Holding

Members of Parliament are public servants under the Prevention of Corruption Act, 1988 and are not protected by Article 105(2) from prosecution for bribery, and although no authority can grant prior sanction for offences requiring it, the court may proceed with prosecution after obtaining the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha’s permission.

Summary

The Supreme Court examined whether Members of Parliament (MPs) could claim immunity under Article 105(2) of the Constitution for offences of offering or accepting bribes to influence their speech or vote in Parliament, and whether they fall within the definition of "public servant" under the Prevention of Corruption Act, 1988 (PCA). The Court held that MPs are public servants for the purposes of the PCA and are not shielded by Article 105(2) from prosecution for bribery, though the PCA requires prior sanction for certain offences (Sections 7, 10, 11, 13, 15) which cannot be obtained because no authority is competent to remove an MP. Consequently, the court may take cognizance of those offences, but prosecution for them must obtain the permission of the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha. The appeals were set aside and remitted for further hearing.

Issues considered

Does Article 105(2) of the Constitution grant MPs immunity from criminal prosecution for bribery related to their parliamentary speech or vote?
Are MPs considered "public servants" under Section 2(c) of the Prevention of Corruption Act, 1988?
Is prior sanction under Section 19 of the PCA required to prosecute MPs for offences under Sections 7, 10, 11, 13 and 15?
How should the phrase "in respect of" in Article 105(2) be interpreted in the context of bribery allegations?
Who is the competent authority to grant sanction for prosecuting an MP under the PCA?

Legislation cited

Code of Criminal Procedure, 1973s. 190
Indian Penal Code, 1860s. 120B, s. 193
Prevention of Corruption Act, 1988s. 12, s. 13(1)(d), s. 13(2), s. 19, s. 2(b), s. 2(c), s. 7

Subjects

parliamentary privilegeimmunitybriberyPrevention of Corruption Actpublic servantArticle 105prior sanctionno‑confidence motioncriminal conspiracyIndian Penal Code

Judgment

A P.V. NARASIMHA RAO ETC. ETC.
v.
STATE (CBl/SPE) ETC. ETC.

APRIL 17, 1998

B [S.C. AGRA WAL, G.N. RAY, DR. A.S. ANAND, S.P. BHARUCHA
ANDS. RAJENDRA BABU, JJ.]

Constitution ofIndia, Article I 05 (2)-/mmunity of Member of Parliament
jiwn prosecution in respect of vote given in Parliament-Fourteen Member~
C of Parliament (MPs) alleged to have received bribes ji-om other MPs in order
to defeat motion of no-confidence against government of the da}~Motion of
no-confidence defeated-Prosecution for offences under the Prevention of
Corruption Act, 1988 (PCA) ands. 120-B Jndiw1 Penal Code (/PC) launched
against both bribe takers and bribe givers-Whether bribe givers and bribe
D takers being MPs could claim immunity jiwn prosecution-Held, Per majority,
bribe givers do not enjoy immunity under Article 105 (2) and the trial
against them for substantive offences under s-12 PCA and s.120-B IPC must
proceed; fi1rther held, bribe takers entitled to immunity conferred by Article
105 (2)-Per Minority held, an MP does not enjoy immunity under Article
I 05 (2) from being prosecuted for offence of offer or acceptance of bribe for
E purpose of speaking or by giving his vote in Parliament or in any com mi/lees
thereof

Constitution of India, Article 105 (3)-Whether, on facts, MPs giving
bribes could seek immuni~v ji-om prosecution-Held, no.

Prevention of Corruption Act 1988, s.2(c)-Whether Member of
F Parliament a public servant-Held, yes-Indian Penal Code I860, s.21-
lnterprelation of Statutes.

Criminal Law-Preventi<;m of Corruption Act I 988, s.19 rlw ss. 7, I 0,
I 1, 13 and I 5 thereof-Sanction for prosecution ofMP for offence of offer and
G acceptance of bribes for voting in Parliament-Held, per majority-MPs
cannot be prosecwed for offences under Ss. 7, I 0, I I and I 3 PCA for want
of an authority competent lo grant sanction thereof-Per Minority held, in
absence of sanction court can take cognisance of offences mentioned in
s.19(1) but before filing charge sheet prosecuting agency shall obtain
permission of Chairman of Rajya Sabha or Speaker of Lok Sabha as the case
H may be.
870
f
P.V. NARASIMHA RAO v. STATE (CBI/SPE) 871
On July 26, 1993, a motion of no-confidence was moved in the Lok A
Sabha against the minority government of PVN. The support of 14 member
was needed to have the no-confidence motion defeated. On July 28, I993, the
no-confidence motion was lost, 251 members having voted in support and 265
against. Four Members of Parliament (MPs) owing allegiance to the JMM,
six MPs owing allegiance to the JD (AS) group voterl against the non-
confidence motion. AS, an MP owing allegiance to the JD (AS) abstained B
from voting thereon.

The case of the Central Bureau of Investigation (CBI) was that the
abovenament !V(Ps agreed to and did receive bribes, to the giving of which
PVN, MP and Prime Minister, and nine others including three MPs and four C
MLAs were parties, to vote against the non-confidence motion. A prosecution
being launched against the aforesaid alleged bribe givers and bribe takers
subsequent to the vote upon the non-confidence motion, cognizance was
taken by the Special Judge, Delhi.

The persons sought to be charged as aforesaid filed petitions in the D
High Court at Delhi seeking to quash the charges. The High court dismissed
• the partitions. In this court the appeals were heard by a bench of three
learned judges and then referred to a Constitution Bench. The appellants
contended that under Article 105 they were immune from the prosecution
and that, in any event, they could not be prosecuted under the Prevention of E
Corruption Act, 1988. (PCA).

Disposing of the appeals, this court.

HELD : Per Majority (Bharucha, J. for himself and S. Rajendera Babu,
J. with G.N. Ray, J. concurring): F

I. Appellants were public servants, being either members of Parliament
or a State legislature, when cognizance of the charges against them was
taken. They were charged with substantive offences under s.120-B of the
IPC and s.12 of the PCA. Since no prior sanction was required in respect G
of the charge under s.12 PCA, the trial on all charges against them had to
proceed. (941-H; 942-A(

2.1. The alleged bribe takers, other than AS, had the protection of
Article I 05 (2) and were not answerable in a Court of law for the alleged
conspiracy and agreement. The charges against them had to fail. (907-H) H

•
872 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 2.2 Article I 05 (2) did not provide that what was otherwise an offence
was not an offence when committed by an MP and had a connection with his
speech or vote therein. An MP was not answerable in a court of law for
something that had a nexus in his speech or vote in Parliament. If an MP
had, by his speech or vote in Parliament, committed an offence, he enjoyed,
by reason of Article 105 (2), immunity from prosecution therefor.
B [908-C-D)
2.3. Those who had conspired with the MP in the commission of that
offence had no such immunity. They could, therefore, be prosecuted for it.
[908-D-E]

Pandit M.S.M.Sharma v. Shri Sri Krishna Sinha, [1959] Supp. I SCR
C 806; Dr. Jatishi Chandra Ghosh v. Hari Sadhan Mukherjee, [1961] 3 SCR
486; Special Reference No. I of 1964, [1965] 1 SCR 412; TK. Jain v. NS.
Reddy, [1978] 1SCR612 and State of Karnataka v. Union of India, [1978]
2 SCR I, referred to.

D Bradlaugh v. Gossett., 12 Q.B.D. 271; Stockdale v. Hansard, 9 Ad. &
E.I; Church of Scientlogy of California v. Johnson Smith, (1972) All E.R.
378; Prebb/e v. Television New Zealand Ltd., (1994) 3 All., E.R. 407; R. v.
Currie; R v. White 13 SCR (NSW) 332; R. v. Bunting, (1885) Ontario
..
Reports 524; R. v. Boston, (1923) 33 Commonwealth Law Reports 386;
United States v. Daniel B.Brewster, 33 L. Ed. 2d 507; United States v. Thomas
E F. Johnson, 15 L. Ed. 2d 681; Fletcherv. Peck, 3 L. Ex. 162 and United States
i•. Henry He/stoski, 61 L. Ed. 2d 12, referred to.

The Report of the Royal Commission on Standards of Conduct in
Police Life, chaired by Lord Salmon (1976); The Law Commission, England
Consultation Paper (No.145);" Legislating the Criminal Code-Corruption";
F Halsbury's Laws of England, Fourth Edition, Vol. 11para37; The Library
of Congress publication" The Constitution of United States of America,
Analysis and Interpretation"; Erskine May's Treatise on The Law, Privileges,
Proceedings and Usage of Parliament, 22nd Ed., referred to.

G 3. The provisions of Article 105 (3) were not attracted and they did not
render assistance to the alleged bribe givers. [914-B]

Ex Parte Wason (1869) L.R. 4 QBD 573, referred to.

Erskine May's Treatise on The Law, Privileges, Proceedings and Usage
H of Parliament, 18th Ed. (1971) and 22nd ed., referred to .

•
P.V. NARASIMHARAOv. STATE (CBI/SPE) 873
4. The expression "in respect or' has to receive a broad meaning, that A
the alleged conspiracy and agreement had a nexus to and were in respect of
those votes and that the proposed inquiry in the criminal proceedings was
in regard to the motivation thereof. 1905-B]

Tolaram Relumal v. The State of Bombay, 119551 1 SCR 158 and State
of Madras v. Mis Swastik Tobacco Factory, 119661 3 SCR 79, referred to. B
Inland Revenue Commissioners v. Courts, 119631 2 All ER 722; Asher
v. Seaford Court Estates Ltd, (1950) A.C. 508 and Bieber ltd. v. Commissioners
of Income-tax, (1962) 3 All E.R. 294, referred to.

5.1. The coverage of section 2(c) of the PCA was far wider than that C
ofs.21 IPC. The two provisions had only to be looked at side by side to be
sure that more people could now be called public servants for the purposes
of the anti-corruption law. The words "public servant" in s.19 had to be~r
the meaning attributed to them on the construction of the definition thereof
in s.2(c). [926-D-FI D
5.2. There was 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 did not depend upon who urged it. The
principle of promissory estoppel had no application in this behalf. 1926-E]
E
6.1. A member of Parliament, or of a Legislative Assembly, was a
public servant for the purposes of the PCA. A member of Parliament, or of
a Legislative Assembly, held an office and was required and authorized
thereby to carry out a public duty. 1930-G-HI

R.S. Nayak v. A.R. Antulay, 119841 2 SCR 495; Habibullah Khan v. f
State of Orissa, (1993) Cr. L.J.,.3604; S.A. Venkataraman v. The State, 119581
SCR 1040 and K. Veeraswami v. Union of India, 1199113 SCR 189, referred
to.

6.2. Members of Parliament would not be liable to be prosecuted for
offences covered by Sections 7, 10, 11,13 and 15, the condition of prior G
sanction being incapable of being statisfied, bu(they would remain liable to
prosecution for offences under the said Act other than those covered by the
said provisions. 1933-DI

6.3. S.19 contemplated that for every public servant there had to be an
authority competent to remove him from his office. But if no authority could H
874 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A be identified in the case of a public servant it could not lead to the conclusion
that he was not a public servant. 1933-BI

6.4. The President could not be said to be the authority competent to ~ ~
remove a member of Parliament from his office.1935-AI

B 7. The trial against Accused 12 and 13, who were at all relevant times
private persons, had to proceed on all charges. When cognizance of the
charges against them was taken, accused Nos. 7 and 9 were not public
servants. The question of sanction for their prosecution, did not therefore,
arise and the tri;il on all charges against them had to proceed. 1941-F-G]

C 8. AS, not having cast a vote on the no-confidence motion, derived no
immunity from Article 105 (2). As was a public servant, being an MP when
cognizance of the charges against him was taken. He was charged with
substantive offences under s. 1208 IPC and ss.7 and 13 (2) of the PCA. The
trial of the charge against him under s.120B IPC had to proceed. 1942-B]

D Per Minority (Agrawal, J. for himself and Dr. A.S. Anand, J.)

I.I. A Member of Parliament did not enjoy immunity under Article
105(2) or under Article IO!'i(3) of the Constitution from being prosecuted
before a criminal court for an offence involving offer or acceptance of bribe
for the purpose of speaking or by giving his vote in Parliament or in any
E committees thereof. J942-FJ
1.2. The protection granted under Article I 05(2) could not be invoked
by any of the appellants to claim immunity from prosecution on the substantive
charge in respect of the offences punishable under Ss. 7, 13(2) read with
13(I)(d) and 12 of the PCA as well as the charge of criminal conspiracy
F under s.120B IPC read with ss.7 and 13(2) read with 13(1) (d) of the PCA.
1983-GJ
t.3. An interpretation of the provisions of Article I 05(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
G 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 basic structure of I
the Constitution. J980-B]
H 1.4. The criminal liability incurred by a Member of Parliament who
f P.V. NARASIMHA RAOv. STATE(CBl/SPE) 875

has accepted bribe for speaking or giving his vote in Parliament in a particular A
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 said or any vote given in Parliament.
1983-FI
Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha, 119591Supp.1 SCR B
806 at p. 856, and special Rreference No. 1of19641196511SCR413; Te)
Kiran Jain v. N. Sanjiva Redddy, (197111 SCR 612; The State of Tripura
v. The Province of East Bengal, 119511 2 SCR 1; Tolaram Relumal v. The
State of Bombay, (195511SCR158, and S.S. Light Railway Co. Ltd. v. Upper
Doab Sugar Mills Ltd, [1960[ 2 SCR 926, referred to.
c
Bradlaugh v. Gossett., [1884] 12 ABD 271; R v. Currie; R. v. White, 12
SCR (NSW) 332; R. v. Boston, (1923] 33 CLR 386; R v. Bunting (1884-5)
7 Ontario Reports 524; United States v. Johnson, 15 L Ed 2d 681; Burton
v. United States, 202 US 344; United States v. Brewster 33 L Ed 2d 507, and
United States v. Helstoski 61 Ed., 2d 12; Church of Scientology of California
v. Johnson Smith, [1972] l All ER 378; Prebble v. Television New Zealand D
Ltd, [1994] 3 All ER 407 and Paterson v. Chadwick, [19741 2 All ER 772,
referred to.

May's Parliamentary Practice, 21st Ed., p. 128; Royal Commission on
Standards of Conduct in Public Life, Bribery of Members of Parliament and
the Criminal Law by Graham Zellick, (1979] Public Law, P. 31 at pp 39-40; E
The Committee on Standards in Public Life, Lord Nolan (Nolan Committee);
Conflict of Interest: A commonwealth Study of Members of Parliament by
Gerard Carney, p. 1241; The Bribed Congressman's Immunity from Prosecution,
(1965-66) 75 Yale L.J. 335, at p. 341 and M.N. Kaul & S.L. Shakdher:
Practice and Procedure of Parliament, 4th Ed., at p. 254, referred to. F
2. The words 'in respect of' in Article 105 (2) should be constructed
to mean 'arising out of'. Thus constructed, the immunity conferred
.... thereunder would be confined to liability that arose out of or was attributable
to something that had been said or to a vote that had been given by a Member
in Parliament for any committee thereof. The immunity would be available G
only if the speech that had been made or the vote that had been given was
an essential and integral part of the cause of action for the proceedings
giving rise to the liability. [981-C-D]

State of Madras v. Mis Swastik Tobacco Factory, Vedaranyam, (1966]
3 SCR 79 and Sub-Committee on Judicial Accountability v. Union of India, H
876 SUPREME COURT REPORTS (1998] 2 S.C.R.

A 119911 4 sec 699, referred to.
Kilbourn v. Thompson, 26 L. Ed. 377, referred to.

3. The offence of bribery would be made out against the receiver if he
took or agreed to take money for promise to act in a certain way. The offence
B was complete with the acceptance of the money or on the agreement to accept
the money being concluded and was not dependent on the performance of the
illegal premises by the receiver. The receiver of the money would be treated
to have committed the offence even when he defaulted in the illegal bargain.
1982-FI
4. Clause (3) of Article 105 of the Constitution could not be invoked
C by the appellants to claim immunity from prosecution in respect of the
charge levelled against them. 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 the time would not necessarily mean
D 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.
[986-C-F]
5.1. A Member of Parliament is a public servant for the purpose of the
PCA. An MP beld an office and by virtue of such office, required or authorised
E to perform duties and such duties were in the nature of public duties.
[997-E]
5.2. The words used in sub-clause (viii) of s.2(c) were clear and could
not be cut down on the basis of the statement made by the Minister while
piloting the Bill in Parliament. 11003-BI

F R.S. Nayak v. A.R. Antulay, IJ 9841 2 SCR 495; Statement (Private) Ltd
v. H.R. Deb, (1968] 3 SCR 614; Mahadeo v. Shantibhai, (1969] 2 SCR 422;
Kanta Kathuria v. Manakchand Surana, 11970( 2 SCR 835; Habibullah
Khan v. State of Orissa, (1993] Cri. LJ 3604; K.P. Verghese v. Income Tax
Officer, (1982] I SCR 629; State o/Orissa v. Mahanadi Coal Fields, (19961
G Supp. 2 686; Narendra Kumar Maheshwari v. Union of India, (1989] 3 SCR
43; Aswini Kumar Ghose v. Arabinda Bose, (1953] SCR I and Sanjeev Coke
Munufacturing Co. v. Bharat Coking Coal Ltd, 1198311 SCR 1000, referred
to.

McMillan v. Guest, [1942] AC 561 Horne v. Barber, 11920] 27 CLR
H 494; Pepper v. Hart, (1993] 1 All ER 42 and Black-Clawson International

.
P.Y. NARASIMHA RAO v. STATE (CBl/SPE)[BHARUCHA. J.] 877
Ltd. v. Papierworke Waldhhof Oxford Shoter English Dictionary, 3rd Ed. p. A
~

' 1362, referred to.

6. Since there was no authority competent to remove an MP and to
grant sanction for his prosecution under S.19(1) of the PCA, the court could
take cognizance of the offences mentioned in s.19(1) in the absence of
sanction but till provision was made by Parliament in that regard by suitable B
amendment in the law, the prosecuting agency, before filing a charge-sheet
in respect of an offence punishable under Ss. 7,I0,11,13 and 15 of the PCA
against an MP in a criminal court, shall obtain the permission of the
Chairman of the Rajya Sabha or Speaker of the Lok Sabha, as the case may
be. (IO 15-B-C)
c
K. Veeraswamiv. Union of India, (1991) 3 SCR 189; SA. Venkataraman
v. The State, 11958) SCR 1037 and Kihoto Hollohan v. Zachillhu, (19921
Supp 2 SCC 651, referred to.

May's Parliamentary Practice, 21st ed., pp.179-180 and HOP Debate
D
Vol IX, (1954), CC 3447-48, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1207-1208of1997 Etc. Etc.

From the Judgment and Order dated 12.9.97 of the Delhi High Court in
E
Crl. R. No. 194-195 of 1997.

Ashok H. Desai, Attorney General, T.R. Andhyarujina, Solicitor General,
P.P. Rao, Kapil Sibal, Dr. D.D. Thakur, Ranjit Kumar, Anu Mohla, LC. Pandey,
C. Paramasivam, Ajay Telesara, Jamshed Bey, Rakhi Roy, Ms. Bina Gupta, Dr.
Surat Singh, Ashok Mahajan, P.P. Singh, Chandrasheker, Girish Ananthamurthy, F
..,
...,,.. B.Y. Kulkarni, Navin Prakash, Arnn Bhardwaj, K.C. Kaushik, Manish Sharma,
D.Prakash Reddy, L. Nageshwara Rao, Ms. lndu Malhotra, Rajiv Dutta Akhilesh
Kumar Pandey, Bharat Sangal, R.P. Wadhwani, P.K. Manohar, P.Parmeswaran
A. Mariarputham and Dr. S.C. Jain for the appearing parties.

