintainable against the members in view of the immunity conferred by the Speech or Debate Clause in the US Constitution.

49. The construction placed by us on the expression `in respect of in Article 105(2) raises the question : Is the liability to be prosecuted arising from acceptance of bribe by a Member of Parliament for the purpose of speaking or giving his vote in Parliament in a particular manner on a matter pending consideration before the House an independent liability which cannot be said to arise out of anything said or any vote given by the Member in Parliament In our opinion, this question must be answered in the affirmative. The offence of bribery is made out against the receiver if he takes or agrees to take money for promise to act in a certain way. The offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the money will be treated to have committed the offence even when he defaults in the illegal bargain. For proving the offence of bribery all that is required to be established is that the offender has received or agreed to receive money for a promise to act in a certain way and it is not necessary to go further and prove that he actually acted in that way.

The offence of criminal conspiracy is defined in Section 120A, IPC in these terms :-

"120-A. Definition of criminal conspiracy. - When two or more persons agree to do, or cause to be done, -

(1) an illegal act, or

(2) an act which is not illegal by illegal mean, such an agreement is designated a criminal conspiracy :

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation. - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

The offence is made out when two or more persons agree to do or cause to be done an illegal act or when two or more persons agree to do or cause to be done by illegal means an act which is not illegal. In view of the proviso to Section 120A, IPC an agreement to commit an offence shall by itself amount to criminal conspiracy and it is not necessary that some act besides the agreement should be done by one or more parties to such agreement in pursuance thereof. This means that the offence of criminal conspiracy would be committed if two or more persons enter into an agreement to commit the offence of bribery and it is immaterial whether in pursuance of that agreement the act that was agreed to be done in lieu of payment of money was done or not.

50. 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 thus arises independently of the making of the speech or giving of vote by the member and the said liability cannot, therefore, be regarded as a liability `in respect of anything or any vote given in Parliament. We are, therefore, of the opinion that the protection granted under Article 105(2) cannot be invoked by any of the appellants to claim immunity from prosecution on the substantive charge in respect of the offences punishable under Section 7, Section 13(2) read with Section 13(1)9) and Section 12 of the 1988 Act as well as the charge of criminal conspiracy under Section 120B, IPC read with Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988 Act.

51. Shri P.P. Rao has also invoked the privileges and immunities available to Members of Parliament under clause (3) of Article 105. It has been urged that since no law has been made by Parliament defining the powers, privileges and immunities of each of House of Parliament, the powers, privileges and immunities enjoyed by Members of Parliament of India are the same as those enjoyed by the Members of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution on January 26, 1950. In order to show that on January 26, 1950 a Member of the House of Commons in the United Kingdom enjoyed an immunity from prosecution for bribery in connection with the exercise of his functions as such Member, Shri Rao has invited our attention to the following statement in Mays Parliamentary Practice :-

"The acceptance by any Member of either House of bribe to influence him in his conduct as such Member or of any fee, compensation or reward in connection with the promotion of, or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to the House or any committee thereof is a breach of privilege." (18th Edn. p. 138)

It has been submitted that since acceptance of a bribe by a Member of House of Commons was treated as breach of privilege and was not triable as an offence in any criminal court in the United Kingdom, the same privilege and immunity is available to a Member of Parliament in India by virtue of the second part of clause (3) of Article 105. It has been further contended that in a case where the conduct which constitutes the breach of privilege is also an offence at law, it is for the House to decide whether the punishment which the House is empowered to inflict is not adequate to the offence and it is necessary that the offender should be prosecuted in a criminal court and reliance is placed on the following passage in Mays Parliamentary Practice :-

"In cases of breach of privilege which are also offences at law, where the punishment which the House has power to inflict would not be adequate to the offences, or where for any other cause the House has thought a proceeding at law necessary, either as a substitute for, or in addition to, its own proceeding, the Attorney General has been directed to prosecute the offender." (18th Edn. p. 127).

In the Legislative Privileges case, AIR 1965 SC 745 [LQ/SC/1964/251] while construing clause (3) of Article 194, which was in the same terms as clause (3) of Article 105, this Court has said :-

"This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950. It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld that under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is : is the power in question shown or proved to have substituted in the House of Common at the relevant time." (AIR 1965 SC 745 [LQ/SC/1964/251] at p. 761).

(Emphasis supplied)

The learned Attorney General has submitted that till the decision in R. v. Currie the position in England was that acceptance of bribe by a Member of Parliament was not an offence at common law and since acceptance of bribe by a member of Parliament was not being treated as an offence at common law, the question whether a Member of Parliament enjoys an immunity from prosecution in a criminal court on a charge of bribery never came up before the English Courts and, therefore, it cannot be said that on January 26, 1950 the members of the House of Commons in the United Kingdom enjoyed a privilege, which was recognised by the English courts, that they could not be prosecuted on a charge of bribery in a criminal court and that such a privilege cannot, therefore, be claimed by Members of Parliament in India under clause (3) of Article 105. The learned Attorney General has placed reliance on the following observations of Stephen, J. in Bradlaugh v. Gossett, 1884(12) QBD 271 :

"I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice."

52. The learned Attorney General has also placed reliance on the following statement of law in Halsburys Laws of England Vol. 11 (1), para 37 at page 40, wherein it is stated :-

"37. Members of Parliament, except in relation to anything 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 privileges of Parliament do not apply to criminal matters."

In Footnote (1) to the said para it is stated that :-

"Although members are probably subject to the jurisdiction of the courts in respect of other conduct in Parliament they cannot be made criminally responsible in the courts for what is said by them in Parliament while it is sitting, see the Privileges of Parliament Act, 1512 (as amended)."