. The Judgments of the Court were delivered by G
BHARUCHA, J. On 26th July, 1993, a motion of no-confidence was
moved in the Lok Sabha against the minority government of P.V. Narasimha
Rao. The support of 14 members was needed to have the no-confidence
motion defeated. On 28th July, 1993, the no-confidence motion was lost, 251
members having voted in support and 265 against. Suraj Manda!, Shibu H
878 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Soren, Simon Marandi and Shailender Mahto, members of the Lok Sabha •
owing allegiance to the Jharkhand Mukti Morcha (the JMM), and Ram Lakhan r -
Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap
Singh and Haji Gulam Mohammed, members of the Lok Sabha owing allegiance
to the Janata Dal, Ajit Singh group (the J.D., A.S.), voted against the no-
confidence motion. Ajit Singh, a member of the Lok Sabha owing allegiance
B to the J.D., A.S., abstained from voting thereon.

It is the respondents, case that the abovenamed members agreed to and
did receive bribes, to the giving of which P.V. Narasimha Rao, M.P. and Prime
Minister, Satish Sharma, M.P. and Minister, Buta Singh, M.P. V. Rajeswar Rao,
C M.P., N.M. Ravanna, Ram Linga Reddy, M.L.A., M.Veerappa Moily, M.L.A.
and ChiefMir.ister, State of Kamataka, D.K.Adikeshavulu, M. Thimmogowda
and Bhajan Lal, M.L.A. And Chief Minister, State of Haryana, were parties,
to vote against the no-confidence motion. A prosecution being launched
against the aforesaid alleged bribe givers and bribe takers subsequent to the
vote upon the no-confidence motion, cognizance was taken by the Special
D Judge, Delhi.
The Charge framed against P.V. Narasimha Rao reads thus:

"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. Sati sh
E Sharma, Buta Singh, V. Rajeshwara rao, HM Revanna, Ramlinga Reddy,
M.Veerappa Moiley, D.K. Audi Keshvalu, M. Thimmegowda, Bhajan
Lal, JMM (Jharkhand Mukti Morcha) MPs Suraj Manda!, Shibu Soren,
Simon Marandi, Shailendra Mahto (approver, since granted pardon
on 8.4.97), Janta Dal (Ajit Group) MPs Ajit Singh, Ram Lakhan Singh
F Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Chran Das, Abhay
Pratap Singh, Haji Ghulam Mohd. Khan and late G.C. Munda to defeat ,•
the no-confidence motion moved on 26.7.93 against the then Congress
(I) Govt. headed by you by illegal means viz. to offer or cause to offer
and pay gratification other than the legal remuneration to your co-
accused persons namely J.M.M. and Janta Dal (A) MPs named above
G 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 Jania Dal (A) MPs who obtained or
attempted to obtain the same in the manner stated above and thereby
H you have committed an offence punishable u/S 120 B IPC r/w Sections
P.V. NARASIMHA RAO v. STA TE (CBl/SPE) [BHARUCHA, J.) 879
7, 12 and 13(2) r/w 13(i)(d) of the PC Act 1988 and within my cognizance. A

Secondly you P.V. Narasimha Rao in pursuance of the aforesaid criminal
conspiracy during the aforesaid period and at the aforesaid places
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 B
committed an offence punishable u/S 12 of the P.C. Act and within my
cognizance.

"Similar charges were framed against the other alleged bribe givers.

The charge framed against Suraj Manda! of the J.M.M. reads thus: C
"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.Veerappa Moiley, D.K. Audi Keshvalu. M, Thimmegowda, D
Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Shibu Soren, Simon
Marandi, Shailendra Mehto (Approver, since granted pardon on 8.4.97),
Janta Dal (Ajit Group) MPs, Ajit Singh, Ram Lakhan Singh Yadav,
Roshan Lal, Anadi Chran Dass, Abhey Partap Singh, Haji Ghulam
Mohd. Khan and late G.C. Munda to defeat the no confidence motion E
moved against the then Congress (I) Government headed by accused
Shri P.V. Narasimha Rao on 26.7.93 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 Janta 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 F
and Janta Dal (A) passed on several lacs of rupees to you or your
other co-accused namely JMM and Janta 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 1208 r/w Sections
7,12,13(2) r/w section 13(i)(d) of the P.C. Act and within my cognizance. G

Secondly, that you being a public servant while functioning in
your capacity of Member of Parliament (I 0th 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 & JD(A) MPs mentioned above a sum of Rs. 280 lacs H
880 SUPREME COURT REPORTS (1998] 2 S.C.R.

A for yourself and other JMM MPs named above other than your legal
remuneration as a motive or reward for defeating above referred no
confidence motion moved against the then Govt. of Congress (!)
headed by your co-acc:used Shri P.V. Narasimha Rao and thereby yo4
have committed an offence punishable u/S 7 the P.C. Act and within
my cognizance.
B
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
c or your other co-accused i.e. JMM MPs named above the pecuniary
advantage to the extent of Rs.280 lacs and thereby committed an
offence punishable u/S 13(2) read with Section 13(i)(d) of P.C. Act and
within my cognizance.

Fourthly, that you during the pendency of investigation of present
D case while writ petition No.789/96 was pending disposal in Hon'ble
High Court between February to April, 1996 at Delhi, Ranchi and other
places intentionally caused to bring false evidence into existence by
fabricating or causing to fabricate the documents or records i.e. books
of accounts, proceeding books, etc. of JMM Central Office, Ranchi for
the purpose of being used in any stage of judicial proceedings and
E
thereby committed an offence u/S 193 !PC and within my cognizance.

Similar charges were framed against the other alleged bribe takers of the
J.M.M. Similar charges were also framed against the alleged bribe takers of
the J.D., A.S., except that there was no charge against them under Section 193
F of the Indian Penal Code. Shailender Mahto of the J.M.M., it may be mentioned,
later turned approver and was pardoned.

The persons sought to be charged as aforesaid filed petitions in the
High Court at Delhi seeking to quash the charges. By the judgment and order
G which is under challenge, the High Court dismissed the petitions. Hence,
these appeals. The appeals were heard by a bench of three learned judges·
and then referred to a Constitution Bench. The argument on behalf of the
appellants to be considered by the Constitution Bench, broadly put, is that,
by virtue of the provisions of Article 105, they are immune from the prosecution
and that, in any event, they cannot be prosecuted under the Prevention of
H Corruption Act, 1988.
P.V. NARAS!MHA RAO v. STATE (CB!/SPE) [BHARUCHA, J.) 881

Privilege. A
Article 105 of the Constitution reads thus:

"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 B
standing order regulating the procedure of Parliament, there shall. be
freedom of speech in Parliamen.t

(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 in respect C
of the publication by or under the authority of either House of
Parliament of any report, papers, 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 j)
by law, and until so defined shall be those of that House and of its
members and committees immediately before the coming into force of
section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

(4) The provisions of clauses (I), (2) and (3) shall apply in relation to E
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."

Mr. P.P. Rao addressed us on behalf of P.V. Narasimha Rao, Mr. D.D. F
Thakur on behalf of Satish Sharma, Mr. Kapil Sibal on behalf of
Bhajan Lal and Dr. Surat Singh on behalf of some of the J.D., A.S.
M.Ps. All of them relied upon sub article (2) of Article 105. Only Mr.
P.P. Rao, learned counsel for P.V. Narasimha Rao, relied, in addition,
upon sub article(3) thereof.
G
Article 105(2).

By reason of sub-article (I) of Article 105, members of Parliament enjoy
freedom of speech subject only to the provisions of the Constitution and the
rules and standing orders regulating the procedure of Parliament. That express
provision is made for freedom of speech in Parliament in sub-article (I) of H
882 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Article 105 suggests that th is freedom is independent of the freedom of
speech conferred by Article 19 and unrestricted by the exceptions contained
therein. This is recognition of the fact that members need to be free of all
constraints in the matter of what they say in Parliament if they are effectively
to represent their constituencies in its deliberations. Sub-article (2) of Article
105 puts negatively what sub-article (I) states affirmatively. Both sub-articles
B must be read together to determine their content. By reason of the first part
of sub-article (2) no member is answerable in a com1 of law or any similar
tribunal for what he has said in Parliament. This again is recognition of the
fact that a member needs the freedom to say what he thinks is right in
Parliament undeterred by the fear of being proceeded against. A vote, whether
C cast by voice or gesture or the aid of a machine, is treated as an extension
of speech or a substitute for speech and is given the protection that the
spoken word has. Two comments need to be made in regard to the plain
language of the first part of sub-article (2). First, what has protection is what
has been said and a vote that has been cast, not something that might have
been said but was not, or a vote that might have been cast but was not.
D Secondly, the protection is broad, being "in respect of'. It is so given to
secure the freedom of speech in Parliament that sub-article (I) provides for.
It is necessary, given the role members of Parliament must perform. The
protection is absolute against court proceedings that have a nexus with what
has been said, or a vote that has been cast in Parliament. The second part
E of sub-article (2) provides that no person shall be liable to any proceedings
in any court in respect of the publication of any report, papers, votes or
proceedings if the publication is by or under the authority of either House
of Parliament. A person who publishes a report or papers or votes or
proceedings by or under the authority of Parliament is thereby given protection
in the same broad terms against liability to proceedings in any court connected
F with such publication. The constitution having dealt with the all - important
privilege of members of Parliament to speak and vote therein as they deem
fit, freed of the fear of attracting legal proceedings concerning what they say
or how they vote, provides for other powers, privileges and immunities is sub-
article (3). Till defined by Parliament by enactment, they are such as were
G enjoyed before the Constitution came into force; that is to say, they are such
as were enjoyed by the House of Commons just before 26th January, 1950.
For it to be established that any power, privilege or immunity exists under
sub-article (3), it must be shown that that power, privilege or immunity had
been recognised as inhering in the House of Commons at the commencement
of the Constitution. So important was the freedom to speak and vote in
H Parliament thought to be that it was expressly provided for, not left to be
P.V. NARASIMHA RAO v. STATE (CEJI/SPE) [BHARUCHA, J.] 883
\

gathered, as other powers, privileges and immunities were, from the House of A
Commons. In so far as the immunity that attaches to what is spoken in
- ' Parliament and to a vote given therein is concerned, provision is made in sub-
article (2); it is only in other respects that sub-article (3) applies. For the sake
of completeness, though we are not here concerned with it, we must add that
sub-ahicle (4) gives the protection of the Sub-articles that preceded it to all B
who have the right to address the House, for example, the Attorney General.

The provisions of Article l 05 and of Article I94, which is in the same
terms but deals with the privileges of Legislative Assemblies, have been
examined by this Court in the past. In the case of Pandit M.S.M. Sharma v.
Shri Sri Krishna Sinha and Others, [ 1959) Supp. I S.C.R. 806, a portion of the C
speech made by a member of a Legislative Assembly had been expunged by
the orders of the Speaker. Nonetheless, the speech was published in its
entirety in a newspaper of which the petitioner was the editor. He was called
upon to show cause why action should not be taken against him for breach
of privilege of the Legislative Assembly and he challenged the notice by a
petition under Article 32. S.R. Das, C.J., speaking for the majority on the D
Constitution Bench which heard the writ petition, observed that Parliamentary
privilege in England was defined in May's Parliamentary Practice as "the sum
of the peculiar rights enjoyed by each House collectively as a constituent part
of the High Court of Parliament, and by members of each House individually,
without which they could not discharge their functions, and which exceed E
those possessed by other bodies or individuals". The privileges of the House
of Commons, as distinct from those of the House of Lords, were dtfined as
"the sum of the fundamental rights of the House and of its individual members
as against the prerogatives of the CFown, the authority of the ordinary courts
of law and the special rights of the House of Lords". The privileges of the
House of Commons included the freedom of speech, which had been claimed F
in 1554. This comprised the right of the House to provide for the due
composition of its own body, the right to regulate its own proceedings, the
right to exclude stranger, the right to prohibit publication of its debates and
the right to enforce observation of its privileges by fine, imprisonment and
expulsion. For delib~rative bodies like the House of Lords and Commons, this G
Court said, "freedom of speech is of the utmost importance. A full and free
debate is of the essence of Parliamentary democracy." The argument that the
whole of article 194 was subject to Article 19(1)(a) overlooked the provisions
of article 194(2). The right conferred on a citizen under Article 19(1 )(a) could
be restricted by a law which fell within sub-article 2 of that Article and he
could be made liable in a court of law for breach of such law, but Article 194(2) H
884 SUPREME COURT REPORTS [1998] 2 S.C.R.

A categorically laid down that no member of the legislature was to be made
liable to any proceedings in any court in respect of anything said or any vote
given by him in the Legislature or in committees thereof and that no person
would be liable in respect of the publication by or under the authority of the
House of such a Legislature of any report, paper or proceedings. The provisions
B of Article 194(2), therefore, indicated that the freedom of speech referred to
in sub-article (I) thereof was different from the freedom of speech and
expression guaranteed under Article 19(1 )(a) and could not be cut down in
any way by any law contemplated by Article 19(2). A law made by Parliament
in pursuance of the earlier part of Article I05(3) or by a State Legislature in
pursuance of the earlier part of Article 194(3) was not law made in exercise
C of constituent power but law made in exercise of ordinary legislative power
under Article 246 read with the relevant entries. Consequently, if such a law
took away or abridged any of the fundamental rights, it would contravene the
peremptory provisions of Article 13(2) and would be void to the extent of
such contravention. It might well be that that was the reason why Parliament
D and the State Legislatures had not made laws defining their powers, privileges
and immunities. It did not, however, follow that if the powrs, privileges or
immunities conferred by the latter part of Articles I 05 and 194 were repugnant
to the fundamental rights, they would be void to the extent of such repugnancy.
It could not be overlooked that the provisions of Articles 105(3) and 194(3)
were constitutional law and not ordinary law made by Parliament or the State
E Legislatures and that, therefore, they were as supreme as the provisions of
part III of the Constitution. Further, quite conceivably, the Constitution makers,
not knowing what powers, privileges and immunities Parliament or the State
Legislatures might claim, thought fit not to take any risk and made such laws
subject to the provisions of Article 13; but that, knowing and being satisfied
F with the reasonableness of the powers, privileges and immunities of the
House of Commons at the commencement of the Constitution, they did not,
in their wisdom, think fit to make such powers, privileges and immunities
subject to the fundamental right conferred by Article 19(l)(a).

The case of Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee,
G [1961] 3 S.C.R. 486, dealt with an appellant who was a member ofa Legislative
Assembly. He had given notice of his intention to put certain questions in
the Assembly. The questions being disallowed by the Speaker, he had
published them in a journal in his constituency. The first respondent, whose
conduct was the subject-matter of the questions, filed a complaint under the
Indian Penal Code against the appellant and the printer and publisher of the
H journal. The appellant pleaded privilege and immunity under Article 194 of the
I
...
P. V. NARASIMHA RAO v. STA TE (CBl/SPE) [BHARUCHA, J.] 885
Constitution as a bar to criminal prosecution. The claim of absolute privilege A
was disallowed by this Court. It was said, with reference to the law in England
- ... in respect of the privileges and immunities of the House of Commons, that
there was no absolute privilege attaching to the publication of extracts from
proceedings in the House. So far as a member of the House of Commons was
concerned, he had an absolute privilege in respect of what he had spoken
within the four walls of the House, but there was only a qualified privilege B
in his favour even in respect of what he had himself said in the House if he
caused the same to be published in the public press. The legal position, which
was undisputed, was that unless the appellant could make out an absolute
privilege in his favour in respect of the publication which was the subject-
matter of the charge, the prosecution against him could not be quashed. He C
having no such absolute privilege, it was held that "he must take his trial and
enter upon his defence, such as he may have."

Special Reference No. I of 1964, [1965] I S.C.R. 412 known more
commonly as Keshav Singh 's case or the Privileges case, deals extensively
with the scope of the privileges of legislative bodies. The Presidential Reference D
was made in the following circumstances: The Legislative Assembly of the
State of Uttar Pradesh committed one Keshav Singh, not one of its members,
to prison for contempt. The warrant it issued was a general warrant, in that
it did not set out the facts which had been found to be contumacious. Keshav
Singh moved a petition under Article 226 challenging his committal and he E
prayed for bail. Two learned judges of the Lucknow Bench of the High Court
ordered that Keshav Singh be released on bail pending the decision on the
writ petition. The Legislative Assembly passed a resolution requiring the
production in custody before it of Keshav Singh, the advocate who had
appeared for him and the two judges who had granted him bail. The judges
and the advocate filed writ petitions before the High Court at Allahabad. A F
Full Bench of the High Court admitted their petitions and ordered the stay
of the execution of the Assembly's resolution. The Legislative Assembly
modified its earlier resolution so that the two judges were now asked to
appear before the House and offer an explanation. The President thereupon
made the Special Reference. Briefly put, the questions he asked were : whether G
the Lucknow Bench could have entertained Keshav Singh's writ petition and
released him on bail; whether the judges who entertained the petition and
granted bail and Keshav Singh and his advocate had committed contempt of
the Assembly; whether the Assembly was competent to require the production
of the judges and the advocate before it in custody or to call for their
explanation; whether the Full Bench of the High Court could have entertained H
4'

886 SUPREME COURT REPORTS [1998) 2 S.C.R.

A the writ petitions of the two judges and the advocate and could have stayed
the implementation of the resolution of the Assembly; and whether a judge
who entertained or dealt with a petition challenging any order of a Legislature
imposing penalty or issuing process against the petitioner for its contempt
or for infringement of its privileges and immunities committed contempt of the
Legislature and whether the Legislature was competent to take proceedings
B against the judge in the exercise of its powers, privileges and immunities. The
adjectival clause "regulating the procedure of the Legislature" in Article
194( I) governed, it was held, both the preceding clauses relating to "the
provisions of the Constitution" and "the rules and standing orders." Therefore,
Article 194( I) conferred on legislators specifically the right of freedom of
C speech subject to the limitation prescribed by its first part. By making this
sub-article subject only to the specified provisions of the Constitution, the
Constitution-makers wanted to make it clear that they thought it necessary
to confer on the legislators freedom of speech separately and, in a sense,
independently of Article 19(1 )(a). It was legitimate to conclude that Article
19(1 )(a) was not one of the provisions of the Constitution which controlled
D the first part of Article 194( I). Having conferred freedom of speech on the
legislators, Article 194(2) emphasized the fact that the freedom was intended
to be absolute and unfettered. Similar freedom was guaranteed to the legislators
in respect of the votes they might give in the legislature or any committee
thereof. "In other words". this Court said, "even if a legislator exercises his
E right of freedom of speech in violation, say, of Article 211, he would not be
liable for any action in any court. Similarly, ifthe legislator by his speech or
vote is alleged to have violated any of the fundamental rights guaranteed by
Part lII of the Constitution in the Legislative Assembly, he would not be
answerable for the said contravention in any court. If the impugned speech
amounts of libel or becomes actionable or indiccable under any other provision
F oft!1e law, immunity has been conferred on him from any action in any court
by this clause ............ It is plain that the Constitution-makers attached so
much importance to the necessity of absolute freedom in debates within the
legislative chambers that they thought it necessary to confer complete immunity
on the legislators from any action in any court in respect of their speeches
G in the legislative chambers in the wide terms prescribed by clause (2). Thus,
clause (1) confers freedom of speech on the legislators within the legislative
chambers and clause (2) makes it plain that the freedom is literally absolute
and unfettered." Referring to Article 194(3), this Court said that it was 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,
H some were given up in course of time and some faded out by desuetude.
P. V. NARASIMHA RAO v. STA TE (CBl/SPE) [BHARUCHA, J.] 887

Accordingly, in every case where a power was claimed, it was necessary to A
enquire whether it was an existing power at the relevant time. It had also to
-' appear that the 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 under the latter part of clause (3) only on the ground that it B
was in fact claimed by the House of Commons." In India, this Court said, the
dominant characteristic of the British Constitution could not be claimed. The
supremacy of the Constitution was protected by an independent judicial body
which was the interpreter of the scheme of distribution of powers. It was
c
difficult for this Court to accept the argument that the result of the provisions
contained in the latter part of Article I 94(3) was intended to be to confer on
the State Legislatures in India the status of a superior Court of Record. It was
essential to bear in mind the fact that the status of a superior Court of Record
which was accorded to the House of Commons was based on historical facts.
It was a fact of English history that Parliament had been discharging judicial
functions and the House of Lords still continued to be the highest court of D
law in the country. The Legislative Assemblies in India never discharged any
judicial functions and their historical and constitutional background did not
support the claim that they could be regarded as Courts of Record in any
sense. The very basis on which English courts agreed to treat a general
warrant issued by the House of Commons on the footing that it was a warrant E
issued by a superior Court of Record was absent in the case of a general
warrant issued by a State Legislature in India.

In the case of T.K. Jain v. NS. Reddy, [1971] I S.C.R. 612, it was
contended that the immunity granted by Article I05(2) was with reference to
the business of Parliament and not in regard to something which was something F
"- utterly irrelevant. This Court said:

"The article means what it says in language which could not be plainer.
The article confers immunity inter a/ia in respect of anything said ....... in
Parliament. The word "anything is of the widest import and is equivalent to G
'everything'. The only limitation arises from the words 'in Parliament' which
means during the sitting of Parliament and in the course of the business of
Parliament. We are concerned only with speeches in Lok Sabha. Once it was
proved that Parliament was sitting and its business was being transacted,
anything said during the course of that business was immune from proceedings
in any court. This immunity is not only complete but is as it should be. It is H
888 SUPREME COURT REPORTS [1998] 2 S.C.R.

A of the essence of parliamentary system of Government that people's
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 t -
by the Speaker. The courts have no say in the matter and should really have
none."
B
The last of the cases to which reference need be made is State of
Karnataka v. Union of India & Another, [1978] 2 S.'C.R. I. It was there held
that the Constitution vested only legislative power in Parliament and in the
State Legislatures. A House of Parliament or State Legislature could not try
C anyone or any case directly, as a Court of Justice could. It could proceed
quasi-judicially in cases of contempts of its authority and take up motions
concerning its privileges and immunities because, in doing so, it sought
removal of obstructions to the due performance of its legislative functions.
If any question of jurisdiction arose, it had to be decided by the courts in
appropriate proceedings. Beg, J. added, "For example, the jurisdiction to try
D a criminal offence, such as murder, committed even within a house vests in
ordinary criminal courts and not in a House of Parliament or in a State
Legislature".

In Tolaran1 Relumal and anr. v. The State of Bombay, [1995] I S.C.R.
158, this Court construed the words "in respect of" occurring in Section 18(1)
E of the Bombay Rent Restriction Act, 1947, the relevant portion of which read
thus:

"If any landlord either himself or through any person acting or
purporting to act on his behalf... ..... receives any fine, premium or other
like sum or deposit or any con~ideration, other than the standard
F rent.. ........ in respect of the grant, renewal or continuance of a lease
of any premises ........ such landlord or person shall be punished ....... ".

The High Court had observed that the expression "in respect of' was very
comprehensive but this Court took the view that it had laid undue emphasi~
G thereon. This Court said, "Giving the words "in respect of' their widest
meaning, viz, "relating to" or "with reference to", it is plain that this relationship
must be predicated of the grant, renewal or continuance of a lease, and unless
a lease comes into existence simultaneously or near about the time that the
money is received, it cannot be said that the receipt was "in respect of' the
grant of a lease ............. lt is difficult to hold that any relationship of landlord
H and tenant comes into existence on the execution of an agreement executory
.
I

P.V. NARASIMHA RAO v. STA TE (CBI/SPE) [BHARUCHA. l] 889
in nature or that the expression "premium" can be appositely used in connection A
with the receipt of money on the occasion of the execution of such an
agreement. It may well be that if a lease actually comes into existence then
any receipt of money which has a nexus with that lease may fall within the
mischief of section 18( I), but it is unnecessary to express any final opinion
on the question as in the present case admittedly no lease ever came into
existence and the relationship of landlord and tenant was never created B
between the parties.:"

The learned Attorney General submitted that the words "in respect of'
had not always received a board meaning, and he cited the judgment of this
Court in State of Madras v. Mis. Swastik Tobacco Factory, Vedaranyam, C
[1966] 3 S.C.R. 79. A provision of the Madras General Sales Tax (Turnover
and Assessment) Rules, 1939, which stated that, "the excise duty, if any, paid
by the dealer to the Central Government in respect of the goods sold by
him, .... " would be deducted from the gross turnover of a dealer for the
purposes of determining the net turnover, was under consideration. The Court
noted that the words "in respect of' had been considered by the House of D
Lords in Inland Revenue Commissioners v. Courts & Co., (1963) 2 All.
E.R.722, and it had observed that "the phrase denoted some imprecise kind
of nexus between the property and the estate duty". In Asher v. Seaford
Court Estates Ltd., L.R. (1950) A.C. 508, the House of Lords had held that
the expression "in respect of' in the Increase of Rent and Mortgage Interest
(Restrictions) Act, 1920, must be read as equivalent to "attribute". The Privy E
Council in Bieber, Ltd. v. Commissioners ofIncome-tax, (1962) 3 All. E.R .. 294,
had observed that these words could mean more than "consisting of' or
"namely''. This Court said, "It may be accepted that the said expression
received a wide interpretation, having regard to the object of the provisions
and the setting in which the said words appeared. On the other hand, Indian F
tax laws use the expression 'in respect of as synonymous with the expression
.(
'on'." In the provision under consideration the expression "in respect of the
goods" was held to mean "on the goods''.

This Court drew a distinction in the above case between the use of the
expression "in respect of' in taxing statutes in India and its use elsewhere. G
In the context of its use in the Constitution and having regard to the object
which is intended to be secured by Article I 05(2), we think that the broad
interpretation thereof is the most appropriate. It is thus that this Court has
already interpreted the provision.

The Attorney General submitted that a proceeding in court founded on H
\
...
890 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A the allegation that a member of Parliament had received a bribe to vote in a
particular way was not a proceeding in respect of a vote that he had given
and that, therefore, the member did not enjoy immunity from the proceeding
by reason of Article I05(2). He submitted that the immunity given by Article
I05(2) did not cover criminal proceedings. It had been held by the comts of
the United States of America, Canada, Australia and, recently, England, he
B said, that a legislator could be proceeded against for corruption.

The Attorney General relied upon the decisions and reports in this
behalf to which we shall refer.The Attorney General submitted that the immunity
given by Article 105(2) should be interpreted in the light of the times in which
C we live and, so interpreting it, should exclude from its coverage corrupt
legislators.

In Bradlaugh v. Gossett, 12 Q.B.D.271, the plaintiff Bradlaugh had been
elected to the House of Commons. He required the Speaker to call him to the
table to take the oath. By reason of what had transpired on a earlier occasion,
D the Speaker declined to do so and the House resolved that the Serjeant-at-
Arms should exclude Bradlaugh until "he shall engage not further to disturb
the proceedings of the House". Bradlaugh prayed for an injunction against
the Serjeant-at-Anns restraining him from carrying out the resolution. The suit
was dismissed. Lord Coleridge, C.J. said, "What is said or done within the
E walls of Parliament cannot be inquired into in a court of law ........... The jurisdiction
of the Houses over their own members, their right to impose discipline within
their walls, is absolute and exclusive. To use the words of Lord Ellen borough,
"They would sink into utter contempt and inefficiency without it."' He added,
"The Houses of Parliament cannot act by themselves in a body : they must
act by officers; and the Serjeant··at-arms is the legal and recognised officer
F of the House of Commons to execute its orders. I entertain no doubt that the
House had a right to decide on the subject-matter, have decided it, and have
ordered their officer to give effect to their decision. He is protected by their
decision. They have ordered him to do what they have a right to order, and
he has obeyed them ......... lf injustice has been done, it is injustice for which
G the Courts of law afford no remedy." Stephen, J., concurring, said that the
House of Commons was not subject to the control of Her Majesty's Courts
in its administration of that part of the statute law which had relation to its
own internal proceedings, and that the use of such actual force as was
necessary to carry into effect such a resolution as the one before the court
was justifiable. Jn support, the learned Judge quoted Blackstone, who had
H said, "The whole of the law and custom of Parliament has its original from
'
t
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, J.] 891
this one maxim, 'that whatever matter arises concerning either House of A
Parliament ought to be examined, discussed, and adjudged in that House to
which it relates, and not elsewhere." This principle had been restated by the
judges who decided Stockdale v. Hansard, 9 Ad. & E.l. Lord Denman had
said, "Whatever is done within the walls of either assembly must pass without
question in any other place." Littledale, J., had said, "It is said the House of
Commons is the sole judge of its own privileges; and so I admit as far as the B
proceedings in the House and some other things are concerned." Patteson,
J., had said, "Beyond all dispute, it is necessary that the proceedings of each
House of Parliament should be entirely free and unshackled, that whatever is
said or done in either House should not be liable to examination elsewhere."
And Coleridge, J ., had said, "That the House should have exclusive jurisdiction C
to regulate the course of its own proceedings, and animadvert upon any
conduct there in violation of its rules or derogation from its dignity, stands
upon the clearest grounds of necessity." It seemed to follow that the House
of Commons had the exclusive power of interpreting the Parliamentary Oaths
Act, so far as the regulation of its own proceedings within its own walls was
concerned: and that, even if that interpretation was erroneous, the court had D
no power to interfere with it "directly or indirectly". It was in regard to a
possible case as to the effect of an order by the House of Commons to put
a member to death or to inflict upon him bodily harm that the learned Judge
said, "I know of no authority for the proposition that an ordinary crime
committed in the House of Commons would be withdrawn from the ordinary E
course of criminal justice". Referring to the old case of Sir John Eliot, Denzil
Hollis, and Others, the learned Judge said, "This case is the great leading
authority, memorable on many grounds, for the proposition that nothing said
in parliament by a member as such, can be treated as an offence by the
ordinary Courts".
F
In the case of Church of Scientology of California v. Johnson Smith,
(1972) ALL E.R. 378, the defendant, a member of Parliament, was sued for libel
allegedly published in a televi5ion programme. He pleaded fair comment and
privilege. The plaintiffs countered by alleging malice, to prove which they
sought to bring on record as evidence extracts from Hansard. The trial judge G
declined to permit them to do so. In his ruling he said,

"I am quite satisfied that in these proceedings it is not open to
either party to go directly, or indirectly, into any question of the
motives or intentions, of the defendant or Mr. Hordern or the then
Minister of Health or any other member of Parliament in anything they H
892 SUPREME COURT REPORTS [1998] 2 S.C.R.

A said or did in the House."

The report of the Royal Commission on Standards of Conduct in Public
Life, chaired by Lord Salmon, was presented in July 1976. It says,

"307. Only Parliament can decide what conduct constitutes a breach
B of privilege or a contempt of Parliament. Jn cases that are adjudged
to be 'contempts', the House may exercise its penal jurisdiction to
punish the offenders. The main penal sanctions available to the House
are reprimand and committal to the custody of the Serjeant at Arms
or to prisons. These sanctions apply both to Members and strangers.
In addition, a Member may be suspended from the House or expelled.
c The House of Commons possesses no power to impose a fine.

"308. 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
D
conditions."

The Report states (in para 307), "it is in the light of the foregoing paragraphs '
that we note the fact that neither the statutory nor the common law applies
to the bribery or attempted bribery of a Member of Parliament in respect of
E his Parliamentary activities". The Report speaks (in para 309) of"the historical
circumstances in which the ordinary criminal law has not applied to bribery
in respect of proceedings in Parliament". It finds (in para 310) that "the briber
of a Member of Parliament would be immune from effective punitive sanctions
of the kind that can be inflicted under the criminal law. Public obloquy is
unlikely to be an effective sanction against such a person and accordingly
F we consider that there is a strong case for bringing such malpractices within
the criminal law''. It reiterates that ''the bribery of a Member of Parliament
acting in his Parliamentary capacity does not constitute an offence known to
the criminal law ........ ". The conclusion of the Report on the point is contained
in para 311:
G "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 recommend that Parliament
H should consider bringing corruption, bribery and attempted bribery of
P. V. NARASIMHA RAO v. STA TE (CBl/SPE) [BHARUCHA. J.] 893
a Member of Parliament acting in his Parliamentary capacity within the A
ambit of the criminal law".

In Prebb/e v. Television New Zealand Ltd, (l 994) 3 All E.R. 407, the
Privy Council considered Article 9 of the Bill of Rights ( l 688), which applies
by reason of incorporation in New Zealand. It reads thus:
B
"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.

"The defendant, a New Zealand television company, aired a programme in C
which it was alleged that the plaintiff, Prebble, then a Minister in the New
Zealand Government, had conspired with certain businessman and public
officials to give the businessmen an unfair opportunity to obtain certain state-
owned assets which were being privatised on unduly favourable terms in
return for donations to his political party, and he had thereafter arranged for
incriminating documents and computer files to be destroyed. The plaintiff D
having brought an action for libel, the defendant company pleaded justification,
alleging that the plaintiff and other ministers had made statements in the
House of Representatives which had been misleading and that the conspiracy
had been implemented by introducing and passing legislation in the House.
The plaintiff applied to strike out these particulars on the ground that E
parliamentary privilege was infringed. The trial judge upheld the claim to
immunity, as did the Court of Appeal. The Privileges Committee of the House
of Representatives having held that the House had no power to waive the
privileges protected by Article 9, the plaintiff appealed to the Privy Council.
The Privy Council also upheld the claim to immunity. Lord Browne-Wilkinson,
speaking for the Board, said that if Article 9 was looked at alone, the question F
was whether it would infringe that Article to suggest that the statements that
were made in the House were improper or that the legislation was procured
in pursuance of the alleged conspiracy, as constituting impeachment or
questioning of the freedom of speech of Parliament. In addition to Article 9
itself, there was a long line of authority which supported a wider principle, G
of which Article 9 was merely one manifestation, namely, that the courts and
Parliament were both astute to recognise their respective constitutional roles.
So far as the courts were concerned, they would not allow any challenge to
be made to what was said or done within the walls of Parliament in performance
of its legislative functions and protection of its established privileges. The
basic concept that underlay Article 9, namely, the need to ensure so far as H

,..
894 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A possible that a member of the legislature and witnesses before a committee
of the House spoke 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
B 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." The
privilege protected by Article 9 was the privilege of Parliament itself. The
actions of an individual member of Parliament, even if he had an individual
C privilege of his own, could not determine whether or not the privilege of
-
Parliament was to apply. The wider principle that had been encapsulated by
Blackstone prevented the courts from adjudicating on "issues arising in or
concerning the House, viz whether or not a member has misled the House or
acted from improper motives. The decision of an individual member cannot
override that collective privilege of the House to be the sole judge of such
D matters". Cases such as the one before the Privy Council illustrated how
public policy, or human rights, issues could conflict. There were "three such
issues in play in these cases: first, the need to ensure that the legislature can
exercise its powers freely on behalf of its electors, with access to all relevant
information; second, the need to protect freedom of speech generally; third,
E the interests of justice in ensuring that all relevant evidence is available to
the courts. Their Lordships are of the view that the law has been long settled
that, of these three public interests, the first must prevail."

Very recently, in the case of R. v. Currie, it was alleged against Harry
Greenway, a Member of Parliament, that he had accepted a bribe from Plasser,
F Jurasek and Brooks as a reward for using his influence as a Member of
Parliament in respect of Jurasek's application for British nationality.The
indictment of the four was sought to be quashed on the basis that the bribery
of a Member of Parliament was not a crime and that, in any event, the court
had no jurisdiction for only Parliament could try a member for bribery, the
G matter being covered by Parliamentary privilege. The trial judge, Buckley, J.
did not agree. He quoted the Salmon Commission Report. He also noted that
Lord Salmon, speaking in the debates of the House of Lords, had said, after
referring to the immunity enjoyed by Members of Parliament from being
prosecuted under the criminal law if they took bribes, that, "at Common Law
you cannot be convicted of bribery and corruption unless you are a holder
H of an office, and most of us are not the holders of an office". Viscount

•
P.V. NARASIMHA RAO v. STATE (CBl/SPEl [BHARUCHA, J.] 895

Dilhorne had agreed. Buckley, 1. could not accept that a question of such A
great importance could turn on semantics. In his view, "To hold that the
... existence of a Common Law crime of bribing a Member of Parliament depends
upon the meaning to be given to the word "office'' in this context, as opposed
to looking at the principle involved, would not be calculated to commend the
Criminal Law to the public it should serve." Buckley, J. noted what had been B
said by James Martin, C.J. in R. v. White, 13 SCR (NSW), 332, which case
concerned the attempted bribery of a Member of Parliament in New South
Wales, " ........ a legislator who suffers his votes to be influenced by a bribe
does that which is calculated to sap the utility of representative institutions
at their foundations. It would be a reproach to the Commcn Law if the offer C
to, or the acceptance of, a bribe by such a person were not an offence".
Faucett, J., agreeing with the Chief Justice, had said, "The principle is, that
any person who holds a public office or public employment of trust, if he
accepts a bribe to abuse his trust - in other words, if he corruptly abuses his
trust - is guilty of ~n offence at Common Law; and the person who gives the
bribe is guilty of an offence at Common Law" ..The same view had been taken D
in Canada in R v. Bunting, 1885 Ontario Reports 524; that was a case of a
conspiracy to bring about a change in the Government of the Province of
Ontario by bribing members of the Legislature to vote against the Government.
R. v. Boston, (1923) 33 Commonwealth Law Reports 386, was also a case where
similar arguments had been advanced and turned down, and Buckley, J.quoted E
this "memorable sentence" from the judgment of Higgins, J. "A member is
the watch-dog of the public; and Cerberus must not be seduced from vigilance
by a sop." Based upon these judgments, Buckley, J., was satisfied that "the
undoubted common law offence of bribery is not artificially limited by reference
to any particular shade of meaning of the word 'office'. The underlying
reason or principle is concerned with the corruption of those who undertake F
a duty, in the proper discharge of which the public is interested." The learned
Judge then considered the question of parliamentary privilege and noted
Article 9 of the Bill of Rights, 1688, which has already been quoted. The
learned judge quoted Lord Salmon, speaking in the House of Lords, thus: "To
my mind equality before the law is one of the pillars of freedom. To say that G
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 Bill of Rights is possibly a serious mistake". After quoting
the Bill of Rights, Lord Salmon had 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 H
896 SUPREME COURT REPORTS (1998) 2 S.C.R.

A 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." Buckley, J., commented, "It is important to note that
which Lord Salmon pointed out, namely, that corruption is complete when the
bribe is offered or given, solicited or taken. If, as is alleged here, a bribe is
given and taken by a Member of Parliament, to use his position dishonestly,
B that is to favour the briber as opposed to acting independently and on the
merits, the crime is complete. It owes nothing to any speech, debate or
proceedings in Parliament. Proof of the element of corruption in the transaction
is another and quite separate consideration. Privilege might well prevent any
inquiry by a court into Parliamentary debates or proceedings. See : The
C Church Of Scientology v. Johnson-Smith, 1972, I KB 522. However, it is not
a necessary ingredient of the crime that the bribe worked." Referring to the
case of Ex parte Wason, to which we shall make more detailed reference later,
Buckley, J., observed that the substance of the proposed indictment there was
that certain parties had conspired to make false statements in the House of
D Lords and Cockburn, C.J.'. had held "that the making of false statements in
either House of Parliament could not be the subject of criminal or civil
proceedings and nor could a conspiracy to do so". It seemed clear to the
learned judge that the court had Article 9 gf the Bill of Rights well in mind.
"The only candidate", he said, "for the unlawful act or means was the very
act which was not subject to the criminal law". He added that he could not
E see that the reasoning of Ex parte Wason, assuming the decision to be
correct, would apply to alleged bribery for the proof of which no reference
to goings on in Parliament would be necessary. This approach, he found,
happened to be in line with several United States authorities on their "Speech
or Debate Clause" which, for all practical purposes, was the same as Article
F 9. That a Member of Parliament against whom there was a prima facie case
of corruption should be immune from prosecution in the courts of law was
to Buckley, J. 's mind an unacceptable proposition "at the present time". He
did not believe it to be the law. The Committee of Privileges of the House was
"not well equipped to conduct an enquiry into such a case .................. nor is
it an appropriate or experienced body to pass sentence .................. The courts
G and legislatures have over the years built up a formidable body of law and
codes of practice to achieve fair treatment of suspects and persons ultimately
charged and brought to trial ................. Again, unless it is to be assumed that
his peers would lean in his favour why should a Member be deprived of a
jury and an experienced judge to consider his guilt or innocence and, if
H appropriate, sentence ? Why should the public be similarly deprived." The
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, J.) 897

prosecution went ahead against the other accused but the charge was not A
established. The member of Parliament was., therefore, also acquitted.