We find considerable force in the aforesaid submission of the learned Attorney General. Since offering of bribe to a Member of Parliament and acceptance of bribe by him had not been treated as an offence at common law by the courts in England when the Constitution was adopted in 1950, the fact that such conduct was being treated as a breach of privilege by the House of Commons in England at that time would not necessarily mean that the courts would have been precluded from trying the offence of bribery committed by a Member of Parliament if it were to be treated as an offence. In Australia and Cananda where bribery of a legislator was treated as an offence at common law the courts in White, Boston and Bunting had held that the legislator could be prosecuted in the criminal court for the said offence. It cannot, therefore, be said that since acceptance of bribe by a Member of House of Commons was treated as a breach of privilege by the House of Commons and action could be taken by the House for contempt against the Member, the Members of the House of Commons, on January 26, 1950, were enjoying a privilege that in respect of conduct involving acceptance of bribe in connection with the business of Parliament, they could only be punished for breach of privilege of the House and they could not be prosecuted in a court of law. Clause (3) of Article 105 of the Constitution cannot, therefore, be invoked by the appellants to claim immunity from prosecution in respect of the charge levelled against them.

53. Before we conclude on this aspect relating to the claim for immunity from prosecution, we would deal with the contention urged by Shri D.D. Thakur wherein he has laid emphasis on the practical political realities. the submission of Shri Thakur is that during the course of the election campaign a candidate receives financial contributions and also makes promises to the electorate and that if the immunity under Article 105(2) is not available he would be liable to be prosecuted if, after being elected as Member of Parliament, he speaks or gives his vote in Parliament in fulfilment of those promises. The learned counsel has placed reliance on the dissenting judgment of White, J. in Brewster, 1972(33) Law Ed 2d 507 wherein he has expressed the view that permitting the executive to initiate the prosecution of a member of Congress for the specific crime of bribery is subject to serious potential abuse that might endanger the independence of the legislature. Burger C.J. has, however, pointed out that there was no basis for such an apprehension inasmuch as no case was cited in which the bribery statutes which have been applicable to members of Congress for over 100 years have been abused by the Executive Branch. The learned Chief Justice has stated :-

"We do not discount entirely the possibility that an abuse might occur, but this possibility, which we consider remote, must be balanced against the potential danger flowing from either the absence of a bribery statute applicable to Members of Congress or a holding that the statute violates the Constitution. As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses, by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence". (p. 525).

In the earlier part of the judgment we have found that for the past more than 100 years legislators in Australia and Canada are liable to be prosecuted for bribery in connection with their legislative activities and, with the exception of the United Kingdom, most of the Commonwealth countries treat corruption and bribery by members of legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There appears to be no reason why legislators in India should be beyond the pale of laws governing bribery and corruption when all other public functionaries are subject to such laws. We are, therefore, unable to uphold the above contention of Shri Thakur.

54. On a consideration of the submissions urged by the learned Counsel we arrive at the conclusion that on the basis of provisions contained in clauses (2) and (3) of Article 105, the appellants cannot claim immunity from prosecution on the charges that have been levelled against them.

Whether a `Public Servant

55. We may now come to the question whether a Member of Parliament is a public servant for the purpose of the 1988 Act. Prior to the enactment of the 1988 Act the law relating to prevention of corruption was governed by the Prevention of Corruption Act, 1947 (hereinafter referred to as the 1947 Act). In Section 2 of the 1947 Act it was provided that for the purpose of the said Act "public servant" means a public servant as defined in Section 21, IPC. Section 21, IPC provided as follows :

"21. "Public servant". - The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely :

First. - (Repealed by the Adaptation of Laws Order, 1950).

Second. - Every Commissioned Officer in the Military, Naval or Air Forces of India;

Third. - Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

Fourth. - Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the court and every person specially authorised by a Court of Justice to perform any of such duties;

Fifth. - Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth. - Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any court of Justice, or by any other competent public authority;

Seventh. - Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth. - Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;

Tenth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh. - Every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

Twelfth. - Every person -

(a) in the service or pay of the Government or renumerated by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)."

In R.S. Nayak v. A.R. Antulay, 1984(2) SCR 495 : AIR 1984 SC 684 [LQ/SC/1984/43] this Court construed the provisions of Section 21, IPC in order to determine whether a Member of the Legislative Assembly could be held to be a public servant for the purpose of the 1947 Act. The said question was considered in the light of clauses (3), (7) and (12)(a) of Section 21, IPC. It was pointed out that Members of Parliament in the United Kingdom are not covered by the Prevention of Corruption Act, 1906, the Prevention of Corruption Act, 1916 and the Public Bodies Corrupt Practices Act, 1889. The Court has also referred to the Bill called the Legislative Bodies Corrupt Practices Act, 1925 introduced in 1925 to give effect to the recommendations of the Reforms Enquiry Committee (known as Mudiman Committee) which sought to fill in the lacuna in the existing law and to provide for punishment of corrupt practices by or relating to members of Legislative Bodies constituted under the Government of India Act, 1919, and has taken note that the said Bill was not enacted into law. The Court has also referred to the Report of the Committee, known as the Santhanam Committee, appointed by the Government of India to suggest changes which would ensure speedy trial of cases of bribery, corruption and criminal misconduct and make the law otherwise more effective, which led to the amendments introduced in Section 21, IPC by the Anti-Corruption Laws (Amendment) Act, 1964 as well as the Statement made by Shri Hathi, Minister-in-charge, while piloting in the Lok Sabha the Bill which was enacted as the Anti-Corruption Laws (Amendment) Act, 1964. The Court held that a Member of the Legislative Assembly was not comprehended in the definition of `public servant in Section 21, IPC and that the amendments introduced in Section 21, IPC by the Amendment Act of 1964 did not bring about any change. While dealing with clause (12)(a) of Section 11, IPC, as amended by the Amendment Act of 1964, the Court observed that a person would be a public servant under clause 12(a) if (i) he is in the service of the Government, or (ii) he is in the pay of the Government, or (iii) he is remunerated by fees or commission for the performance of any public duty by the Government. It was held that even though a Member of Legislative Assembly receives his salary and allowances in his capacity as such Member, he is not a person in the pay of the Government inasmuch as the expression `Government connotes the executive and not the legislature and a Member of Legislative Assembly is certainly not in the pay of the executive. It was also held that a Member of Legislative Assembly is also not remunerated for performance of any public duty by the Government because he is not remunerated by fees paid by the Government, i.e. the Executive. At the same time, while dealing with the contention that a Member of Legislative Assembly is not performing any public duty it was observed :

"It is not necessary to examine this aspect because it would be rather difficult to accept an unduly vide submission that MLA is not performing any public duty. However, it is unquestionable that he is not performing any public duty either directed by the Government or for the Government. He no doubt performs public duties cast on him by the Constitution and his electorate. He thus discharges constitutional functions for which he is remunerated by fees under the Constitution and not by Executive". (at p. 713 of AIR).