The Law Commission in England very recently published a Consultation
Paper (No.145) entitled "Legislating the Criminal Code - Corruption". It refers
to the Salmon Commission Report, the report of the Nolan Committee on the
Standards of Conduct in Public Life and recent judgments (to one of which B
, we shall advert). It states, "Whether Members of Parliament are subject to the

- criminal law of corruption, and more particularly whether they should be, are
both contentious issues currently to the fore in public debate. As to the latter,
on the one hand it has been said of Members of Parliament that 'Few are in
a higher position of trust or have a duty to discharge in whi9h the public have C
a greater interest', and they should arguably therefore be subject to the
criminal law. On the other hand, they are sui generis, in that, although they
have the benefit of Parliamentary privilege, which protects them against
criminal liability for things said in Parliamentary proceedings, they are. in
consequence, subject to· the jurisdiction in Parliament''.
D
Halsbury's Laws of England, Fourth Edition, in dealing with Members
of Parliament under the subject of "Criminal Law, Evidence and Procedure"
(in Volume 11, para 37), set$ out the law succintly:

"37. Members of Parliament. Except in relatioq to anything said in
debate, a member of the House of Lords or of the House ofCommoris E
is subject to the ordinary course of criminal justice; the privileges of
Parliament do not apply to criminal matters."

Before we deal with the judgment of the United States Supreme Court
in United States v. Daniel B. Brewster, 33 L. Ed. 2d 507, which lends support F
to the learned Attorney General's submissions, we should set out the speech
,,_ or debate clause in the Constitution of the United States and refer to the
United States Supreme Court judgment in United States v. Thomas F. Johnson,
15 L.Ed. 2d 681, to which the latter judgment makes copious reference.

Article 1, Section 6 of the United States Constitution contains the G
speech or debate clause. Referring to United States Senators and
e
Representatives, it says : (F) or any Speech or Debate in either House, they
shall not be questioned in any other Place".

Thomas F. Johnson was convicted by a United States District Court for
violating a federal conflict of interest statute and for conspiring to defraud H
898 SUPREME COURT REPORTS [1998] 2 S.C.R.

A the United States. Evidence was admitted and argument was pennitted 11t the
trial that related to the authorship, content and motivation of a speech which
.r
the Congressman had allegedly made on the floor of the House of
Representatives in pursuance of a conspiracy designed to give assistance, in
return for compensation, to certain savings and loan associations which had
been indicted on mail fraud charges. The conviction had been set aside by
B the Court of Appeals on the ground that the allegations in regard to the
conspiracy to make the speech were barred by the speech or debate Clause. T
Finding that the evidence that had been adduced upon the unconstitutional
aspects of the conspiracy count had infected the entire prosecution, the
Court of Appeals had ordered a new trial on the other counts. The Supreme
C Court , in further appeal, held that the prosecution on the conspiracy charge,
being dependent upon an intensive inquiry with respect to the speech on the
floor of the House, violated the speech or debate clause warranting the grant
of a new trial on the conspiracy count, with all elements offensive to the
speech or debate clause eliminated. The earlier cases, it said, indicated that
the legislative privilege had to be read broadly to effectuate its purpose.
D Neither of those cases, however, had dealt with criminal prosecution based
upon the allegation that a member of Congress had abused his position by
conspiring to give a particular speech in return for remuneration from private
interests. However reprehensible such conduct might be, the speech or debate
clause extended at least so far as to prevent it from being made the basis of
E a criminal charge against a member of Congress of conspiracy to defraud the
United States by impeding the due discharge of Government functions. The
essence of such a charge in the context was that the Congressman's conduct
was improperly motivated, and that was precisely what the speech or debate
clause generally foreclosed from executive and judicial inquiry. The Government
argued that the clause was meant to prevent only prosecutions based upon
F 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". The
language of the Constitution was framed in the broadest tenns. The broader
thrust of the privilege had been indicated by Ex parte Wason, which dealt
specifically with an alleged criminal conspiracy. Government had also contended
G that the speech or debate clause was not violated because the gravamen of
the charge was the alleged conspiracy, not the speech, and because the
defendant, not the prosecution, had introduced the speech. Whatever room ,
the Constitution might allow for such factors in the context of a different kind
of prosecution, they could not serve to save the Government's case under
the conspiracy charge. It was undisputed that the Congressman had delivered
H the speech and that he had received the funds. The controversy centered
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [BHARUCHA., .I.] 899
upon questions of who first decided that a speech was desirable, who prepared A
it, and what the Congressman's motives were for making it. The indictment
itself focused with particularity upon motives underlying the making of the
speech and upon its contents. The prosecution under a general criminal
statute dependent on such inquiries necessarily, contravened the speech or
dabate clause. The court added that its decision did not touch a prosecution
which, though, as here, it was founded on a criminal statute of general B
application, did not draw in question the legislative acts of a Congressman
or his motives for performing them. The court expressly left open for
consideration the case of a prosecution, which though it might entail an
inquiry into legislative acts or motivations, was founded upon a narrowly
drawn statute passed by Congress in the exercise of its legislative power to C
regulate the conduct of its members.

Daniel B. Brewster was a United States Senator. He had been charged
with accepting bribes in exchange for promises related to official acts while
a Congressman. The charge was that he had violated the terms of a narrowly
drawn statute. The Senator moved to dismiss the indictment before the trial D
began 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
upheld the claim of immunity. The Government preferred a direct appeal to the
Supreme Court. Burger, C.J., spoke for 6 members of the court. Brennan, J. and
White, J. delivered dissenting opinions, with which Douglas, J., joined. The E
charges were that the Senator, while such and a member of the Senate
Committee on Post Office and Civil Service, "directly and indirectly, corruptly
asked, solicited, sought, accepted, received and agreed to receive sums ........ .in
return for being influenced in his performance of official acts in respect to his
action, vote and decision on postage rate legislation which might at any time
be pending before him in his official capacity ......... " The other charge was in F
respect of official acts performed by him in respect to his action, vote and
decision on postage rate legislation which had been pending before him in
his official capacity. Burger, C.J. took the view that the immunities of the
speech or debate clause were not written into the Constitution simply for the
personal or private benefit of members of Congress, but to protect the integrity G
of the legislative process by insuring the independence of individual
legislators. Although the speech or debate clause's historic roots were in
English history, it had to be interpreted in the light of the American experience
and in the context of the American constitutional scheme of government
rather than the English parliamentary system. It had to be borne in mind that
the English system differed in that Parliament in England was the supreme H
900 SUPREME COURT REPORTS [1998] 2 S.C.R.

A authority, not a coordinate branch. The speech or debate privilege was
designed to preserve legislative independence, not supremacy. The courts'
task , therefore, was to apply the clause in such a way as to insure the
independence of the legislature without altering the historic balance of the
three co-equal branches of Government. Referring to the case of Johnson(ibid).
Burger, CJ., said that it unanimously held that a member of Congress could
B be prosecuted under a criminal statute provided that the Government's case
did not rely on legislative acts or the motivation for legislative acts. A y

legislative act had consistently been defined as an act generally done in
Congress in relation to the business before it. The speech or debate clause
prohibited inquiry only into those things generally said or done in the House
C or the Senate in the performance of official duties and into the motivation for
those acts. Counsel on behalf of the Senator had argued that the court in
Johnson had expressed a broader test for the coverage of the speech or
debate clause. He had urged that the court had held that the clause protected
from executive or judicial inquiry all conduct" related to the due functioning
of the legislative process." Burger, C.J., said that the quoted words did appear
D in the Johnson opinion, but they were taken out of context. In context, they
reflected a quite different meaning from that urged. In stating the speech or
debated clause did not apply to things which "in no wise related to the due
functioning of the legislative process" the court in Johnson had not implied
as a corollary that everything that "related" to the office of a member was
E shielded by the clause. In Johnson it had been held that only acts generally
done in the course of the process of enacting legislation were protected. In
no case had the court ever treated the clause as protecting all conduct
relating to the legislative process. In every case thus far before the court, the
speech or debate clause had been limited to an act which was clearly a part
of the legislative process, the due functioning of the process. The contention
F on behalf of the Senator for a broader interpretation of the privilege drew
essentially on the flavor of the rhetoric and the sweep of the language used
by the courts, not on the precise words used in any prior case, and not on
the sense of those cases, fairly read. It was not sound or wise, simply out
of an abundance of caution to doubly insure legislative independence, to
extend the privilege beyond its intended scope, literal language and history,
G to include all things in any way related to the legislative process. Given such
a sweeping reading, there would be few activities in which a legislator engaged
that he would be unable somehow to "relate" to the legislative process. The
speech or debate clause, admittedly, had to be read broadly to effectuate its
purpose of protecting the independence of the Legislative Branch but its
H purpose was not "to make members of Congress super-citizens, immune from
P.V. NARASJMHA RAO v. STA TE (CBl/SPE) (BHARUCHA, J.] 901
criminal responsibility. In its narrowest scope, the clause is a very large, albeit A
essential, grant of privilege. It has enabled reckless men to slander and even
destroy others with impunity, but that was the conscious choice of the
Framers". Burger, C.J ., did not discount entirely the possibility that an abuse
might occur, but this possibility which he considered remote, had to be
balanced against the potential danger flowing from either the absence of a
bribery statute applicable to members of Congress or holding that such a B
statute violated the Constitution. As he had noted at the outset of his
judgment, the learned Chief Justice said that the purpose of the speech or
debate clause was to protect the individual legislator, not simply for his own
sake, but to preserve the independence and thereby the integrity of the
legislative process. Financial abuses by way of bribes, perhaps even more C
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 was unlikely to enhance legislative
independence. The speech or debate clause was broad enough to insure the
historic independence of the Legislative Branch, essential to the separation D
of powers, but narrow enough to guard against the excesses of those who
would corrupt the process by corrupting its members. Taking a bribe was no
part of the legislative process or function; it was not a legislative act. It was
not, by any conceivable interpretation, an act performed as a part of or even
incidental to the role of a legislator. It was not an act resulting from the nature, E
and in the execution, of the office. It was not a thing said or done in the
exercise of the functions of that office. Nor was inquiry into a legislative act
or the motivation for a legislative act necessary to a prosecution under the
concerned statute or the indictment. When a bribe was taken, it did not matter
whether the promise for which the bribe was given was for the performance p
ofa legislative act or for use ofa Congressman's influence with the Executive
Branch. And an inquiry into the purpose of a bribe did not draw in question
the legislative acts of the member or his motives for performing them. Nor did
it matter if the member defaulted on his illegal bargain. The Government, to
make a prima facie case under the indictment, need not show any act of the
Senator subsequent to the corrupt promise for payment, for it was taking the G
bribe, not performance of the illicit compact, that was a criminal ~ct. The
learned Chief Justice said, "The only reasonable reading of the clause
consistent with its history and purpose, is that it does not prohibit inquiry
into activities that are casually or incidentally related to legislative affairs but
not a part of the legislative process itself'. H
902 SUPREME COURT REPORTS [1998] 2 S.C.R.

A . Brennan, J., dissenting, said. "I would. dispel at the outset any notion
that Senator Brewster's asserted immunity strains the outer limits of the
Clause. The Court writes at length in an effort to show t1iai 'Speech or
Debate' does not cover 'all conduct relating to the legislative process'.
........ Even assuming the validity of that conclusion, I fail to see its relevance
to the instant case. Senator Brewster is not charged with conduct merely
B "relating to the legislative process," but with a crime whose proof calls into
question the very motives behind his legislative acts. The indictment, then,
lies not at the periphery but at the very center of the protection that this Court
has said is provided a Congressman under the Clause." The learned Judge
said that there could be no doubt that the Senator's vote on new postal rates
C constituted legislative activity within the meaning of the speech or debate
clause. The Senator could not be prosecuted or called to answer for his vote
in any judicial or executive proceeding. But the Senator's immunity went
beyond the vote itself and "precludes all extra-congressional scrutiny as to
how and why he cast, or would have cast, his vote a certain way". The
learned Judge quoted Frankfurter. J., speaking in the case of Tenny v.
D Brandlwve, 95 L. Ed. 1019, thus: "One must not expect uncommon courage
even in legislators. The privilege would be of little value if they could be
subjected to the cost and inconvenience and distractions of a trial upon a ...
conclusion of the pleader, or to the hazard of a judgment against them based
upon a jury's speculation as to motives. The holding of this Court in Fletcher
E v. Peck, 3 L. Ex. 162, 176, that it was not consonant with our scheme of
government for a court to inquire into the motives of legislators, has remained
unquestioned ........... In times of political passion, dishonest or vindictive
motives are readily attributed to legislative conduct and as readily believed.
Courts are not the place for such controversies. Self-discipline and the voters
must be the ultimate reliance for discouraging or correcting such abuses."
F Neither the Senator's vote nor his motives for voting, however dishonourable,
could be the subject of a civil or criminal proceeding outside the halls of the
Senate. There was nothing complicated about this conclusion. It followed
simply and inescapably from prior decisions of the United States Supreme
Court setting forth the basic elements oflegislative immunity. Yet, the majority
G judgment declined to apply those principles to this case, for it found that the
Government can prove its .fase without referring to the Senator's official acts
or motives. The majqrity had adopted "a l)'holly artificial view of the charges
before us". The indictment alleged not the mere receipt of money, but the
receipt of money in exchange for a Senator's vote and promise to vote in a
certain way.· Insofar as these charges bore on votes already cast, the
H Government could not avoid proving the performance of the bargained-for
P.V. NARASIMHA RAO v. STATE (CBl/SPE) (BHARUCHA, J.] 903
acts and any inquiry in this behalf violated the spee~h or debate clause. The A
charges of only a corrupt promise to vote were equally repugnant to the
speech or debate clause. The majority view might be correct that only receipt
of the bribe, and not performance of the bargain, was needed to prove these
counts. But proof of an agreement to be "influenced" in the performance of
legislative acts was "by definition an inquiry into their motives, whether or
not the acts themselves or the circumstances surrounding them are questioned B
at trial. Furthermore, judicial inquiry into an alleged agreement of this kind
carries with it the same dangers to legislative independence that are held to
bar accountability for official conduct itself. As our Brother White cogently
states, ................ Bribery is most often carried out by prearrangement; if that
part of the transaction may be plucked from its context and made the basis C
of criminal charges, the Speech or Debate Clause loses its force. It would be
small comfort for a Congressman to know that he cannot be prosecuted for
his vote, whatever it might be, but he can be prosecuted for an alleged
agreement even if he votes contrary to the asserted bargain'.

Thus, even if this were an issue of first impression. I would hold that D
this prosecution, being an extra-congressional inquiry into legislative acts
and motives, is barred by the Speech or Debate Clause.

What is especially disturbing about the Court's result, however, is that
this is not an issue of first impression, but one that was settled six years ago E
in United States v. Johnson, 15 L.Ed.2d 681." The learned Judge added that
the majority could not "camouflage its departure from the holding of Johnson
by referring to a collateral ruling having little relevance to the fundamental
issues of legislative privilege involved in that case. I would follow Johnson
and hold that Senator Brewster's alleged promise, like the Congressman's
there, is immune from executive or judicial inquiry''. The learned judge said F
that he yielded nothing to the majority "in conviction that this reprehensible
" and outrageous conduct, if committed by the Senator, should not have gone
unpunished. But whether a court or only the Senate might undertake the task
is a constitutional issue of portentous significance, which must of course be
resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer G
that Congress assigned the task to the judiciary in enacting 18 USC 20 I. Our
duty is to Nation and Constitution, not Congress. We are guilty of a grave
disservice to both Nation and Constitution when we permit Congress to shirk
its responsibility in favor of the courts. The Framers' judgment was that the
American people could have a Congress of independence and integrity only
if alleged misbehavior in the performance of legislative functions was H
904 SUPREME COURT REPORTS (1998] 2 S.C.R.

A accountable solely to a Member's own House and never to the executive or
judiciary. The passing years have amply justified the wisdom of that judgment.
It is the Court's duty to enforce the letter of the Speech or Debate Clause in
that spirit. We did so in deciding Johnson. In turning its back on that decision
today, the Court arrogates to the judiciary. an authority committed by the
B Constitution, in Senator Brewster's case, exclusively to the Senate of the
United States. Yet the Court provides no principled justification, and I can
think of none, for its denial that United States v. Johnson compels affirmance
of the District Court. The decision is only six years old and bears the indelible
imprint of the distinguished constitutional scholar who wrote the opinion for
the Court. Johnson surely merited a longer life".
c
Justice White took substantially a similar view and part of what he said
has already been quoted.

The judgment in Brewster was followed in United States v. Henry
D Helstoski, 61 L. Ed. 2d 12 Brennan, J., dissenting, expressed the view ihat the
indictment in question should have been dismissed "since 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".

Broadly interpreted, as we think it should be, Article I 05(2) protects a
E Member of Parliament against proceedings in court that relate to, or concern,
or have a connection or nexus with anything said, or a vote given, by him
in Parliament.

The charge against the alleged bribe takers is that they "were party to
F a criminal conspiracy and agreed to or entered into an agreement with" the
alleged bribe givers "to defeat the no-confidence motion .......... by illegal means,
viz., to obtain or agree to obtain gratification other than legal remunerations"
from the alleged bribe givers "as a motive or reward for defeating the no-
confidence motion and in pursuance thereof "the alleged bribe givers "passed
on several lacs of rupees" to the alleged bribe takers, "which amounts were
G accepted" by them . The stated object of the alleged conspiracy and agreement
is to defeat the no- confidence motion and the alleged bribe takers are said
to have received monies "as a motive or reward for defeating" it . The nexus
between the alleged conspiracy and bribe and the no-confidence motion is
explicit. The charge is that the alleged bribe takers received the bribes to
H secure the defeat of the no-confidence motion.
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, J.] 905

While it is true that the charge against them does not refer to the votes A
that the alleged bribe takers; Ajit Singh excluded, actually cast against the no-
confidence motion and that it may be established de hors those votes, as the
Attorney General argued, we do not think that we can ignore the f~ct that the
votes were cast and, if the facts alleged against the bribe takers are true, that
they were cast pursuant to the alleged conspiracy and agreement. It must B
then follow, given that the expression "in respect of' must receive a broad
meaning, that the alleged conspiracy and agreement has a nexus to and were
in respect of those votes and that the proposed inquiry in the criminal
proceedings is in regard to the motivation thereof.

It is difficult to agree with the learned Attorney General that, though C
the words "in respect of' must receive a broad meaning, the protection under
Article I 05(2) is limited to court proceedings that impugn the speech that is
given or the vote th.at is cast or arise thereout or that the object of the
protection would be fully satisfied thereby. The object of the protection is to
enable members to speak their mind in Parliament and vote in the same way, D
freed of the fear of being made answerable on that account in a court of law.
It is not enough that members should be protected against civil action and
criminal proceedings, the cause of action of which is their speech or their
vote. To enable members to participate fearlessly in Parliamentary debates,
members need the wider protection of immunity against all civil and criminal E
proceedings that bear a nexus to their speech or vote. It is for that reason
that a member is not "liable to any proceedings in any court in respect of
anything said or any vote given by him". Article 105(2) does not say, which
it would have ifthe learned Attorney General were right, that a member is not
liable for what he has said or how he has voted. While imputing no such
motive to the present prosecution, it is not difficult to envisage a member who F
has made a speech or cast a vote that is not to the liking of the powers that
be being troubled by a prosecution alleging that he had been party to an
agreement and conspiracy to achieve a certain result in Parliament and had
been paid a bribe.

We are acutely conscious of the seriousness of the offence that the
G
alleged bribe taker are said to have committed. If true, they bartered a most
r· solemn trust committed to them by those they represented. By reason of the
lucre that they received, they enabled a Government to survive. Even so, they
are entitled to the protection that the Constitution plainly affords them. Our
sense of indignation should not lead us to construe the Constitution narrowly, H
-.......
906 SUPREME COURT REPORTS [1998] 2 S.C.R.

A imparing the guarantee to effective Parliamentary participation ar.d debate.

We draw support for the view that we take from the decision of United
States Supreme Court in Johnson and from the dissenting judgment of ,. -
Brennan, J. in Brewster.

B In Johnson, the United States Supreme Court held that the speech or
debate clause extended to prevent the allegation that a member pf Congress
had abused his position by conspiring to give a particular speech in return ...
for remuneration from being the basis of a criminal charge of conspiracy. The
~
essence of such a charge was that the Congressman's conduct was improperly
c motivated, and that was precisely what the speech or debate clause foreclosed
from executive-and judicial inquiry. The argument that the speech or debate
clause was meant to prevent only prosecutions based upon the content of
the speech, such as libel actions, but not those founded on the antecedent
unlawful conduct of accepting or agreeing to accept a bribe was repulsed.
Also repulsed was the argument that the speech or debate clause was not
D violated because the gravamen of the charge was the alleged conspiracy, not
the speech. The indictment focused upon the motive underlying the making
of the speech and a prosecution under a criminal statute dependent on such
inquiry contravened the speech or deba~e clause.

Brennan, J., dissenting in Brewster, said that Brewster had been charged
E
with a crime whose proof called into question the motives behind his legislative
acts. He could not only be prosecuted or called to answer for his vote in any
judicial or executive proceeding but his immunity went beyond the vote itself
and precluded "all extra- congressional scrutiny as to how and why he cast,
or would have cast; his vote a certain way". Neither the Senator's vote nor
F his motives for voting, however dishonourable, could be the subject of a civil
or criminal proceeding outside the halls of the Senate. The charge of a corrupt
promise to vote was repugnant to the speech or debate clause. It might be ,_
that only receipt of the bribe and not performance of the bargain was needed
to prove the charge, but proof of an agreement to be influenced in the
performance of legislative acts was "by definition an inquiry into their motives,
G whether or not the acts themselves or the circumstances surrounding them
are questioned at trial. Furthermore, judicial inquiry into an alleged agreement
of this land carries with it the same dangers to legislative independence that
1
are held tc- bar accountability for official conduct itself'. The Senator's
"reprehensible and outrageous conduct", if committed, should not have gone
H unpunished, but whether a court or only the Senate "might undertake the task
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, J.] 907
was a constitutional issue of portentous significance, which must of course A
be resolved uninfluenced by the magnitude of the perfidy alleged".

--· We cannot but be impressed by the majority opinion in Brewster but,
with respect, are more pursuaded by the dissent. The majority opinion stated
that the only reasonable reading of the speech and debate clause was "that
it does not prohibit inquiry into activities that are casually or incidentally B
related to legislative affairs but not a part of the legislative process itself'.
Upon this construction of the speech or debate clause, it c1.me to the
conclusion that a court could investigate whether Brewster had t~ken a bribe
to be influenced in the perfonnance of official acts in respect of his action,
vote, and decision on postage rate legislation. With respect, we cannot regard c
the act of taking a bribe to vote in a particular way in the legislature to be
merely "casually or incidentally related to legislative affairs". The Library of
Ccngress publication"The Constitution of the United States of America,
Analysis and Interpretation" s~ys, and we respectfully agree, "However, in
United States v. Brewster, while continuing to assert that the clause 'must be
read broadly to effectuate its purpose of protecting the independence of the D
Legislative Branch, 'the Court substantially reduced the scope of the coverage
of the clause".
'
For the first time in England Buckley, J. ruled in R. v. Currie that a
Member of Parliament who accepts a bribe to abuse his trust is guilty of the E
common law offence of bribery. The innovation in English law needs to be
tested in appeal. We say this with respect, having regard to earlier English
judgments, and we find support in the Twenty-second edition of Erskine
May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament,
wherein a foot note (on p.115) apropos the ruling reads thus:
F
"The court observed: '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' (quoted in Committee of Privileges.
First Report, HC351- ii (1994-95) pp 161-162). The court seems to have
had in mind, though no attempt was made to define, an area of activity
G
where a Member may act as such, without participating in 'proceedings
in Parliament'(where of course article IX will apply)."

Our conclusion is that the alleged bribe takers, other than Ajit Singh,
have the protection of Article I 05(2) and are not answerable in a court of law H
908 SUPREME COURT REPORTS [1998] 2 S.C.R.

A for the alleged conspiracy and agreement. The charges against them must fail.
Ajit Singh, not having cast a vote on the no-confidence motion, derives no
immunity from Article I 05(2).
1- -

What is the effect of this upon the alleged bribe givers? In the first
place, the prosecution against Ajit Singh would proceed, he not having voted
B on the non-confidence motion and, therefore, not having the protection of
Article I 05(2). The charge against the. alleged bribe givers of conspiracy and
agreement with Ajit Singh to do an u9lawful act would, therefore, proceed.

Mr. Rao submitted that since, by reason of the provisions of Article
I 05(2), the alleged bribe takers had committed no offence, the alleged bribe
C givers had also committed no offence. Article I 05(2) does not provide that
what is otherwise an offence is not an offence when it is committed by a
member of Parliament and has a connection with his speech or vote therein.
What is provided thereby is that a Member of Parliament shall not be answerable
in a court of law for something that has a nexus to his speech or vote in
D Parliament. If a member of Parliament has, by his speech or vote in Parliament,
committed an offence, he enjoys, by reason of Article 105(2), immunity from
prosecution therefor. Those who have conspired with the Member of Parliament
in the commission of that offence have no such immunity. They can, therefore,
be prosecuted for it.

E Mr. Rao contended that for the offence that the bribe takers had allegedly
committed they would be answerable to the Lok Sabha. There was a possibility
of the Lok Sabha deciding one way upon the prosecution before it of the
alleged bribe takers and the criminal court deciding the other way upon the
prosecution of the alleged bribe givers. A conflict of decisions upon the same
set of facts being possible, it had to be avoided. The charge against the
F alleged bribe givers had, therefore, to be quashed. There is in the contention
a misconception. Article I 05(2) does not state that the member of Parliament
who is not liable to civil or criminal proceedings in a court of Jaw is liable to
the same civil or criminal proceedings in Parliament. Parliament in India is not
a Court of Record. It may not exercise judicial powers or entertain judicial
G proceedings. The decisions of this Court so holding have already been
referred to. The alleged bribe takers, except Ajit Singh, who are entitled to the
immunity conferred by Article 105(2) are not liable to be tried in the Lok Sabha
for the offences set out in the charges against them or any other charges, but
the Lok Sabha may proceed against them for breach of privileges or contempt.
There is, therefore, no question of two fora coming to different conclusions
H in respect of the same charges.
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [BHARUCHA, J.] 909
Mr. Rao submitted that the alleged bribe givers had breached Parliament's A
privilege and been guilty of its contempt and it should be left to Parliament
to deal with them. By the same sets of acts the alleged bribe takers and the
alleged bribe givers committed offences under the criminal law and breaches
of Parliament's privileges and its contempt. From prosecution for the former,
the alleged bribe takers, Ajit Singh excluded, enjoy immunity. The alleged B
bribe givers do not. The criminal prosecution against the alleged bribe givers
must, therefore, go ahead. For breach of Parliament's privileges and its contempt,
Parliament may proceed against the alleged bribe takers and the alleged bribe
givers.

Article 105(3). c
Relevant to the submission on Article 105(3) is the judgement in Ex
Parle Wason, 1869 L.R.4 QBD 573. Rigby Wason moved the Court of Queen's
Bench for a rule to call upon a metropolitan police magistrate to show cause
why he should not take on record the complaint of Wason to prosecute Earl
Russell, Lord Chelmsford and the Lord Chief Baron for conspiracy. Wason's D
affidavit in support of the compiaint stated that he had given to Earl Russell
a petition addressed by him to the House of Lords, which Earl Russell had
promised to present. The petition charged the Lord Chief Baron, when a
Queen's Counsel, with having told a wilful and deliberate falsehood to a
committee of the House of Commons sitting as a judicial tribunal. The petition E
prayed for an inquiry into the charge and, if the charge was found true, for
action against the Lord Chief Baron under the law to remove judges. Earl
Russell, Lord Chelmsford and the Lord Chief Baron had, according to the
Wason's affidavit, prevented the course of justice by making statements, after
conferring together, which they knew were not true in order to prevent the
prayer of his petition being granted; Wason alleged that Earl Russell, Lord F
Chelmsford and the Lord Chief Baron had conspired and agreed together to
prevent the course of justice and injure himself. The alleged conspiracy
consisted in the fact that Earl Russell, Lord Chelmsford and the Lord Chief
Baron "did agree to deceive the House of Lords by stating that the charge
of falsehood contained in my petition was false, and that I was a calumniator; G
when Earl Russell, Lord Chelmsford, and the Lord Chief Baron well knew that
the charge of falsehood committed by the Lord Chief Baron, when Queen's
Counsel, was perfectly true''. Wason desired "to prefer an indictment against
Earl Russell, Lord Chelmsford, and the Lord Chief Baron for conspiracy". The
magistrate had refused to take recognizance of the complaint on the ground
that no indictable offence had been disclosed by Wason's information, H
910 SUPREME COURT REPORTS [1998] 2 S.C.R.

A whereupon Wason moved the Court Cockburn', C.J. said, "I entirely agree
that, supposing the matter brought before the magistrate had been matter
cognizable by the criminal law, and upon which an indictment might have
been preferred, the magistrate would have had no discretion, but would have
been bound to proceed ...... On the other hand, I have no doubt that, supposing
B the matter brought before the magistrate does not establish facts upon which
an indictment could be prP.ferred and sustained, the magistrate has a discretion
which, if rightly exercised, .we ought to uphold; and the question is whether
the matter brought by the present applicant before the magistrate was subject-
matter for an indictment.... The infonnation then charges that Earl Russell. Lord
Chelmsford, and the Lord Chief Baron agreed to deceive the House of Lords
C by stating that the charge of falsehood brought against the Lord Chief Baron
was unfounded and false, whereas they knew it to be true. 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
D were made, in the House of Lords. I think, therefore, that the magistrate,
-
looking at this and the rest of the infonnation, was warranted in coming to 1.

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
E frustrating the petition. Such acharge 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 the persons guilty of it amenable
F to the criminal law .............". Blackbum, J. was of the same opinion. He said,
"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
G knowledge of the persons making them. I entirely concur in thinking that the
infonnation did only charge an agreement to make statements in the House
of Lords, and therefore did not charge any indictable offence". Lush, J.
agreed. He said that he could not doubt that the charge was of "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
H not to allow it to be doubted for a moment that the motives or intentions of
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA. J.] 911

members of either House cannot be inquired into by criminal proceedings with A
respect to anything they may do or say in the House".

As we read Ex Parle Wason, the Court of Queen's Bench found that
Wason desired criminal proceedings to be commenced against three members
of Parliament for conspiring to make, and making statements in Parliament B
which he alleged were untrue and made to harm his cause. The Court held

-
that criminal proceedings could not be taken in respect of statements made
by Members of Parliament in Parliament nor for conspiring to make them. Ex
parte Wason, therefore, does not support Mr. Rao's submission that his client
P.V. Narasimha Rao and others of the alleged bribe givers who were members
of Parliament have "immunity from criminal proceedings in a court oflaw with C
respect to the charge of conspiracy in connection with the voting in Parliament
on the no-confidence motion". The speech or vote of the alleged bribe giving
members of Parliament is not in issue nor, therefore, a conspiracy in this
behalf. In contrast, all the three alleged conspirators in Ex parte Wason were
members of Parliament and what was alleged against them was that they that D
they had made false statements to Parliament in consequence of a conspiracy.
If what is alleged against members of Parliament in India is that they had made
false statements to, or voted in, Parliament in consequence of a conspiracy,
they would be immune from prosecution by reason of Article I 05(2) itself and
no occasion would arise to look into the privileges enjoyed by the House of
Commons under Article 105(3). E
To repeat what we have said earlier, Mr. Rao is right, subject to two
caveats, in saying that Parliament has the power not only to punish its
members for an offence committed by them but also to punish others who had
conspired with them to have the offence committed: first, the actions that
.i..
constitute the offence must also constitute a breach of Parliament's privilege F
or its contempt; secondly, the action that Parliament will take and the
punishment it will impose is for the breach of privilege or contempt. There is
no reason to doubt that the Lok Sabha can take action for breach of privilege
or contempt against the alleged bribe givers and against the alleged bribe
takers, whether or not they were members of Parliament, but that is not to say G
that the courts cannot take cognizance of the offence of the alleged bribe
givers under the criminal law.

Mr. Rao relied upon observations in the Eighteenth Edition (1971) of
Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of
Parliament. There is before us the Twenty-second Edition. Part of what is H
912 SUPREME COURT REPORTS [1998] 2 S.C.R.

A contained in th~ earlier edition is not find in the later edition. That May's
treatise is an authoritative· statement on its subject has been recognised by
this Court (Keshav Sing/i's case, ibid). May's earlier edition stated, "It is
sometimes said that, since the privileges of Parliament do not extend to
criminal matters~ therefore Members are amenable to the course of criminal
B justice for offences committed in speech or action in the House ......... It may
prove to be true that things said or done in Parliament, or some of them, are
not withdrawn from the course of criminal justice ..... There is more doubt as
to whether criminal acts committed in Parliament remain within the exclusive
cognizance of the House in which they are committed ....... ". Quoting Mr.
Justice Stephen in Bradlaugh v. Gosset, where the learned judge said that he
C "knew 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", May observed that "it must be supposed that what the
learned judge had in mind was a criminal act as distinguished from criminal
speech". May went on to state, "It is probably true, as a general rule, that
a criminal act done in the House is not outside the course of criminal justice.
D But this rule is not without exception, and both the rule and the exception
wi II be found to depend upon whether the particular act can or can not be <.
regarded as a proceeding in Parliament... ....... .it would be hard to show that
a criminal act committed in the House by an individual Member was part of
the proceedings of the House ...... Owing to the lack of precedents there is no
E means of knowing what view the courts would take of a criminal act committed
in Parliament, or whether they would distinguish action from speech in respect
of amenability to the criminal law. With regard to a crime committed in Parliament,
the House in which it was committed might claim the right to decide whether
to exercise its own jurisdiction or to hand the offender over to the criminal
courts. In taking this decision, it would no doubt be guided by the nature of
F the offence, and the adequacy or inadequacy of the penalties, somewhat
lacking in flexibility, which it could intlict.. ...... ln 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 offence, or where for any other
cause the House has thought a proceeding at law necessary, either as a
G substitute for, or in addition to, its own proceeding, the Attorney General has
been directed to prosecute the offender".

May's Twenty-second Edition is more succinct, and this is what it says:
-
"Moreover, though the Bill of Rights will adequately protect a
H Member as regards criminal law in respect of anything said as part of
j
P V. NARASIMHA RAO v. STATE (CBl/SPE) [BHARUCHA. J.] 913
'
proceedings in Parliament, there is more doubt whether criminal acts A
committed in Parliament remain within the exclusive cognizance of the
House in which they are committed. In the judgment of the House of
Lords in Eliot's case (see pp 73 and 84n), it was deliberately left an
open question whether the assault on the Speaker might have been
properly heard and determined in the King's Bench. The possibility B
that it might legally have been so determined was admitted by one of
the managers for the Commons in the conference with the Lords
which preceded the writ of error. In Bradlaugh v. Gosset, Mr. Justice
Stephen said that he 'knew 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". Since he went C
on immediately to refer to Eliot's case and accepted the proposition
"that nothing said in Parliament by a Member, as such, can be treated
as an offence by the ordinary courts', it must be supposed that what
the learned judge had in mind was a criminal act as distinguished from
criminal speech.
D
In such cases, it will be essential to determine where the alleged
.• criminal act stands in relation to the proceedings of the House. An
officer carrying out an order of the House is in the same position as
the Members who voted the order. In Bradlaugh v Erskine, the Deputy
Serjeant at Arms was held to be justified on committing the assault
with which he was charged, since it was committed in Parliament, in E
pursuance of the order of the House, to exclude Bradlaugh from the
. House. As Lord Coleridge observed, 'The Houses cannot act by
themselves as a body; they must act by officers'. It would be hard
to show how a criminal act committed by a Member, however,' could
form part of the proceedings of the House, Apar from Eliot's case 350 p
years ago, no charge against a Member in respect of an allegedly
)L. criminal act in Parliament has been brought before the courts. Were
such a situation to arise, it is possible that the House in which the
act was committed might claim the right to decide whether to exercise
its own jurisdiction. In taking this decision, it would no doubt be
guided by the nature of the offence, and the adequacy or inadequacy G
of the pe:1alties, somewhat lacking in flexibility, which it could inflict."
The learned Attorney General submitted, and the English judgments
and Reports dealt with earlier bear out the submission, that the bribery of a
member of the House of Commons, acting in his Parliamentary capacity, did
not, at the time the Constitution came into effect, constitute an offence under H
914 SUPREME COURT REPORTS [1998] 2 S.C.R.

A the English criminal law or the common law. Clearly, therefore, no privilege or
immunity attached in England to an allegation of such bribery or an agreement
or conspiracy in that behalf which could be imported into India at the
commencement of the Constitution under the provisions of Article I05(3).
Secondly, Article I 05(2) provides for the sum total of the privileges and
B immunity that attach to what is said in Parliament and to votes given therein.
Article I 05(3) applies only "in other respects''. To what we are here concerned
with the provisions of Article I 05(2) apply, to the extent indicated earlier. The
>·
provisions of Article I 05(3) are, therefore, not attracted and they do not
render assistance to the alleged bribe givers.

C Prevention of Corruption Act, 1988

In considering the case on the Prevention of Corruption Act, 1988 (the
said Act) we shall not take account of what we have already held and write,
as it wer~, upon a clean slate. Some reference to the provisions of the said
Act is necessary at the threshold.
D
Section. 2(b) of the said Act defines "public duty" thus:
•.
'public duty' means a duty in the discharge of which the State, the
public or the community. at large has an interest."

Section 2( c) of the said Act defines public servant thus:
E
"(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;
F
.(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
G owned or controlled or aided by the Government or a Government
company as defined in Section 617 of the Companies Act, 1956 (I 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
H adjudicatory functions;
P.V. NARASIMHA RAO v. ST ATE (CBI/SPE) [BHARUCHA, J.] 915
(v) any person authorised by a court of justice to perform any duty, A
in connection with the administration of justice, including a liqu·idator,
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 or justice or by a
competent public authority; 8
(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 C
or required to perform any public duty;

(ix) any person who is the president, secretary or other office-bearer
of a registered cooperative 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 D
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 (I of 1956); ·

(x) any person who is a chairman, member or employee of any Service E
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 sefoction on behalf of such
Commission or Board. '

(xi) any person who is a Vice- Chancellor or member of any governing F
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 publ,ic
authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an . G
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 H
916 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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.
B
"Section 19 of the said Act deals with the previous sanction that is
necessary for prosecution for the offences mentioned therein. It read thus:" •

"19. Previous sanction necessary for prosecution. - ( 1) No court shall
take cognizance of an offence punishable under Sections 7, I 0, 11, 13
C 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;
D (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 the case of any other person, of the authority competent to
remove him from his office.
E
(2) Where for any reason whatsoever any doubt arises as to
whether the previous sanction as required under sub-section (I) 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
F
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), -
G (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(J ), unless in the opinion
of that court, a failure of justice has in fact been occasioned thereby;

H (b) no court shall stay the proceedings under this Act on the
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, J.) 917

ground of any error, omission or irregularity in the sanction granted A
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 t•nder 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 B
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 C
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; D

(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. E
Section 7, mentioned in Section 19, defined the offence of a public servant
taking gratification other than legal remuneration in respect of an official act
and the penalty therefor. Section I0 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, F
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). G

The offences with which the appellants are charged are those set out
in Section 120(B) of the Indian Penal Code with Section 7, Section 12 Section
13(l)(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: H
918 SUPREME 'COURT REPORTS [1998] 2 S.C.R.