The Court also considered the question whether a Member of the Legislative Assembly is a public servant with reference to clauses (3) and (7) of Section 21, IPC and held that a member of the Legislative Assembly did not fall within the ambit of the said clauses.

56. In the 1988 Act the expression ` public servant has been defined in Section 2(c) which read as follows :-

"2(c) `Public servant means -

(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;

(ii) any person in the service or pay of a local authority;

(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);

(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;

(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

(ix) any person who is the president, secretary or other office-bearer of a registered co-op

erative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);

(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;

(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;

(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.

Explanation 1. - Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.

Explanation 2. - Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation." Section 19 of the said Act deals with the previous sanction that is necessary for prosecution for the offences mentioned therein. It reads thus :

"19. Previous sanction necessary for prosecution. - (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) In case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(a) no finding sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act or any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings;

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation. - For the purposes of this section, -

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

Section 7, mentioned in Section 19, defines the offence of a public servant taking gratification other than legal remuneration in respect of an official act and the penalty therefor. Section 10 sets out the punishment for abetment by a public servant of offences defined in Section 8 or 9. Section 11 defines the offence of a public servant obtaining a valuable thing, without consideration, from a person concerned in a proceeding or business transacted by such public servant, and the penalty therefor. Section 13 defines the offence of criminal misconduct by a public servant and the penalty therefor. Section 15 sets out the punishment for an attempt to commit an offence under Section 13(1)(c) or (d).

153. The offences with which the appellants are charged are those set out in Section 120(B) of the Indian Penal Code read with Section 7, Section 12, Section 13(1)(d) and Section 13(2) of the said Act. (We do not here need to deal with the offence under Section 293 of the Indian Penal Code with which some of the accused are charged). These provisions read thus :

"Section 120-B (of the Indian Penal Code). Punishment of criminal conspiracy. - (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Section 7 (of the said Act). Public Servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Explanations. - (a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.

Section 12. Punishment for abetment of offences defined in Section 7 or 11. - Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Section 13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct -

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he, -

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation. - For the purpose of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."

154. The said Act replaced the Prevention of Corruption Act, 1947 (the 1947 Act). The said Act was enacted "to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith." Its Statement of Objects and Reasons reads thus :

"Statement of Objects and Reasons. - 1. The Bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions.

2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotton wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions more effective in combating corruption among public servants.

3. The Bill, inter alia, envisages widening the scope of the definition of the expression "public servant", incorporation of offences under Sections 161 to 165-A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.

4. Since the provisions of Sections 161 to 161-A are incorporated in the proposed legislation with an enhanced punishment it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision.

5. The notes on clause explain in detail the provisions of the Bill."

155. In the 1947 Act the definition of "public servant" in the Indian Penal Code was adopted, Section 21 whereof reads as follows :

21. "Public servant". - The words "public servant" denote a person falling under any of the descriptions hereinafter following. namely :

First. - [Repealed by the Adaptation of Laws Order, 1950.]

Second. - Every Commissioned Officer in the Military, Naval or Air Forces of India;

Third. - Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

Fourth. - Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised by a Court of Justice to perform any of such duties;

Fifth. - Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth. - Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent authority;

Seventh. - Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth. - Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;

Tenth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh. - Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

Twelfth. - Every person -

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)."

Section 6 of the 1947 Act dealt with the previous sanction necessary for prosecution. It reads thus :

"6. Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code (45 of 1860), or under sub-section (2) or sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction.

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."

156. It is not in dispute that the prosecution against all the accused have not received the previous sanction contemplated by Section 19 of the said Act.

157. Mr. P.P. Rao submitted that a Constitution Bench had in the case of R.S. Nayak (supra), held that a member of a State Legislature was not a public servant, but that the finding therein that he performed a public duty was erroneous and required reconsideration. The expression `public duty in Section 2(b) of the said Act meant a duty in the context of an interest which could be enforced at law. A mandamus could not issue to a member of Parliament or a member of a State legislature to perform his duty for he could not be compelled to speak or to vote. It was permissible to refer to the speech in Parliament of the Minister who had moved the Bill that became the said Act. He had stated, in response to a question about the position of a member of Parliament or a member of a Legislative Assembly, thus : "......... We have not done anything different or contrary to the law as it stands today. Under the law, as it stands today, the Supreme Court has held in Antulays case that a Member of a Legislative Assembly is not a public servant within the meaning of Section 21 of the Indian Penal Code." That this was really the position was supported by the fact that two conditions had to be satisfied for the purposes of bringing someone within the purview of the said Act, namely, that he should be a public servant (Section 2) and there should be an authority competent to remove him from his office (Section 19). In this behalf, reliance was placed upon the judgment in K. Veeraswany (supra). The judgment of the Delhi High Court under appeal noted that it was not disputed that there was no authority competent to remove members of Parliament from their office. This had also been found by the Orissa High Court in Habibullah Khan v. State of Orissa, 1993 Cri LJ 3604. A member of Parliament and a member of a State legislature did not hold an office. Section 2(c)(viii) of the said Act postulated the existence of an office independent of the person holding it, and that, by virtue of the office, the holder was authorised or required to perform a public duty. That a member of Parliament did not hold an office was apparent from the Constitution. Whereas the Constitution spoke of other functionaries holding offices, members of Parliament were said to occupy seats. The conclusion, therefore, was inescapable that the accused could not be prosecuted under the said Act and the charges had to be quashed. Mr. D.D. Thakur echoed these submissions. He added that it was legally permissible, but morally impermissible, for a legislator to vote in exchange for money. The clauses of Section 2(c) had to be construed ejusdem generis and, so read, could not cover members of Parliament or the State legislatures. Having regard to the fact that the Minister had made a representation to Parliament when the Bill was being moved that it did not cover members of Parliament and the State legislature, it could not be argued on behalf of the Union Government, by reason of the principle of promissory estoppel, that the said Act covered members of Parliament and the State legislatures. The said Act only removed the surplusage in the then existing definition of "public servant" and had to be construed only in that light. The inclusion of members of Parliament in the said Act was not "clearly implicit" nor "irresistibly clear". A member of Parliament had only privileges given to him under the Constitution; his only obligation was to remain present for a given number of days. Mr. Sibal adopted the arguments of Mr. Rao. He added that the Constitution cast no duty or obligation upon a member of Parliament. Consequently, there was no authorisation or requirement to perform a duty under the provisions of Section 2(c)(viii) of the said Act. An authority competent to remove a public servant necessarily contemplated an authority competent to appoint him. There was no authority competent to appoint a member of Parliament and, therefore, there was no authority which could remove him.