A "Section 120-B (of the Indian Penal Code). Punishment of criminal
conspir.11cy. - (I) Whoever is a party to a criminal conspiracy to commit
~n 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
B offence.

(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as aforesaid shall 17"

be punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.
c
'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
D or for any other person, any gratification whatever, other than legal
remunerations, 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
E 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.
F 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 beliefth11t he is about to be in office, and that he will then serve
t~em, he may be guilty of cheating, but he is not guilty of the offence
defined in this section.
G
(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 remune~ation which a public servant can lawfully demand,
H but include all remuneration which he is permitted by the Government
t
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA. J.] 919
or the organisation, which he serves, to accept. A
(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.
B
(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. C

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 D
years and shall also be liable to fine.

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

(a) if he habitually accepts or obtains or agrees to accept or E
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 F
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 likely to be concerned in any proceeding 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 . G
subordinate, or from any person whom he knows to be interested in
or related to the person so concerned or

(c) ifthe 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 H
920 SUPREME COURT REPORTS [1998] 2 S.C.R.

A (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;
B or
>-
(iii) while holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without any public
interest; or
-
c (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 purposes of this section, "known sources of
D 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
E one year but which may extend to seven years and shall also be liable
to fine."
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
F Statement of Objects and Reasons reads thus:
"Statement of Object and Reasons - I. 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
G
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
H through corrupt means, including from transferees of such wealth.
I
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA. J.j 921

The Bill seeks to incorporate all these provisions with modifications A
so as to make the provisions more effective in combating corruption
among public servants.

3. The Bill, inter a/ia, 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 B
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 C
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. D
Consequently, it is proposed to delete those sections with the
necessary saving provision.

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

In the 1947 Act the definition of "public servant" in the Indian Penal E
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:
F
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 G
discharge, whether by himself or as a member of anybody 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, H
•
922 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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;

B 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;
-
c
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
D 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
E 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;
F
Tenth. - Ev.ery 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
G 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;
I
H Twelfth. - Every p~rson -
- .
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [BHARUCHA, J.] 923
(a) in the service or pay of the Government or remunerated by fees A
or commission for the performance of any public duty by the
Government;

(b) in the service or pay ofa local authority, a corporation established
by or under a Central, Provincial or State Act or a Government
company as defined in Section 6 I 7 of the Companies Act, 1956 B
(I of 1956)."

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

"6. Previous sanction necessary for prosecution. - (I) No court C
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.
D
(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 E
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 F
remove him from his office.

(2) Where for any reaso·n whatsoever any doubt arises whether
the previous sanction as required under sub-section (I) 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 G
have been competent to remove the public servant from his office at
the time when the offence was alleged to have been committed."

It is. not in dispute that the prosecutions against all the accused have
not received the previous sanction contemplated by Section 19 of the said
Act. H
924 SUPREME COURT REPORTS (1998] 2 S.C.R.

A Mr. P.P. Rao submitted that a Constitution Bench tad in the case of R.S.
Nayak v. A.R. Antulay, [1984] 2 S.C.R. 495, held that a member of a State
legislature was not a public servant, but that the finding therein that he
performed a pub I ic 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 a interest which could be enforced at law. A mandamus could not
B 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 ,
C 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 Antulay 's 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
D 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 judgement in K. Veeraswamy v.
Union of India, [1991] 3 S.C.R. 189. The judgment of the Delhi High Court
under appeal noted that it was not disputed that there was no authority
E 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) Cr.L.J. 3604. A member of Parliament and a member of a State legislature
did not hold 11n 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.
F 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
G 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 constructed 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
H l~gislatures, it could not be argued on behalf of the Union Government, by
P.V. NARASIMHA RAO v. STA TE (CBl/SPE) [13HARUCHA, J.] 925

reason of the principle of promissory estoppel, that the said Act covered A
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 B
obligation was to remain present for a given number of days. Mr. Sibbal
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 C
no authority competent to appoint a member of Parliament and, therefore,
there was no authority which could remove him.

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 Object and Reasons. 'Public office' had been D
defined in Blacks Law Dictionary (Sixth edition, pg I 082) 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 E
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 Antulay 's
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 F
Parliament occupied an office had been the view taken in the cases of Bunting
and Boston (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 G
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 H
926 SUPREME COURT REPORTS [1998) 2 S.C.R.

A receive a salary per mensem "during the whole of his tenn of office" and an
allowance per day "during any period of residence on duty" . The accused,
other than D.K. Adikeshavulu and M. Thimmagowda, 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 Minister's
B 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
C sanction. Alternatively, the authority to remove a Member of Parliament was
the President under the provisions of Article I 03 of the Constitution.

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
D 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 Section 2( c) of the said Act should
be construed only in the light of the existing law and not on its own tem1s.
It is for the Court to construe Section 2( c). If the Court comes to the conclusion
that members of Parliament and the State legislatures are clearly covered by
E 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 Section
2(c) itself, that Members of Parliament and the State legislators are, clearly,
F public servants, no resort to the provisions of Section 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).

G 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. then!fore,
must the person hold an office but he must be authorised or requin!d by
virtue of that office to perfonn a public duty. Public duty is defined by Section
2(b) of the said Act to mean "a duty in the discharge of which the State, the
H public or that community at large has an interest." In a democratic form of
P.V. NARASIMHA RAOv. STATE (CBl/SPE) [BHARUCHA, J.) 927
Government it is the Member of Parliament or a State legislature who represents A
the people of his constituency in the highest. law making bodies at the Cen.tre
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 B
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 Antulay 's case 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 C
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
privileges, no duties. Members of Parliament and the State legislatures would
do well to remember that if they have privileges it is better to perform their·
duty effectively and fearlessly representini their constituencies. D

In Antulay 's case 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: E
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, F
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 -
G
(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 H
928 SUPREME COURT REPORTS (1998) 2 S.C.R.

A within the meaning of that expression in Section 21 of the Indian Penal Code.
It was in ihis context .that thi~ Court made the observation that we have
already quoted. Having regard to the fact that there was no clause in section
2 I of the Indian Penal Code which is comparable to Section 2(c)(viii) of the
said Act,the decision in Antulay 's case is of little assistance in this context.

B The judgment of the Orissa High Court in the case of Habibulla Khan
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 principle judgment are relevant.

C 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
D 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
Govind/a/ Jee Ranchhod/a/jee v. Cl. T, Ahmedabad, 34 ITR 92: AIR
( 1959) Born. I 00 (which is a judgment of Bombay High Court rendered
E By Chagla, C.J.); (2) Champa/a/ v. State of Madhya Pradesh, AIR
(1971) MP 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, AIR(l968) SC 1495: (1968) Lab IC 1525 which is rendering by
a Constitution Bench stating "an office means no more than a position
F to which certain duties are attached"; (4) Kanta Kathuria v.
Manikchand, AIR (1970) SC 694, 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 Stasteman 's case referred to the
observations of Lord Wright in Mc Millan v. Guest, 1942 Ac 561, that
the meaning of the word 'office' covered four columns of the New
G
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
H of the person who filled it, which went on and was filled in succession
P.V. NARASIMHA RAO v. STATE (CBI/SPE)[BHARUCHA. J.] 929

by successive holders" by further stating that there was no essential A
difference between the definitions given by Lord Wright and Lord
Atkin: and (5) Madhukar v. Jaswant, AIR ( 1976) SC 2283, in which
the definition given in the Stateman 's case was quoted with approval.

xxx xxx xxx
B
7. Shri Das, learned Government Advocate, does not contest the
..(
submission ofShri 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 C
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
others one House. Article 170 states that the Legislative Assembly of D
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 E
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. F
8. Relying on the aforesaid provisions, it is contended rightly, by
Shri Rath that the office of the M.L.A. is created by the Constitution
read with the Representation of the People Act. 1950, whereas the
actual election of M.L.As. is supervised, directed and controlled by
the provisions contained in Articles 324 to 329 of the Constitution G
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 M.L.A. does H
930 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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
B M.L.A., as would appear from Chapter Ill 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 Antulay ·s case, which is as below:-
c
'' ..... it would be rather difficult to accept an unduly wide submission
that M.L.A. is not performing any public duty. However it is
unquestionable that he is not performing any public duty either
di_rected by the Government or for the Government. He no doubt
perfonns public duty cast on hi111 by the Constitution and his electorate.
D He thus discharges constitutional functions ..... "

Having held that a 111ember of a Legislative Asse111bly was a public servant
under the said Act, the Orissa High Court went on to consider which authQ$y
was competent to gives anction for his prosecution. That is an aspect with
E which we are not i111mediately concerned and we shall revert to this judgment
later.

We think that the view of the Orissa High Court that a member of a
Legislative Asse111bly is a public servant is correct. Judged by the test
enunciated by Lord Atkin in Mc Millan v. Guest and adopted by Sikri J, in
F Kanta Kathuria 's 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
substantiative. It is filled, ordinarily for the duration of the legislative term,
G by the successful candidate in the election for the constituency. When the
legislative ter111 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
H purposes of the said Act.
I
P.Y. NARASIMHA RAO v. STATE (CBl/SPE) [BHARUCHA. J.] 931
1*

This brings us to the issue of sanction under the provisions of Section A
19 of the said Act. The Section has been quoted. Sub-section (I) opens with
the words "No court shall take cognizance of an offence punishable under
Sections 7, IO, 11, 13 and 15alleged 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 B
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 proceed cognizance; it must be prior
sanction. Fourthly, and this from the point of view of this judgement is most
material, the Section covers all public servants. In other words, if any public C
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(l ). 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 D
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 that State Government. Clause
(c) says that the sanction in the case of any other public servant must be of E
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 tenns of
clauses (a) and (b), fall

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

In support of the argument, the learned Attorney General relied upon
the judgment of this Court in SA. Venkataraman v. The State, [1958] S.C.R. G
1040, in which, with reference to the provisions of Section 6 of the 1947 Act,
it was observed :

"When the provisions of s. 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 mus be H
932 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A 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 com1 from taking
B 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
C 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
D 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
E 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
F 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
G pub Iic 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
H read it, it applies to all who are public servants for the purposes of the said
I
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, .I.] 933
Act. A
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 B
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 C
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 D
and 15.

The Attorney General drew our attention in this context to the conclusion
of the Orissa High Court in the case of Habibullah Khan aforementioned.
The Orissa High Court found that there was no authority which could grant E
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 "an M.L.A. F
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 require realise the anomaly of our conclusion, because though
Section 19 of the Act makes no distinction between one public servant and G
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."

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 tfie purpose of H
934 SUPREME COURT REPORTS (1998] 2 S.C.R.

A previous sanction, the conclusion must be that where the Court finds that
there is QO authority competent to remove a public servant, that public
servant cannot be prosecuted for offences punishable under Sections 7, I 0, 11, 13
and 15 of the said Act because there is no authority that can sanction such·
prosecution.

B This Court in the case of K. Veeraswami v. Union of India and others,
[ 1991] 3 S.C.R. 189, considered the applicability of the 194 7 Act to a Judge
of a High Court or the Supreme Cou1t. 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
F.i.R. was filed in the Court of Special Judge. The appellant retired on attaining
C 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.
Th is Court, by a majority, concluded that a Judge of a High Court and the
D 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
E 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 of India. Specifically, the
majority view was that a public servant could not be prosecuted for the
offences specified in Section 6 of the 194 7 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 commen,ce
F 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 -I, -
under clause (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
G authority ...... ".

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
H accept his contention that the provisions of Section 19 did not apply, theTe ·
-l
P. V. NARASIMHA RAO v. STATE (CBl/SPE) [BHARUCHA . .1.) 935
being no authority competent to remove such member from his office. In other A
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.
B
The passage in Veeras·wamy 's case 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 (I) of Section 6 exhaustively
provide for the competent authority to grant sanction for prosecution C
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 (I) of Section 6. It D
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 (I) of Section 6 must held
to be outside the purview of the Act since this special enactment was
not enacted to cover that category of public servants inspite of the E
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 (I) of Section 5, can be punished in accordance with
sub-section (2) of Section 5, after investigation of the offence in the F
manner prescribed and with the previous sanction of the competent
- I-
authority obtained under Section 6 of the act in a 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 G
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 constitution of
the provisions of the Act can be made for the purpose of achieving H
936 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A the object of that enactment."

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
B 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
C 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
D person is found to satisfy the requirements of the definition of a public.
servant, the Court must, as was said by the majority in Veeraswami 's 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
E of not being able to find such authority.
It is convenient now to notice a submission made by Mr. Sibal based
upon Veeraswami 's case. 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,
F 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
G 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.

H Before we move on to consider the alternative submission of the
I
P.V. NARASIMHA RAO v. STA TE (CBl/SPE) [BHARUCHA, .I.] 937
Attorney General. we must note the judgment in S.A. Venkataraman v. The A
State, [I 958] S.C.R. I040. upon which the learned Attcrney General relied for
his first proposition, namely, that the provisions of Section 19 do not apply
to a public servant in resect of whom there is no authority competent to
remove him from his office. The appellant Venkatraman was a public servant.
After he was dismissed from service consequent upon a departmental inquiry, B
he was charged with criminal misconduct under the 194 7 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 \Vas not a public
servant at the time cognizance of the offence was taken. The following C
passage in this Court's judgment was relied upon :

"It was suggested that cl. (c) in s.6( I) refers to persons other than
those mentioned in els. (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 D
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 ha·1ing 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 E
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 F
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 s.2 I
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 G
does not come within the description of a public servant under els.
(a) and (b), is accused of an offence committed by him as a public
servant as specified in s. 6 would be entitled to rely on the provisions
of that section and object to the taking of cognizance without a
previous sanction." H
938 SUPREME COURT REPORTS [ 1998) 2 S.C. R.

A We do not find in the passage anything that can assist the Attorney General's
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
B authority competent to remove him is a must.

For the purposes of appreciating 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
C relation to members of State Legislatures are contained in Articles 190, I 91
and 192 under the same head in Chapter III of Part VI of the Constitution.)
Articles I0 I, 102 and l 03 read thus:

"101. Vacation of Seats. - (I) No person shall be a member of both
Houses of Parliament and provision shall be made by Parliament by
D 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 ofa House of the Legislature ofa State, then, at the
E expiration of such period as may be specified in rules made by the
President, that person's 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 -

F (a) becomes subject to any of the disqualifications mentioned in
clause (I) or clause (2) of article I02 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,
G his seat .shall thereupon become vacant:

Provided that in the case of any resignation 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
H or genuine, he shall not accept such resignation.
I
P.V. NARASIMHA RAO v. STATE (CBI/SPE) ~HARUCHA, J.) 939

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

Provided that in computing the said periods of sixty days no
account shall be taken of any period during which the House is
prorogued or is B.djourned for more than four consecutive days. B
102. Disqualifications for membership. - (I) 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 oflndia or C
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

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

(e) if he is so disqualified by or under any law made by Parliament. E
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.
F
(2)A person shall be disqualified for being a member of either House
of Parliament if he is so disqualified under the Tenth schedule.

103. 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 G
in clause (I) of article 102, the question shall be referred for the
A 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. H
--
·~

940 SUPREME COURT REPORTS (1998] 2 S.C.R.

A 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 I 02(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
B court of unsoundness of mind; undischarged insolvency; the citizenship of
a foreign State or acknowledgement 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
C Schedule, that the question is referred to the President for his decision. The
President's decision is final but, before giving it, the President has to obtain
the opinion of the Election Cc;;.uussiou and has to act according to such
opinion.

The question for our purposes is whether, having regard to the terms
D of Article IOI, 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 I 01 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
E operation of law and is self operative. Reference to the President under Article
I 03 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 I 0 I. His
order would not remove the Member of Parliament from his seat or office but
F 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
G of Parliament from his office.

The Attorney General submitted that the scheme of the said Act, as
compared to the 194 7 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
H inherent jurisdiction or a nullity. A trial without sanction had to be upheld
I
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [BHARUCHA, J.] 941
unless there had been a failure of justice. This feature had a material bearing A
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 B
our findings upon the accused, it is not necessary to consider this submission.

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 C
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.
D
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 Manda! Shibu Soren, Simon Marandi,
Shailender Mehto, Ram Lakhan Sing Yadav, Ram Saran Yadav, Roshan Lal,
Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed (accused E
nos. 3, 4, 5, 6, 16, 17, 18, 19, 20 and 21) are entitled to the immunity conferred
by Article I 05(2).

D.K. Adikeshavulu and M. Thimmogowda (accused nos.12 and 13) were
at all relevant times private persons. The trial on all charges against them must F
proceed.

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. G
P.V. Narasimha Rao, Satish Sharma, V. Rajeswar Rao, Ram Linga Reddy,
M. Veerappa Moily and Bhajan Lal(accused nos. I. 2 8, IO, 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 1208 of the Indian Penal Code and H
942 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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.

Ajit Singh (accused no.15) was a public servant, being Member of
Parliament, when cognizance of the charges against him was taken. He is
B charged with substantive offences under Section 1208 of the Indian Penal
Code and Section 7 and 13(2) of the said Act. The trial of the charge against
him under Section 1208 of the Indian Penal Code must proceed.

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

G.N. RAY, J. I had the privilege of reading both the judgments - one
by my learned brother Mr. Justice S.C. Agrawal and the other by learned
brother Mr. Justice S.P. 8harucha. Though I respectfully concur with the
findings of Mr. Justice Agrawal and agree with the reasonings for such
D findings that (1) a member of Parliament is a public servant under Section 2(c)
of the Prevention of Corruption Act, 1988 and (2) since there is no authority
competent to grant sanction for the prosecution of a Member of Parliament
under Section 19(1) of the Prevention of Corruption Act 1988, the Court can
take cognizance of the offences mentioned in Section 19(1) in the absence of
sanction but before filing a chargesheet in respect of an offence punishable
E under Sections 7,10,11,12 and 15of1988 Act against a Member of Parliament
in a criminal court, the prosecuting agency shall obtain the permission of the
Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.
I have not been able to persuade myself to concur with the reasonings and
the finding in the judgment of Mr. Justice Agrawal that a Member of Parliament
does not enjoy immunity under Article 105(2) or 105(3) of the Constitution
F
from being prosecuted before a criminal court for an offence involving offer
or acceptance of bribe for the purpose of speaking or giving his vote in
Parliament or in any committee thereof.
·•( -
Article 105 of the Constitution deals with powers, privileges etc. of the
G Houses of Parliament and the members and committees thereof. Sub article (I)
of Article 105 makes it evident that subject to the provisions of the Constitution
and rules and standing orders regulating the procedure of Parliament, there
shall be freedom of speech in Parliament. The provisions of Sub-article (I)
Article 105 indicates in no uncertain term that the freedom of speech guaranteed
under Sub Article (1) of Article 105 is independent of the freedom of speech
H guaranteed under Article 19 of the Constitution and such freedom of speech
P.V. NARASJMHA RAO v. STATE (CBI/SPE) [G.N. RAY, J.] 943
under Article 105 (I) is not inhibited or circumscribed by the restrictions A
under Article 19 of the Constitution. In order to ensure effective functioning
of Parliamentary democracy, there was a felt need that a Member of Parliament
will have absolute freedom in expressing his views in the deliberations made
in the floor of Parliament. Similarly he must enjoy full freedom in casting his
vote in Parliament.
B
The protections to be enjoyed by a Member of Parliament as contained
in Sub Article (2) of Article 105 essentially flows from the freedom of speech
guaranteed under Sub- Article (1) of Article 105. Both the Sub-articles (I) and
(2) compliment each other and indicate the true content of freedom of speech
and freedom to exercise the right to vote envisaged in Article 105 of the C
Constitution. The expression "in respect of' appearing in several articles of
the Constitution and in some other legislative provisions has been noticed
in a number of decisions of this Court. The correct interpretation of the
expression "in respect of can not be made under any rigid formula but must
be appreciated with references to the context in which it has been used and
the purpose to be achieved under the provision in question. The context in D
which the expression "in respect of' has been used in sub article (2) of Article
105 and the purpose for which the freedom of speech and freedom to vote
have been guaranteed in sub article (2) of Article 105 do not permit any
restriction or curtailment of such right expressly given under sub article (I)
anq sub article (2) of Article 105 of the Constitution. It must, however be made E
clear that the protection under sub-article (2) of Article 105 of the Constitution
must relate to the vote actually given and speech actually made in Parliament
by a Member of Parliament. In my view, the protection against proceedings
in court as envisaged under Sub-article (2) of Article 105 must necessarily be
interpreted broadly and not in a restricted manner. Therefore, an action
impugned in a court proceeding which has a nexus with the vote cast or F
speech made in Parliament must get the protection under sub- article (2) of
Article 105. Sub-Article (3) of Article 105 provides for other powers, privileges
and immunities to be enjoyed by a Member of Parliament. The framers of the
Constitution did not catalogue such powers, privileges and immunities but
provided in sub article (3) of Article 105 that until such privileges are defined G
by the Parliament, a member of Parliament will enjoy such powers, privileges
and immunities which had been recognised to be existing for a member of
House of Commons at the commencement of the Constitution of India. As I
respectfully agree with the reasonings indicated in the judgment of the learned
brother Mr. Justice S.P. Bharucha that in the facts of the case, protection
under Article 105(3) of the Constitution is not attracted but protection under H
944 SUPREME COURT REPORTS [1998]2 S.C.R.

A Sub article (2) of Article I 05 is available only to those accused, who as
Members of Parliament had cast their votes in Parliament, I refrain from
indicating separate reasonings in support of such finding.

S.C. AGRA WAL, J. Whether by virtue of Article 105 of the Constitution
a Member of Parliament can claim immunity from prosecution on a charge of
B 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.

c Congress
In the General Elec:tion for the Tenth Lok Sabha held in I 99 I the
(I) party emerged as the single largest party and it formed the
Government with P.V. Narsimha Rao (hereinafter referred to as 'A-I] 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
Muk!iopadhyaya, a CPI(M) M.P. At that time the effective strength of the
D 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 thereafter put to vote. The motion
was defeated with 251 members voting in favour of the motion, while 265
E voting against it. On February 28, 1996, one Shri Ravindra Kumar ofRashtriya
Mukti Morcha filed a complaint dated February I, 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
F 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. I. I 0 crores was handed over by the
aforementioned persons, except A-15, to Suraj Manda! (hereinafter referred to
as 'A-3). On the basis of the said complain the CBI registered four cases
G under Section 13(2) read with Section 13{l)(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 Shallendra Mahto (hereinafter referred to as 'A-6'), ~
Members of Parliament belonging tp the Jharkhand Mukti Morcha party (for
short 'JMM'). Subsequently in pursuance of the order dated May 24, 1996
H passed by the Delhi High Court in Civil Writ Petition No. 23/96 another case
I
P V. NARASIMHA RAO v. STATE(CBI/SPE) [S.C. AGRAW AL, J.] 945
was registered on June 11, 1996 against A-1, A-2, A-3, A-4, A-5, A-6, A-14, A
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, I 996 and January 22, I 997 in the court
of Special Judge, New DelhL 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- B
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 C
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 agains 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 !PC and D
Sections 7, 12, 13(2) read with Section 13(I)(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 E
referred to as 'A-11 '), D.K. Audikesavulu (hereinafter 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 F
committed the offences punishable under Section 120-B !PC and Section 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 G
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 H
946 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A 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 (l} Government still required the support of some more
MPs and that with this objective the Congress (I} led by A-I was making
efforts to win the support of some other MPs including MPs belonging to
B 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-I 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 pa!d bribes to A-15 and the seven MPs of the
C 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 Section 7, 12, 13(2) read with Section 13(1 )( d)(iii) of the
1988 Act and substantive offonces thereunder.

An application was submitted by A-6 (Shailendra Mahto) under Section
D 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 ·
E 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. In so far as A-1, A-2, A-7 and A-8' to
F 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
.:>ection 7, 12, 13(2), read with Section 13(l)(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 to A-5 and A-15 to A-21 are concerned, the Special
G Judge held that there is sufficient evidence on record to justify framing of
charges under Section 120-B !PC read with Section 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(l)(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
H by accused Nos. A-3 to A-5.
I
P.V. NARASIMHA RAO v. STA TE (CBI/SPE) [S.C. AGRAWAL. J.) 947

Before the Special Judge, an objection was raised on behalf of the A
accused persons that the jurisdiction of the Court to try the case was barred
-,.. under Article I05(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
B
.... 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 c
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
D
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 E
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
case of L.K. Advani v. Central Bureau of Investigation wherein it has been
held that a Member of Parliament is a public servant under the 1988 Act. It F
- }- 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 G
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
Election in 1996 all 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 H
948 SUPREME COURT REPORTS [1998) 2 S.C.R.

A furthermore accused persons are sought to be tried for criminal conspiracy
under Section 120-B !PC 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
B 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
..
C 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 frsten any criminal liability
on the accused persons as whatever allegedly happened was in
iD 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 '( --
l 05 of the Constitution.
(ii) Members of Lok Sabha hold no office and as such are not public
E 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 7.( c) of the 1988 Act and are thus taken to be public
F 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-IO, A-11 and A-13 there is nothing
G 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
t
-
H appellants.
P.Y. NARASIMHA RAO v. STATE (CBJ/SPE) [S.C. AGRA WAL. J.) 949

While dealing with the first contention based on clauses (2) and (3) of A
Article I05 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 B
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, 1997
were given by four members of Lok Sabha, namely, Sarva Shri Jaswant Singh,
lndrajit Gupta, Arjun Singh and Jagmeet Singh Brar against A-I and the four
members belonging to JMM (A-3 to A-6). The notices were forwarded to the C
said accused for comments ::nd after discussion on the said notices during
which members of all parties expressed their views the Speaker disallowed the
notke given by Shri Arjun Singh on March 11, 1996 and the notices of a
question of privilege given by Sarva Shri Jaswant Singh, lndrajit Gupta and
Jagmeet Singh Brar were disallowed by the 'Speaker on March 12, 1996. The D
second submission that a Member of Parliament is not a public servant under
-'r
Section 2(c) of the 1988 Act was rejected by the High Court on the view 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 E
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-I was a party to actual bribing of Members F
.• >- 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-I did cannot fall within the
ambit of the words "while acting of 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. G

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 Judge.
After hearing the arguments of the learned counsel, the following order was
passed by that bench on November 18, 1997 :- H
950 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A "Among other qi;estions, a substantial question of law as to the
interpretation of Article I 05 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 Hon'ble the Chief Justice
for necessary orders."
B
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
c to this Court for the reason that among other questions, a substantial
question oflaw as to the interpretation of Article I05 '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
D only deal with the questions relating to interpretation of Article I 05
of the Constitution anci 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."

E 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 Sections 120-B IPC read with Sections
7, 12 and 13(2) read with 13(l)(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
F offences under Sections 7 and Section 13(2) read with Section 13(l)(d) of the
1988 Act. A-3 to A-5 have also been charged with the offence under Section
193 !PC. 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
G Members of Parliament belonging to JMM and JD(A).

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

"7. Public servant taking gratification other than legal remuneration
H in respect of an official act.- Whoever, being, or expecting to be a
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [S.C.AGRAWAL. J.] 951

public servant, accepts or obtains or agrees to accept or attempts to A
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 officiai 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 B
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 C
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 D
~~ section.

(b) "Gratification." The word "gratification" is not restricted to
pecunniary gratifications or to gratifications estimable in money.
(c) "Legal remunerations." The words "legal remuneration" are not E
restricted to remuneration which a public servant can lawfully
demand, but include all remuneration which he is permitted oy
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
F
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 G
service the public servant has committed an offence under this
• section."

"12. Punishment for abetment of offences defined in Section 7 or I I.-
Whoever abets any offence punishable under Section 7 or Section 11
whether or not that offence is committed in consequence of that H
952 SUPREME COURT REPORTS [1998] 2 S.C.R.

A a_betment, 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." (·
"13. Criminal misconduct by a public servant.- (I) A public servant
is said to commit the offence of criminal misconduct,-
B
(a} xxx xxx xxx
....
(b) xxx xxx xxx .
(c} xxx xxx xxx
c (d} lfhe,-

(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
D. 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 (e} xxx xxx xxx

(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."
F
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. Narsimha Rao between July and August, 1993 at Delhi
and Bangalore were party to a criminal conspiracy and agreed to or
G
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. Thimmegow, Bhaj~n Lal,
JMM (Jharkhand Mukti Morcha) MPs. Suraj Mandal, Shibu Sopren,
Simon Marandi. Shilendra Mahto (Approver, since granted pardon on
H 8.4.97), Janta Dal (Ajit Group) MPs Ajit Singh, Ram Lakhan Singh,
P.V. NARA SIM HA RAO v. STATE (CBl/SPE) [S.C. AGRA WAL, J.] 953

Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Charan Das, Abhay A
Pratap Singh, Haji Ghulam Mohd, Khan and late G.C. Munda to defeat
the no confidence motion moved on 26.7.93 against the then Congress
(I) Government headed by you by illegal means viz., to offer or cause
to offer and pay gratification other than the legal remuneration to your
co-accused persons namely J.M.M. and Janta Dal (A) MPs named
above as a motive or reward for their helping in defeating the said no B
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 sections C
7, 12, 13(2) r/w 13(1 )(d) of the PC 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 :-
D
"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. Narsimha Rao, Capt. Satish
Sharma, Buta Singh, V. Rajeshwara Rao, H.M. Revanna, Ramlinga
Reddy, M. Veerapa Moiley, D.K. Audi Keshvalu, M. Thimmegowda, E
Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Shibu Soren, Simon
Marandi, Shilendra Mehto (Approver, since granted pardon on 8.4.97),
Janta Dal (Ajit Group) MPs, Ajit Singh, Ram Lakhan Singh Yadav, Ram
Sharan Yadav, Roshan Lal, Anadi Charan Dass, Abhey Partap Singh,
Haji Ghulam Mohd. Khan and late G.C Muna to defeat the no
confidence motion moved against the then Congress (I) Government F
headed by accused Shri P.V. Narsimha Rao on 26.7.93 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 Janta Dal (A) MPs as a motive or reward for defeating the
no confidence motion and in pursuance thereof above named accused G
persons other than JMM and Janta Dal (A) passed on several lacs of
rupees to you or your other co-accused namely JMM and Janta Dal
(A) MPs which amounts were accepted by you or your said co-
accused persons and they by you have committed an offence
punishable u/s 1208 r/w Sections 7, 12 13(2) r/w Section 13(l)(d) of
the P.C Act and within my cognizance." H
954 SUPREME COURT REPORTS (1998] 2 S.C.R.

A The charges under Section 7 and Section 13(2) read with Section 13(l)(d)of
the 1988 Act agains 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
B conspiracy demanded and accepted from your co-accused other than
JMM & JD(A) MPs mentioned above I'! 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 motion moved against the then Government of Congress
(I) headed by your co-·accused P.V. Narsimha Rao and thereby you
c 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
D Member of Parliament by corrupt or illegal means and by abusing your
position as a said pub.lie servant obtained for yourself or your other
co-accused i.e. JMM MPs named above the pecuniary 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."
E
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. Narsimha Rao in pursuance of the aforesaid
criminal conspiracy during the aforesaid period and at the aforesaid
F placed abetted the commission of offence punishable u/s 7 of P.C Act
by above referred JMM and Jania 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 :-
G
( 1) Does Article I 05 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
H for the reason that : (a) he is not a person who can be regarded as
P.V. NARASIMHA RAO v. STA TE(CBI/SPE) [S.C. AGRAWAL. J.] 955

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

/111mu11ity From Prosecutio11
B
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 I 05 which deals with the powers, privileges and immunities of
the Houses of Parliament and its members. Before we undertake this task, we
would briefly set out the prevailing state of law in the United Kingdom and C
other countries following the common law.

U11ited Ki11gdom

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 D
of Rights, 1689 whereby it was secured "that the freedom of speech and
-r
debates or proceedings in Parliament ought not to be impeached or questioned
in any court or place ~ut of Parliament" (Article 9). On May 2. 1695 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 E
matter whatsoever, depending or to be transacted in Parliament is a high crime
and misdemeanor 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 F
committee thereof, has been treated as a breach of privilege. [See : May's
Parliamentary Practice, 21" Edn. p. 128]. In its report submitted in July 1976
the Royal Commission on Standards of Conduct in Public Life (chaired by
Lord Salmon) has pointed out that "neither the statutory nor th.e common law
applies to the bribery or attempted bribery of a Member of Parliament in G
respect of his Parliamentary activities but "corrupt transactions involving a
Member of Parliament in respect of matters that hac! nothing to do with his
parliamentary activities would be caught by the ordinary criminal law" (page
98, para 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 Parliament's own H
956 SUPREME COURT REPORTS [I 998] 2 S.C.R.

A powers of investigation and punishment and the Commission was of the view
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
B to the complexity of most investigations into serious corruption special expertise
is necessary for this type of inquiry. (para 3 I 0, 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
c 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 recommend 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]
D
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
E 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
F
a charter for corruption. To my mind, the Bill of Rights, for which no
one has more respect thaa I have, has no more to do with the topic
which we are discussing that the Merchandise Marks Act. The crime
of corruption is complete when the bribe is offered or given or solicited
or taken."
G
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 the Criminal
H Law ( 1878) art. 118, and that there is nothing in the English authorities which
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [S.C. AGRAWAL, .l.] 957

compels to the conclusion that a Member of Parliament is not a public officer A
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).

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 B
for consideration before a criminal court (Buckley J.) in 1992 in R. v. Currie
& Ors. 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 C
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 ruled against the contention
and held :-

"That a Member of Parliament against whom there is a prime facie D
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 E
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 : May's
Parliamentary Practice, 22nd End, 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 :-
F
, "There is one area of conduct where a need already exists to clarify,
',. " and perhaps alter, the boundary between the courts and 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 G
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} H
958 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A "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
B bribe by a Member of Parliament. This could usefully be combined
with the consolidation of the statute law on bribery which Salmon
also recommended, whicn the government accepted, but which has
not been done. This might be a task which the Law Commission could
take forward." [para I04]
c 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
D the following four broad options :-
(I) 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;
E
(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
F House of Parliament.

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 misdemeanor at common law.
G (See: R. v. White, 13 SCR (NSW) 332).

The said decision in White was approved by the High Court of Australia
in R.. v. Boston & Ors., (1923) 33 CLR 386. Jn 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
H have unlawfully conspired together and with other persons that certain large
f
F

P.V. NARASIMHA RAO v. STA TE (CBl/SPE) [S.C. AGRA WAL. J.] 959

sums of money should be corruptly given to Walter James Boston to use his A
position to secure the inspection of, acquisition and the payment in 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 B
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 C
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 D
such · ;i agreement would not amount to a criminal offence, and that
consequently the informations is bad. Rejecting the said contention,. Knox
C.J. has observed :-

"In my opinion, the payment of money to, and the receipt of money E
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 F
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 Ministers. G
A member of Parliament cannoi 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 mt:mbet 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 H
960 SUPREME COURT REPORTS [1998]2 S.C.R.

A 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]

B Similarly, Issacs 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
c u!terior 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]

D 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
count 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
E 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
F position as member-the agreement would be an indictable conspiracy."
[p. 410].
A.. -
Gavan Duffy and Starke JJ., in their dissenting judgment, while holding
that the acts charged as intended to be done by the defendant Boston,
G 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 influen~e his vote in Parliament is guilty
H of a high crime and misdemeanour, and that an agreement to bring
P.V. NARASIMHA RAO v. ST ATE (CBI/SPE)[S.C. AGRAWAL, J.] 961

about such a state of things constitutes a criminal conspiracy; nor can A
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 member's 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." B
[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 C
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 D
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 Carney ·· Conflict of Interest : A
Commonwealth Sflldy of Members of Parliament. p. 124]. E
CANADA : In the case of R. v. Bunting, ( 1884-5) 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 F
Parliamentary business and is nJt 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 CJ. held:-

"It is to my mind a proposition very clear that this Court has jurisdiction
G
overthe 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 H
962 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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 :-

B "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]
...
O'Connor J, in his dissenting judgment, held that the bribe of a Member of
C Parliament, in a matter concerning Parliament or Parliamentary business, is not
an indictable offence at common law, and has not been made so by any
statute.

Section 108 of the Criminal Code in Canada renders it an offence for a
bribe be offered to or accepted by a provincial or federal member, while in
to
D 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].

E Other Commonwealth Countries : After examining the anti-corruption
measures in the various Commonwealth countries, Gerrard Carney has
concluded :-

"Most countries treat corruption and bribery by Members of Parliament
as a criminal oftence rather than as a breach of privilege."
F [See : Gerard Carney : Conflict of Interest : A Commonwealth Study
of Members of Parliament, p 123].

United States: Article I (6) of the US Constitution contains the 'Speech
or Debate Clause' which provides that "for any speech or debate in either
G House, they (Members of the Congress) shall not be questioned in any other
place". In I 853 the Congress, hy 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 I 862 the Congress
enacted another statute to penalise legislators who received money for votes
H or influence in any matter pending before Congress and in 1864 Conflict of
P.V. NARASIMHA RAO v. STATE (CBJ/SPE) [S.C. AGRA WAL. J.] 963

Interest statutes barred Congressmen from receiving compensation for their A
services before any agency. The Conflict of Interest Statutes were revised in
" "< 1962 and are contained in 18 U.S.C.(1964). [See : Note, The Bribed
Congressmen's Immunity from Prosecution, (1965-66) 75 Yale l.J. 335, at p.
341].

A distinction is, however, made between the conduct of a Member B
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 Statedv. Johnson, 15 L Ed 2d 681, at p. 684]. In Burton C
v. United States, 202 US 344, the US Supreme Court upheld the conviction
of a Senator who had been bribed in order to get a mail fraud indictment
quashed under the rationale that Burton's 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, D
Johnson, United State v. Brewster, 33 L Ed 2d 507, and United States v.
Helstoski, 61 L Ed 2d 12.

Jn Johnson a former US Congressman, named Johnson, and three co-
defendants were found guilty of conspiracy consisting of an agreement among E
Johnson and another Congressman and two other co-defendants who were
connected with a ~aryland saving 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 F
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 ~eceived
substantial sums in the form of campaign contribution and legal fees. Harlan G
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 on the floor of the House violated 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 H
964 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A motive for performing the legislative acts being enquired into in a criminal
prosecution.

In Brewster a former US Senator, named Brewster, had been charged
with accepting bribes and the allegation was that while he was a Senator an-
d a member of the Senate Committee on Post and Civil Service he received
B 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
C 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 CJ., 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
D actual performance of legislative acts and it does not protect them from other
activities they undertake that are political, rather than legislative, in nature
and that taking a bribe for the purpose of having one's 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
E ~cepting bribes. Brennan and White JJ. Uoined 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
F 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
G interpretation, an act performed as a part of or even incidental to the
role of a legislator." [p. 526]
In Helstoski a former member of the House of Representatives, named
Heistoski, was prosecuted for accepting money for promising to introduce
and for introducing private bills which would suspend the application of the
H immigration laws so as to allow the aliens to remain in the country. Helstoski
P. V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL. J.] 965

moved to dismiss the indictment in the District Court contending that the A
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 CJ. has held that references to past
B
.,,.. 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.

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.
c
Offering of a bribe or payment to a Member of Parliament influence 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 & SL. Shakdher : Practice D
....,.. and Procedure of Parliament 4th Edn., at p. 254]. As early as in 1951 an ad
hoc Committee of Parliament was appointed to investigate the conduct and
activities ofa 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
E
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 F
-·A 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
G
,,. 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 & Shakdher at pp. 284, 285]. H
966 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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
B 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 arid 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 & Shakdher at pp. 254. 255].
c 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

D
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 Article l 05 of the Constitution. The said Article, in the original form, read
-
as follows :-

"105. Powers, Privileges, etc. of the House of Parliament and pf the
members and committees thereof- (I) Subject to the provisions of this
E Clonstitution 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 in respect
F 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
G 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 (I), (2), and (3) shall apply in relation
H t<i persons who by virtue of this Constitution have the right to speak
P.V. NARASIMHARAOv. STATE(CBl/SPE)[S.C. AGRAWAL, J.] 967
in, and otherwise to take part in the proceedings of, a House of A
Parliament or any committee thereof as they aprly in relation to
members of the Parliament."