158. The Attorney-General submitted that the object behind enacting the said Act was to widen the coverage of the anti-corruption laws, as had been stated in its Statement of Objects and Reasons. `Public office had been defined in Blacks Law Dictionary (Sixth edition, p. 1082) thus : "The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of Government for the benefit of the public. An agency for the State, the duties of which involve in their performance the exercise of some portion of sovereign power, either great or small." The Shorter Oxford Dictionary (page 1083) defined "Office" thus, "A position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority." In Antulays case it had been held that a member of a legislative assembly "performs public duties cast on him by the Constitution and his electorate". That a member of Parliament occupied an office had been the view taken in the case of Bunting (1884-5(7) Ontario Reports 524) and Boston 1923(33) CLR 386 (referred to above). A member of Parliament performed the sovereign function of law making and in regard to the exchequer. He had a fundamental duty to serve. He undertook high public duties which were inseparable from his position. A member of Parliament, therefore, held an office. The Constitution provided the number of seats for members of Parliament. The tenure of a member of Parliament was fixed. He received a salary and other allowances. It was clear from the Constitution that he performed public duties. the oath that he took referred to his obligation to "faithfully discharge the duty" upon which he was about to enter. The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament was entitled to receive a salary per mensem "during the whole of his term of office" and an allowance per day "during any period of residence on duty". The accused, other than D.K. Audi Keshavulu and M. Thimmegowda, were, therefore, public servants within the scope of the said Act and could be charged thereunder. Reference to the provisions of Section 19 of the said Act and to the Ministers speech on the Bill that became the said Act was, consequently, not called for. The provisions of Section 19 were attracted only when a public servant had an authority competent to remove him. Where, as in the case of a member of Parliament or a State legislature, there was no authority which was competent to remove a public servant, the provisions of Section 19 were not attracted and a prosecution could be launched and taken cognizance of without previous sanction. Alternatively, the authority to remove a member of Parliament was the President under the provisions of Article 103 of the Constitution.

159. There can be no doubt that the coverage of Section 2(c) of the said Act is far wider than that of Section 21 of the Indian Penal Code. The two provisions have only to be looked at side by side to be sure that more people can now be called public servants for the purposes of the anti-corruption law. There is, therefore, no reason at all why S. 2(c) of the said Act should be construed only in the light of the existing law and not on its own terms. It is for the Court to construe S. 2(c). If the Court comes to the conclusion that members of Parliament and the State Legislatures are clearly covered by its terms, it must so hold. There is then no reason to resort to extraneous aids of interpretation such as the speech of the Minister piloting the Bill that became the said Act. The true interpretation of a statute does not depend upon who urges it. The principle of promissory estoppel has no application in this behalf. Further, if the Court comes to the conclusion, based on S. 2(c) itself, that members of Parliament and the State legislatures are, clearly, public servants no resort to the provisions of S. 19 is required in this regard. The words "public servant" in Section 19 must then bear that meaning that is attributed to them on the construction of the definition thereof in Section 2(c).

160. A public servant is "any person who holds an office by virtue of which he is authorised or required to perform any public duty." Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by S. 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest." In a democratic form of Government it is the member of Parliament or a State legislature who represents the people of his constituency in the highest law making bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the States shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the Public and the community at large would have greater interest. The submission that this Court was in error in Antulays case (supra) in holding that a member of a State legislature "performs public duties cast on him by the Constitution and his electorate" must be rejected outright. It may be - we express no final opinion - that the duty that a member of Parliament or a State legislature performs cannot be enforced by the issuance of a writ of mandamus but that is not a sine qua non for a duty to be a public duty. We reject the submission, in the light of what we have just said, that a member of Parliament has only privilege no duties. Members of Parliament and the State legislatures would do well to remember that if they have privileges it is the better to perform their duty effectively and fearlessly representing their constituencies.

161. In Antulays case (supra) the question relevant for our purpose was whether a member of a Legislative Assembly was a public servant within the meaning of that expression in clauses 12(a), (3) and (7) of Section 21 of the Indian Penal Code. These clauses read thus:

"21. The words `public servant denote a person falling under any of the descriptions hereinafter following, namely :-

Third - Every Judge including any person empowered by law to discharge, whether by himself or as a member of, any body of persons, any adjudicatory functions.

Seventh - Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement.

Twelfth - Every person -

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government."

This Court held that a member of a Legislative Assembly did not satisfy the ingredients of these clauses and that, therefore, he was not a public servant within the meaning of that expression in Section 21 of the Indian Penal Code. It was in this context that this Court made by the observation that we have already quoted. Having regard to the fact that there was no clause in Section 21 of the Indian Penal Code which is comparable to Section 2(c)(viii) of the said Act, the decision in Antulays case is of little assistance in this context.

162. The judgment of the Orissa High Court in the case of Habibulla Khan (supra) is of assistance because it considered whether a member of a Legislative Assembly was a public servant within the meaning of Section 2(c)(viii) of the said Act. Paragraphs 5, 7, 8 and 9 of the principal judgment are relevant. They read thus :

"5. For the aforesaid clause to be attracted, two requirements must be satisfied : (i) an M.L.A. must hold an office; and (ii) he must perform public duty by virtue of holding that office. The meaning of the word `office has been the subject-matter of various decisions of the apex Court and Shri Rath in his written note dated 27.4.1993 has dealt with these decisions in pages 6 to 12, in which reference has been made to what was held in this regard in (1) Maharaj Shri Govindlal Jee v. C.I.T., Ahmedabad, 34 ITR 92 [LQ/BomHC/1958/43] : AIR 1959 Bombay 100 (which is a judgment of Bombay High Court rendered by Chagla, C.J.); (2) Champalal v. State of Madhya Pradesh, AIR 1971 Madhya Pradesh 88, in which the definition of the word "office" given in Corpus Juris Secundum "A position or station in which a person is employed to perform certain duty" was noted; (3) Statesman v. H.R. Deb (supra) which is a rendering by a Constitution Bench stating "an office means no more than a position to which certain duties are attached"; (4) Kanta Kathuria (supra) in which Hidayatulla, C.J., on behalf of self and J.K. Mitter, J., who were in minority, after referring to the Constitution Bench decision in Statesmans case, referred to the observations of Lord Wright in McMillan (supra), that the meaning of the word `office covered four columns of the New English Dictionary, but the one taken as most relevant was "(a) position or place to which certain duties are attached, especially one of more or less public character"; whereas Sikri, J. speaking for the majority referred to the definition given by Lord Atkin, which was "a subsisting permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders" by further stating that there was no essential difference between the definitions given by Lord Wright and Lord Atkin; and Madhukar v. Jaswant, AIR 1976 SC 2283 [LQ/SC/1976/120] , in which the definition given in the Statesmans case was quoted with approval.

xxx xxx xxx"

7. Shri Das, learned Government Advocate, does not contest the submission of Shri Rath that the word `office should mean, to repeat, "no more than a position to which certain duties are attached, specially of a public character". Let it be seen as to whether the test mentioned by Sikri, J. is satisfied, which as already noted, is that there must be an office which exists independently of the holder of that office. To substantiate this part of his submission, Shri Rath has referred in his written note first to Article 168 of the Constitution which has provided that for every State there shall be a Legislature which shall consist of the Governor, and in case of some States, two Houses and in case of other one House. Article 170 states that the Legislative Assembly of each State shall consist of not more than 500 and not less than 60 members chosen by direct election from the territorial constituencies in the State for which purpose the State is divided into equal number of territorial constituencies. In Article 172, duration of the Legislative Assembly has been specified to be for five years, and Article 173 deals with the conditions of eligibility. Reference is then made to certain provisions of the Representation of the People Act, 1950, which has provided for total number of seats in the Legislative Assembly, and so far as Orissa is concerned, the Second Schedule mentions that the Orissa Legislative Assembly shall consist of 147 members.

8. Relying on the aforesaid provisions, it is contended and rightly, by Shri Rath that the office of the MLA is created by the Constitution read with the Representation of the People Act, 1950, whereas the actual election of MLAs. is supervised, directed and controlled by the provisions contained in Articles 324 to 329 of the Constitution and the provisions of the Representation of the People Act, 1951, which brings home the distinction between "office" and "holder of the office".

9. The aforesaid submission appears to us to be unassailable. We would, therefore, accept the same by stating that an MLA does hold an office, which is one of the two necessary requirements to attract the definition of "public servant", as given in clause (viii) of the Act. Another requirement, as already mentioned, is performance of public duty as holder of such office. This aspect has been dealt with by Shri Rath in paragraph 7 of his written note wherein mention has been made about various duties attached to the office of the MLA as would appear from Chapter III of Part VI of the Constitution - the same being, making of laws, acting conjointly to effectively control the activities of the executive, approval of the finance bill, etc. Indeed, no doubt can be entertained in this regard in view of what was stated in paragraph 59 of Antulays case, which is as below :-

".......... it would be rather difficult to accept an unduly wide submission that MLA is not performing any public duty. However it is unquestionable that he is not performing any public duty either directed by the Government or for the Government. He no doubt performs public duty cast on him by the Constitution and his electorate. He thus discharges constitutional functions..........."

Having held that a member of a Legislative Assembly was a public servant under the said Act, the Orissa High Court went on to consider which authority was competent to give sanction for his prosecution. That is an aspect with which we are not immediately concerned and we shall revert to this judgment later.

163. We think that the view of the Orissa High Court that a member of a Legislative Assembly is a public servant is correct. Judged by the test enunciated by Lord Atkin in McMillan (supra) and adopted by Sikri, J. in Kanta Kathurias case the position of a member of Parliament, or of a Legislative Assembly, is subsisting, permanent and substantive; it has an existence independent of the person who fills it and it is filled in succession by successive holders. The seat of each constituency is permanent and substantive. It is filled, ordinarily for the duration of the legislative term, by the successful candidate in the election for the constituency. When the legislative term is over, the seat is filled by the successful candidate at the next election. There is, therefore, no doubt in our minds that a member of Parliament, or of a Legislative Assembly, holds an office and that he is required and authorised thereby to carry out a public duty. In a word, a member of Parliament, or of a Legislative Assembly, is a public servant for the purposes of the said Act.

164. This brings us to the issue of sanction under the provisions of Section 19 of the said Act. The section has been quoted. Sub-section (1) opens with the words "No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction........ " Sanction is not required in respect of all offences covered by the said Act; it is required only in respect of the offences that are punishable under Sections 7, 10, 11, 13 and 15. Secondly, the person charged must be a public servant at the point of time the court is asked to take cognizance; that is the material time for the purposes of the Section. Thirdly, the sanction must precede cognizance; it must be prior sanction. Fourthly, and this from the point of view of this judgment is most material, the section covers all public servants. In other words, if any public servant is charged with an offence punishable under the aforesaid sections, the court shall not take cognizance in the absence of sanction. That the section applies to all public servants is also clear from the three clauses of sub-section (1). Clause (a) says that the sanction must be of the Central Government in the case of a public servant who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government. Clause (b) says that the sanction must be of a State Government in the case of a public servant who is employed in connection with the affairs of that State and is not removable from his office save by or with the consent of the State Government. Clause (c) says that the sanction in the case of any other public servant must be of the authority competent to remove him from his office. Clause (c) is the basket into which all public servants, other than those covered by the terms of clauses (a) and (b), fall.

165. Upon the plain language of sub-section (1) of Section 19, analysed above, the argument of the learned Attorney-General that the provisions of Section 19 are applicable only to a public servant who is removable from his office by an authority competent to do so must fail.

166. In support of the argument, the learned Attorney-General relied upon the judgment of this Court in S.A. Venkataramans case (supra) in which, with reference to the provisions of Section 6 of the 1947 Act, it was observed (at p. 111 of AIR) :

"When the provisions of Section 6 of the Act are examined it is manifest that two conditions must be fulfilled before its provisions become applicable. One is that the offences mentioned therein must be committed by a public servant and the other is that that person is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government or is a public servant who is removable from his office by any other competent authority. Both these conditions must be present to prevent a court from taking cognizance of an offence mentioned in the section without the previous sanction of the Central Government or the State Government or the authority competent to remove the public servant from his office. If either of these conditions is lacking, the essential requirements of the section are wanting and the provisions of the section do not stand in the way of a court taking cognizance without a previous sanction."

The appellant was a public servant who had been dismissed from service consequent upon a departmental inquiry. After his dismissal he was charged with the offence of criminal misconduct under the 1947 Act and convicted. The appellant contended that no court could have taken cognizance of the charge against him because there was no prior sanction under Section 6 of the 1947 Act. This Court found, as aforestated, that for the applicability of Section 6 two conditions had to be fulfilled, namely, (i) the offence should have been committed by a public servant, and (ii) the public servant is removable from his office by the Central Government or a State Government or a competent authority. This Court held that sanction was not a pre-requisite to the cognizance of the offence with which the appellant was charged and the conditions were not satisfied because, when cognizance of the offence was taken, the appellant had ceased to be a public servant. That the appellant was a public servant was not in dispute; that no sanction had been obtained was also not in dispute. This Court was not concerned with a situation in which there was a public servant but there was no authority competent to remove him from his office. The observations of this Court quoted above were made in the context of the facts of the case and relative thereto. They cannot be examined de hors the facts and read as supporting the proposition that the provisions of Section 19 are applicable only to a public servant who is removable from his office by an authority competent to do so and, if there is no authority competent to remove a public servant from his office, the embargo arising under Section 19 is not attracted and Section 19 does not come in the way of a Court taking cognizance. In any event, we cannot, with great respect, agree that the observations fully analyse the provisions of Section 19. We have set out above how we read it; as we read it, it applies to all who are public servants for the purposes of the said Act.

167. It is correct to say that Section 19 contemplates that for every public servant there must be an authority competent to remove him from his office and that, therefore, the effort must be to identify that authority. But if no authority can be identified in the case of a public servant or a particular category of public servant, it cannot lead to the conclusion that was urged on behalf of the accused, namely, that he is not a public servant or this is not a category of public servant within the meaning of the said Act. We have found, based on the language of Section 2(c)(viii) read with Section 2(b), that members of Parliament are public servants. That finding, based upon the definition section, must apply to the phrase `public servant wherever it occurs in the said Act. It cannot change if it be found that there is no authority competent to remove members of Parliament from office. Members of Parliament would then, not be liable to be prosecuted for offences covered by Sections 7, 10, 11, 13 and 15, the condition of prior sanction being incapable of being satisfied, but they would remain liable to prosecution for offences under the said Act other than those covered by Sections 7, 10, 11, 13 and 15.

168. The Attorney General drew our attention in this context to the conclusion of the Orissa High Court in the case of Habibullah Kahns case (supra) aforementioned. The Orissa High Court found that there was no authority which could grant previous sanction, as contemplated by Section 19 of the Act, in the case of a member of a Legislative Assembly. Counsel, the High Court recorded, did not contend that even if there be no person competent to give sanction for prosecuting a member of a Legislative Assembly under the said Act, nonetheless sanction for his prosecution had to be obtained because he was a public servant. The High Court was satisfied that although

"the MLA would come within the fold of the definition of `public servant, as given in Section 2(c) of the Act, he is not the type of `public servant for whose prosecution under the Act, previous sanction as required by Section 19 is necessary. We quite realise the anomaly of our conclusion, because though Section 19 of the Act makes no distinction between one public servant and another for the purpose of previous sanction, we have made so. But this is a result which we could not have truly and legally avoided."

169. We do not think that the view of the Orissa High Court stated above is correct. Since Section 6 of the 1947 Act and Section 19 of the said Act make no distinction between one public servant and another for the purpose of previous sanction, the conclusion must be that where the Court finds that there is no authority competent to remove a public servant, the public servant cannot be prosecuted for offences punishable under Sections 7, 10, 11, 13 and 15 of the said Act because there is no authority that can sanction such prosecution.

170. This Court in the case of K. Veeraswami (supra), considered the applicability of the 1947 Act to a Judge of a High Court or the Supreme Court. A case under the provisions of Section 5(2) read with Section 5(1)(e) of the 1947 Act had been registered against the appellant, the Chief Justice of a High Court, and on 28th February, 1976, an FIR was filed in the Court of Special Judge. The appellant retired on attaining the age of superannuation on 8th April, 1976. On 15th December, 1977, a charge sheet was filed and process was issued for appearance of the appellant. The appellant moved the High Court to quash the proceedings. The High Court dismissed the application but granted certificate of fitness to appeal. This Court, by a majority, concluded that a Judge of a High Court and the Supreme Court was a public servant within the meaning of Section 2 of the 1947 Act. A prosecution against him could be lodged after obtaining the sanction of the competent authority under Section 6 of the 1947 Act. For this purpose, the President of India was the authority to give previous sanction. No criminal case could be registered against a Judge of a High Court or the Supreme Court unless the Chief Justice of India was consulted. Such consultation was necessary also at the stage of examining whether sanction for prosecution should be granted, which should be guided by and in accordance with the advice of the Chief Justice in India. Specifically, the majority view was that a public servant could not be prosecuted for the offences specified in Section 6 of the 1947 Act unless there was prior sanction for prosecution from a competent authority. Section 6 was primarily concerned with seeing that a prosecution for the specified offences did not commence without the sanction of the competent authority. A Judge of the superior Courts squarely fell within the purview of the 1947 Act. The second requirement under cl. (c) of Section 6(1) was that for the purpose of granting sanction for his prosecution there must be an authority and the authority must be competent to remove him. It was, therefore, "now necessary to identify such authority..........."

171. The learned Attorney General laid stress upon this observation. He submitted that the Court should identify the authority competent to remove a member of Parliament, or a State Legislature, from his office if it found such member to be a public servant within the meaning of Section 2(c) and did not accept his contention that the provisions of Section 19 did not apply, there being no authority competent to remove such member from his office. In other words, it was the alternative submission of the learned Attorney-General that there was an authority competent to remove such member from his office : in the case of a member of parliament it was the President and in the case of a member of a State Legislature it was the Governor of the State. We shall address ourselves to the submission in a moment.

172. The passage in Veeraswamys case (supra) relied upon by learned counsel for the appellants is contained in the dissenting judgment of Verma, J. He said :

"Clauses (a), (b) and (c) in sub-section (1) of Section 6 exhaustively provide for the competent authority to grant sanction for prosecution in case of all the public servants falling within the purview of the Act. Admittedly, such previous sanction is a condition precedent for taking cognizance of an offence punishable under the Act, of a public servant who is prosecuted during his continuance in the office. It follows that the public servant falling within the purview of the Act must invariably fall within one of the three clauses in sub-section (1) of Section 6. It follows that the holder of an office, even though a `public servant according to the definition in the Act, who does not fall within any of the clauses (a), (b) or (c) of sub-section (1) of Section 6 must be held to be outside the purview of the Act since this special enactment was not enacted to cover that category of public servants in spite of the wide definition of `public servant in the Act. This is the only manner in which these provisions of the Act can be harmonized and given full effect. The scheme of the Act is that a public servant who commits the offence of criminal misconduct, as defined in the several clauses of sub-section (1) of Section 5, can be punished in accordance with sub-section (2) of Section 5, after investigation of the offence in the manner prescribed and with the previous sanction of the competent authority obtained under Section 6 of the Act, in trial conducted according to the prescribed procedure. The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a public servant covered by the Act, it must follow that the holder of an office who may be a public servant according to the wide definition of the expression in the Act but whose category for the grant of sanction for prosecution is not envisaged by Section 6 of the Act, is outside the purview of the Act, not intended to be covered by the Act. This is the only manner in which a harmonious construction of the provisions of the Act can be made for the purpose of achieving the object of that enactment."

173. We are unable, with respect, to share this view in the dissenting judgment. It does not appear to take into reckoning the fact that sanction is not a pre-requisite for prosecution for all offences under the statute but is limited to those expressly specified in the sanction provision. Secondly, the question as to whether or not a person is a public servant within the meaning of the statute must be determined having regard to the definition of a public servant contained in the statute. If the person is found to be a public servant within the meaning of the definition, he must be taken to be a public servant for the purposes of all provisions in the statute in which the expression `public servant occurs. If, therefore, a person is found to satisfy the requirements of the definition of a public servant, he must be treated as a public servant for the purposes of the sanction provision. In our opinion, it cannot be held as a consequence of the conclusion that there is no authority competent to remove from office a person who falls within the definition of public servant, that he is not a public servant within the meaning of the statute. Where a person is found to satisfy the requirements of the definition of a public servant, the Court must, as was said by the majority in Veeraswamis case, attempt to identify the authority competent to remove him from his office. The majority identified that authority in the case of a Judge of a High Court and the Supreme Court and did not need to consider the effect upon the prosecution of not being able to find such authority.

174. It is convenient now to notice a submission made by Mr. Sibal based upon Veeraswamis case (supra). He urged that just as this Court had there directed that no criminal prosecution should be launched against a Judge of a High Court or the Supreme Court without first consulting the Chief Justice of India, so we should direct that no criminal prosecution should be launched against a member of Parliament without first consulting the Speaker. As the majority judgment makes clear, this direction was considered necessary to secure the independence of the judiciary and in the light of the "apprehension that the Executive being the largest litigant is likely to abuse the power to prosecute the Judges." Members of Parliament do not stand in a comparable position. They do not have to decide day after day disputes between the citizen and the Executive. They do not need the additional protection that the Judges require to perform their constitutional duty of decision making without fear or favour.

175. Before we move on to consider the alternative submission of the Attorney-General, we must note the judgment in S.A. Venkataramans case (supra), upon which the learned Attorney-General relied for his first proposition, namely, that the provisions of Section 19 do not apply to a public servant in respect of whom there is no authority competent to remove him from his office. The appellant Venkataraman was a public servant. After he was dismissed from service consequent upon a departmental inquiry, he was charged with criminal misconduct under the 1947 Act and was convicted. The contention before this Court was that the trial Court could not have taken cognizance of the offence because no sanction for the prosecution had been produced before it. This Court held that no sanction for the prosecution of the appellant was required because he was not a public servant at the time cognizance of the offence was taken. The following passage in this Courts judgment was relied upon (at p. 111 of AIR) :

"It was suggested that cl. (c) in Section 6(1) refers to persons other than those mentioned in cls. (a) and (b). The words "is employed" are absent in this clause which would, therefore, apply to a person who had ceased to be a public servant though he was so at the time of the commission of the offence. Clause (c) cannot be construed in this way. The expressions "in the case of a person" and "in the case of any other person" must refer to a public servant having regard to the first paragraph of the sub-section. Clauses (a) and (b), therefore, would cover the case of a public servant who is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government and cl. (c) would cover the case of any other public servant whom a competent authority could remove from his office. The more important words in cl. (c) are "of the authority competent to remove him from his office". A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority. Section 2 of the Act states that a public servant, for the purpose of the Act, means a public servant as defined in Section 21 of the Indian Penal Code. Under cl. (c), therefore, any one who is a public servant at the time a Court was asked to take cognizance, but does not come within the description of a public servant under cls. (a) and (b), is accused of an offence committed by him as a public servant as specified in Section 6 would be entitled to rely on the provisions of that section and object to the taking of cognizance without a previous sanction."

We do not find in the passage anything that can assist the Attorney Generals submission rather, it is supportive of the view that we have taken and indicates that the third clause in the sanction provision is a catch-all clause into which all public servants who are not covered by the first two clauses fall. In other words, to prosecute a public servant the prior sanction of the authority competent to remove him is a must.

176. For the purpose of appreciating the argument that the President is the authority competent to remove a member of Parliament from his office, Articles 101, 102 and 103 under the head "Disqualifications of Members" in Chapter II of Part V of the Constitution need to be set out. (Similar provisions in relation to members of State Legislatures are contained in Articles 190, 191 and 192 under the same head in Chapter III of Part VI of the Constitution). Articles 101, 102 and 103 read thus :

"101. Vacation of Seats. - (1) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other.

(2) No person shall be a member both of Parliament and of a House of the Legislature of a State and if a person is chosen a member both of Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules made by the President, that persons seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State.

(3) If a member of either House of Parliament -

(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 102 or

(b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant :

Provided that in the case of any resignation (sic) to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit; the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.

(4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

103. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as and for being a member of either House of Parliament -

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent Court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is disqualified by or under any law made by Parliament.

Explanation. - For the purpose of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.

(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

102. Decision on questions as to disqualifications of members. - (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

177. By reason of Article 101(3)(a), the seat of a member of Parliament becomes vacant if he becomes subject to the disqualifications mentioned in Article 102(1) and (2). Those disqualifications are the holding of an office of profit under the Union or State Government, other than an office declared by Parliament by law not to disqualify the holder; the declaration by a competent Court of unsoundness of mind; undischarged insolvency; the citizenship of a foreign State or acknowledgment of allegiance or adherence thereto; and disqualification under any law made by Parliament or under the Tenth Schedule. Under the provisions of Article 103, it is only if a question arises as to whether a member of Parliament has become subject to any of the disqualifications aforementioned, other than disqualification under the Tenth Schedule, that the question is referred to the President for his decision. The Presidents decision is final but, before giving it, the President has to obtain the opinion of the Election Commission and has to act according to such opinion."

178. The question for our purposes is whether, having regard to the terms of Articles 101, 102 and 103, the President can be said to be the authority competent to remove a member of Parliament from his office. It is clear from Article 101 that the seat of a member of Parliament becomes vacant immediately upon his becoming subject to the disqualifications mentioned in Article 102, without more. The removal of a member of Parliament is occasioned by operation of law and is self operative. Reference to the President under Article 103 is required only if a question arises as to whether a member of Parliament has earned such disqualification; that is to say, if it is disputed. The President would then have to decide whether the member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to the date upon which the disqualification was earned. Without, therefore, having to go into the connotation of the word "removal" in service law, it seems clear that the President cannot be said to be the authority competent to remove a member of Parliament from his office.

179. The Attorney-General submitted that the scheme of the said Act, as compared to the 1947 Act, had undergone an important change by reason of the introduction of sub-section (3) in section 19. Sanction was no longer a condition precedent. A trial in the absence of sanction was not a trial without inherent jurisdiction or a nullity. A trial without sanction had to be upheld unless there had been a failure of justice. This feature had a material bearing on the present case. The trial Court had taken cognizance of the charges against the accused and the High Court had dismissed the revision petition to quash the charges. In the light of Section 19(3), this Court should not interdict the charges, particularly, since a complaint filed today would not require sanction against most of the accused. Having regard to the effect of our findings upon the accused, it is not necessary to consider this submission.

180. We have, as aforestated, reached the conclusion that members of Parliament and the State legislatures are public servants liable to be prosecuted for offences under the said Act but that they cannot be prosecuted for offences under Sections 7, 10, 11 and 13 thereof because of want of an authority competent to grant sanction thereto. We entertain the hope that Parliament will address itself to the task of removing this lacuna with due expedition.

Conclusions.

181. We now set down the effect upon the accused of our findings.

We have held that the alleged bribe takers who voted upon the no-confidence motion, that is, Suraj Mandal, Shibu Soren, Simon Marandi, Shailender Mehto, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Charan Das, Abhay Pratap Singh and Haji Gulam Mohammed (accused Nos. 3, 4, 5, 6, 16, 17, 18, 19, 20 and 21) are entitled to the immunity conferred by Article 105(2).

182. D.K. Audi Keshavulu and M. Thimmegowda (accused Nos. 12 and 13) were at all relevant times private persons. The trial on all charges against them must proceed.

183. When cognizance of the charges against them was taken, Buta Singh and N.M. Ravanna (accused Nos. 7 and 9) were not public servants. The question of sanction for their prosecution, does not, therefore, arise and the trial on all charges against them must proceed.

184. P.V. Narasimha Rao, Satish Sharma, V. Rajeswar Rao, Ram Linga Reddy, M. Veerappa Moily and Bhajan Lal (accused Nos. 1, 2, 8, 10, 11 and 14) were public servants, being either members of Parliament or a State legislature, when cognizance of the charges against them was taken. They are charged with substantive offences under Section 120B of the Indian Penal Code and Section 12 of the said Act. Since no prior sanction is required in respect of the charge under Section 12 of the said Act, the trial on all charges against them must proceed.

185. Ajit Singh (accused No. 15) was a public servant, being a member of Parliament, when cognizance of the charges against him was taken. He is charged with substantive offences under Section 120B of the Indian Penal Code and Sections 7 and 13(2) of the said Act. The trial of the charge against him under Section 120B of the Indian Penal Code must proceed.

186. The appeals shall now be placed before a bench of three learned judges for hearing, on any other points that may be involved, and final disposal.

187. Order accordingly.