By Constitution (Forty-fourth Amendment) Act, 1978 clause (3) was replaced
by the following clause :-
B
"(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 (Forty-fourth Amendment) Act, 1978." C
Clause (I) 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 of Parliament". The words
"subject to the provisions of the Constitution" have been construed to mean D
subject to the provisions of the Constitution which regulate the procedure of
Parliament, viz., Article 118 and 121. [See : Pandit MS.M Sharma".· ShH Sri
Krishna Sinha & Ors., [ 1959] Supp. 1 SCR 806, at 856, and Special Reference
No. 1 of 1964, also known as the Legislative Privileges case, (1965] I SCR
413, at p. 441]. The freedom of speech that is available to Members of
Parliament under Article 105(1) is wider in amplitude than the right to freedom E
of sneech and expression guaranteed under Article 19(1 )(a) since the freedom
of speech under Article 105(1) is not subject to the limitations contained in
Article 19(2).

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 F
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 G
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 (I) of Article 105 is totally absolute and unfettered. (See : legislative
Privileges Case pp. 441, 442]. H
968 SUPREME COURT REPORTS (1998] 2 S.C.R.

A Having secured the freedom of speech in Parliament to the members
under clauses (I) and (2), the Constitution, in clause (3) of Article I 05, 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,
B 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 provision was on the
C same lines as the provisions contained in Section 49 of the Australian
Constitution and Section 18 of the Canadian Cons!itution. 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.
D
~ Clause (4) of Article I05 makes the privileges and immunities secured
under ciauses ( 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
E in relation to Members of Parliament.

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 I 05,
namely, to secure full freedom for a Member of Parliament while participating
F 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
G that the immunity from liability that has been conferred on a Member of
Parliament under clause (2) of Article I05 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
H acceptance by a Member of Parliament of bribe in connection with his making
P.V. NARASIMHA RAO v. STATE (CBI/SPE) (S.C. AGRAWAL, J.] 969

a speech or giving the vote would not constitute a criminal offence and, A
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 120B JPC
nor the charges in respect of the substantive offences under the 1988 Act can B
be sustained against the appellants. Strong reliance has been placed on the
decision of the Court of Queen's 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 and on the dissenting judgments of Brennan J. and White J. in
Brewster.

The learned Attorney General, on the other hand, has urged that the
c
immunity granted under clause (2) of Article I 05 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 hereby entered into a conspiracy to receive bribe for the purpose of D
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 CJ.) in Brewster, the Canadian decision in Bunting and
the Australian decisions in White and Boston and the ruling of Buckley J. in
R. V. Currie & Ors.
E
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 and the other decision in which it has been considered.

In Ex parte Wason infoonation had been laid by Wason before the F
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 G
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 faleshood 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 applicant's recognizance on H
970 SUPREME COURT REPORTS [1998] 2 S.C.R.

A the ground that no indictable offence was disclosed by the information. The
Court of Queen's Bench upheld the said order of the magistrate and refused
to grant the rule sought by the applicant. Cockburn CJ., after referring to the
information which was placed before the magistrate, said :-

"Now inasmuch as these statements were alleged to have been for
B 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
c 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
D 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 makes these persons guilty of it
amenable to the criminal law.," [p. 576] [emphasis supplied]
E
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
F 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
makiag them. l entirely concur in thinking that the information did
only charge an agreement to make statements in the House of Lords,
G 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
H statements in the house. I am clearly of opinion that we ought not to
P. V. NARA SIM HA RAO v. STA TE (CBl/SPE) [S.C. AGRAWAL, J.] 971

allow it to be doubted for a moment that the motives or intentions of A
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 CJ., with whom Blackburn J. has concurred,
show that the substance of the information laid by Wason was that the B
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 mad~
the foundation of the criminal proceeding. 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 C
based on that Article. It has been so understood in later judgments. (See :
R. V. Currie & Ors.].

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 D
the House".

In Johnson, 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 E
to accept a bribe, Harlan J. has observed :-

"Although histori1.,ally 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 F
framed in the broadest terms." [PP. 689, 690]

In order to show the broader thrust of the privilege reference was made
by the learned Judge to the decision in Ex parte Wason and the observations
of Cockburn CJ. and Lush J. have been quoted. The contention that the
Speech or Debate Clause was not violated because the gravamen of the count G
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 lim}ted to prosecutions involving H
972 SUPREME COURT REPORTS [ 1998) 2 S.C.R.

A 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 r <
the legislative aces of the defendant member of Congress or his motives
for performing them." [pp. 690, 691)

B "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]

C In Brewster Brennan J. and White J. in their dissenting judgments, have
referred to the earlier judgment in Johnson 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
D prosecution". [p. 533]. Burger CJ. 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 Government's case does not rely on legislative acts or the
E 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]
F
After pointing out that the history of the privileges in England is by no means
free from grave abuses by legislators, Burger CJ. 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
G the sweeping safeguards. In order to preserve other values, they
wrote the privilege so that it tolerate 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]

H The learned Chief Justice took note of the fact that "Congress is ill-equipped
'-I -
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [S.C. AGRAWAL, l.] 973
to investigate, try, and punish its Members for a wide range of behaviour that A
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, LR 4 QB 573 (1869),
are inapt." [p. 521]
B
~.
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 c
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 retried on
the conspiracy-to-defraud count, so long as evidence concerning his D
speech on the House floor was not admitted. The Court's opinion
plainly implies that had the Government chosen to retry Johnson on
that count, he could not have obtained immunity from prosecutions
by asserting that the matter being inquired into was related to the
motivation for his House speech." [p. 527] E
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] F
-+ The learned Judge then refers to Johnson and says :-

"I find if 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]. G
But in Helstoski White J. was a party to the majority judgment delivered by
r
- Burger CJ. wherein it was held :-

"Promises by a member to perform an act in future are not legislative
acts". [p. 23] H
974 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A "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].

B In Bunting Wilson CJ., 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 of 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, nor necessarily illegal, by
C 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
D 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.

E 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 parliament". [p. 554]

In R. V. Currie & Ors. Buckley J. has referred to the observations of Wilson
F CJ. 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.

We may now examine whf:ther the decision in Ex parte Wason has any
G bearing on the interpretation of Article I05(2). Clauses (I) and (2) of Article
105 are interlinked, while clause (I) secures to the Members freedom of
speech in Parliament, clause (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
H speech is of the utmost importance and a full and free debate is of the essence
P.V. NARASIMHA RAO v. ST ATE (CBI/SPE) [S.c;. AGRAW AL, J.] 975

of Parliamentary democracy. In England this freedom of speech in Parliament A
is secured by Article 9 of the Bi II of Rights. Though clause (2) Article I 05
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 B
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 C
of Scientology of California v. Johnson Smith) 1972 (I) 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 witness's 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- D
examination even if the suggestion was made that the evidence given to the
-r 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.
E
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 the decision of Hunt J. in R. v. Murphy (supra), has said:-

"Finally, Hunt J. based himself on a narrow construction of art 9,
derived from the historical context in which it was originally enacted. F
He correctly identified the mischief sought to be remedied in 1688 as
·-~ being, inter alia, the assertion by the King's courts of a rights 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 art
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 G
Parliament. This view discounts the basic concept underlying art 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 H
976 SUPREME COURT REPORTS (1998) 2 S.C.R.

A 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
B is designed to protect." [p. 415)

The protection given under clause (2) of Article I 05 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
..
C 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 I 05 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
D 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 I 05. Ex parte Wason (supra), which holds that the
information laid by Wason did not disclose any indictable offence, proceeds
E on the basis 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. The
position under clause (2) of Article I05 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
F clause only gives protection to the member who has made the speech or has
given the vote from liability in any proceeding in a court of law. Therefore,
on the basis on 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
G the No Confidence Motion and for that reason the charge of conspiracy and
abetment must also fall. On the basis of Article I 05(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 l 05(2) will, however,
H depend on the interpretation of the provisions of Article l 05(2).
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL. J.) 977
As indicated earlier, Article I05(2) is in two parts. In these appeals we A
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 B
in_.any fourt, 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 of in any committee thereof.

Shri Rao has submitted that having regard to the object underlying the
provision, viz., to secure the freedom of speech in Parliament to the members, C
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 & Ors.,
v. N. Sanjiva Reedy & Ors., [1971] I SCR 612, 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 in Parliament or any committee thereof and would D
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 The State ofTripura v. The Province of East Bengal, [1951] 2 E
SCR I; TolaramRe/umalandAnr., v. TheStateofBombay, [1955] I SCR 158;
and S.S. light Railway Co. ltd. v. Upper Doab Sugar Mills Ltd. & Anr..
[ 1960] 2 SCR 926, and the decision in Paterson v. Chadwick, 1974 (2) All ER
772.

The learned Attorney General has, on the other hand, urged that ·F
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 G
is that the expression 'in respect of in clause (2) of Article I05 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 H
978 SUPREME COURT REPORTS [1998] 2 S.C.R.

A of in Article I05(2) must be construed to mean 'for'. Reliance has been
placed by him on the decision of this Court in State of Madras v. /l,.f/s Swastik
Tobacco FactulJ', Vedaranyam, [ 1966] 3 SCR 79.

In Tej Kiran Jain the appellants had filed a suit for damages in respect
of defamatory statements alleged to have been made by certain members of
B 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 I05(2) of the Constitution. Before this Court it was contended on ~
behalf of the plaintiffs that the immunity under Article I05(2) was granted to
C 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
D '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 compete but is as it should be. It is of the
E essence of parliamentary system of Government that people's
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
F matter and should really have none." [p. 615] •

These observations in Tej Kiran Jain emphasise the object underlying the
immunity that has been conferred under Article I 05(2), namely, that the
people's representatives should be free to exercise their functions without
fear of legal consequences. Borrowing the words of Burger CJ. it can be said
G 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 Parliamen.:_.
H as "super citizens, immune from criminal responsibility". (Burger CJ.
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL J.] 979

Brewster). It would indeed be ironic if a claim for immunity from prosecution A
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 B
be seeking a licence to indulge in such corrupt conduct.

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 C
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
"may's Parliamentmy Practice, 21st Edn. pp. 103, l09 and I I I]. The Houses
of Parliament in India cannot claim a higher power. The Salmon Commission D
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 E
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 3 I OJ

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 F
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 of Madras v. Mis Swastik Tabacco Factory, Vendarayam
(supra) the expression has 'received a wide interpretation, having regard to
the object of the provisions and the setting in which the said words appeared'. G
The expression 'in respect of in Article 105(2) has, therefore, to be construed
kewing in view the object of Article 105(2) and the setting in which the
expression appears in that provision.

As mentioned earlier, the object of the immunity conferred under Article
I 05(2) is to ensure the independence of the individual legislators. Such H
980 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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 I05(2) which would enable a Member of Parliament to
claim immunity from prosecution in a criminal court for an offence of bribery
B in connection with anything said by him or a vote given by him in Parliament
or any committee thereof and thereby place such Membe,·s 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 basic structure of the Constitution. It is settled law that in
interpreting the constitutional provisions the court should adopt a construction
C 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,
D 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
E 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 < 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
F 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
G 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
H for not speaking or for not giving his vote on a matter under consideration
P.V. NARASIMHA RAO v. STATE (CBIISPE) [S.C. AGRAWAL J.] 981

before the House but he would enjoy immunity from prosecution for such a 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 B
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 C
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 D
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 E
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 F
given in Parliament.
-+ An indication about the liability with regard to which immunity is
granted by Article 105(2) is given in the Legislative Privileges Case wherein
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 G
been said :-

"Having conferred freedom of speech on the legislators, clause (2)
emphasises the fact that the said freedom is intended to be abosolute
and unfettered. Similar freedom is guaranteed to the legislators in
respect of the votes they may be given in the Legislature or any H
982 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A 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, ifthe legislator by
his speech or vote, is alleged to have violated any of the fundamental
rights guaranteed by Part Ill of the Constitution in the Legislative
Assembly, he would not be answerable for the said contravention in
B 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." [p. 441]
..
C 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, 26. L.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
D 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.

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
E 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
considerations 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
F
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
G providing the offence of bribery all that is required to be established is chat
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
H these terms :-
P.V. NARASIMHA RAO v. STA TE (CBl/SPE) [S.C. AGRA WAL. J.j 983
"120-A. Definition of criminal conspiracy.- When two or more persons A
agree to do, or cause to be done,-

(I) an illegal act, or

(2) an act which is not illegal by illegal mean, such an agreement is
designated a criminal conspiracy : B
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.
c
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. Jn view of the proviso D
to Section l 20A !PC 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 E
the act that was agreed to be done in Iieu of payment of money was done
or not.

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 F
vote by the Member and the said liability cannot, therefore, be regarded as
a liability 'in respect of anything said or any vote given' in Parliament. We
are, therefore, of the opinion that the protection granted under Article I05(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 G
7, Section 13(2) read with Section 13(l)(d) and Section 12 of the 1988 Act as
well as the charge of criminal conspiracy under Section l 20B IPC read with
+ Section 7 and Section 13(2) read with Section 13(l)(d) of the 1988 Act.

Sh-i 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 H
984 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

- A that si1ce no law has been made by Parliament defining the powers, privileges
and immunities of each House of Parliament, the powers, privileges and
immunities enjoyed by Members of Parliament in 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
B Commons in the United Kingdom enjoyed an immunity from prosecution for
bribery in connection wiih the exercise of his functions as such Member, Shri
Rao has invited our attention to the following statement in May's
Parliamentary Practice :-

'The acceptance by any Member of either House of a bribe to influence
c 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 of thing submitted or intended to be submitted to
the House or any committee thereof is a breach of privilege." [18th
Edn.p. 138]
D
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
E 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 e.dequate 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 May's Parliamentary Practice:-
F "Jn 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
though a proceeding at law necessary, either as a substitute for, or in
addition to, its own proceeding, the Attorney General has been directed
G to prosecute the offender." [18th Edn. p.127]

Jn the Legislative Privileges Case, 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
H which are claimed by the House must be shown to have subsisted at
P.V. NARASIMHA RAO v. STATE (CBl/SPE)[S.C. AGRAWAL. J.] 985

the commencement of the Constitution, i.e., on January 26, 1950. It is A
well known that out ofa 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
B
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 c
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 subsisted in the
House of Commons at the relevant time." [pp. 442, 443] [emphasis
supplied]
D
The learned Attorney General has submitted that till the decision in R. v.
,..... Currie & Ors. 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
E
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 F
under clause (3) of Article 105. The learned Attorney General has placed
-t-
reliance on the following observations of Stephen J. in Bradiaugh v. Gossett
(1884) 12QBD271:

"I know of no authority for the proposition that an ordinary crime
committed in the House of Commons would be withdrawn from the
G
...
ordinary course of criminal justice."
'-
1
The learned Attorney General has also placed reliance on the following
' statement of law in Hals bury 's Laws of England, Vol AA(l), Para 3 7 at page
40, wherein it is stated :- H
986 SUPRE\1E COURT REPORTS (1998] 2 S.C.R.

A "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 (I) to the said para it is stated that :-
B
"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)."
c
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
D 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 ·-...
Canada where bribery of a legislator was treated as an offence at common law
the courts in White, Boston and Bunting has held that the legislator could be
E 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
F 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.
G 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 i
submission of Shri Thakur is that during the course of the election campaign
a candidate receives financial contributions and also makes promises to the
H electorate and that if the immunity under Article 105(2) is not available he
P.V. NARASIMlL\ RAO v. STA TE iCBl/SPE)[S.C. AGRA WAL, .l.] 987
would be liable to be prosecuted if, after being elected as member of Parliament. A
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.
y' in Brewster 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 CJ. has, however, pointed out that
B
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 I 00 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 c
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 D
legislator, not simply for his own sake, but to preserve the
independence and thereby the integrity of the legislative process. But
y
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 E
power to punish bribery of Members of Congress is unlikely to enhance
legislative independence." [p. 525]
In the earlier part of the juclgment 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 F
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 G
of Shri Thakur.

;... 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
p1 osecution on the charges that have been levelled against them. H
988 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Whether a 'Public Sen'w11'

We may now come to the question whether a Member of Parliament is
a public servant for the purposes 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, 1'147 [hereinafter referred to as 'the 194 7
B Act']. In Section 2 of the 1947 Act it was provided that for the purposes 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:
c
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
D
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
E 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;
F
Fifth.- Every jurymen, assessor, or member of a panchayat assisting
a Court of Justice or public servant;
---
Sixth.- !::very arbitrator or other person to whom any cause or matter
has been referred for decision or report by any Court of Justice, or
G 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 1
H officer, to prevent offences, to give information of offences, to bring
P.V. NARASIMHA RAO v. STA TE (CBl/SPE) [S.C. AGRAWAL, J.] 989
offenders to justice, or to protect the public health, safety or A
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 B
-.; matter affecting the pecuniary interests of the Government, or to make,
authenticate or keep any document relating to the pecuniary interests
'Y
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, c
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, atuhenticate or keep any document for
the ascertaining of the rights of the people of any village, town or
district;
D
~ 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-
E
(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 F
-~ company as defined in Section 617 of the Companies Act, 1956
(I of 1956)."

In R.S.Nayak v. A.R. Antulay, (1984] 2 SCR 495, 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 G
of the 1947 Act. The said question was considered in the light of clauses (3),
(7) and (12)(a) of Section 21 !PC. 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 H
990 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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
B 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 v
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
C piloting in the Lok Sabha the Bi'! 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 !PC and that the amendments introduced in Section 21 !PC by the
Amendment Act of 1964 did not bring about any change. While dealing with
clause (I 2)(a) of Section 21 !PC, as amended by the Amendment Act of 1964,
D 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
E 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,
F 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 M.L.A. is not
G 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
H the Constitution and not by the Executive" [p. 548]
P V NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL, J.] 991

The Court also considered the question whether a Member of the Legislative A
Assembly is a public servant with reference to clauses (3) and (7) of Section

·' 21 !PC and held that a member of the Legislative Assembly did not fall within
the ambit of the said clauses.

In the 1988 Act the expression 'public servant' has been defined m
Section 2(c) which read as follows :- B
"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; C
(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 D
Act, I 956 (I 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;
E
(v) any person authorised by a court of justice to perform any duty,
in connection with the administration of justice, including a
liquidator, receiver of 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 F
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 G
authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer
of a registered co-operative society engaged in agriculture,
industry, trade or banking, receiving or having received any
financial aid fro;n the Central Government or a State Government H
992 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A 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 r•
as defined in section 617 of the Compnies Act, 1956 (I of 1956);
(x) any person who is a chairman, member or employee of any
B Service Commission or Board, by whatever name called, or a
member of any selection commission 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 Vice-Chairman or men;~er of any governing
C 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;
D (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 I.- Persons falling under any of the above sub-clauses
E
are public sevants, 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 defeat there may be
F in his right to hold that situation."

The expression "public duty" is defined in Section 2(b) in these terms:- ~·

"2(b) "public duty" means a duty in the discharge of which the State,
the public or the community at large has an interest;

G Explanation.- In this clause "State" includes 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 (I of
1956);" .

H The clause relevant for our purpose is clause (viii) whereunder "any
P.V. NARASIMHA RAO v. STATE(CBl/SPE)[S.C. AGRAWAL, J.] 993

person who holds an office by virtue of which he is authorised or required A
to perform any public duty" is to be treated as a public servant under the 1988
Act. The said clause postulates that the person must (i) hold an office and
~" (ii) by virtue of that office (iii) he must be authorised or required to perform
(iv) a public duty.

On behalf of the appellants it has been urged that a Member of Parliament B
does not fall within the amibit of this clause because (I) he does not hold
an office; and (2) he is not authorised or required to perform any public duty
" by virtue of his office .
..,
We will first examine the question whether a Member of Parliament
holds an office. The word 'office' is normally understood to mean "a position c
to which certain duties are attached, esp. a place of trust, authority or service
under constituted authority". [See : Oxford Shorter English Dictionary, 3rd
Edn. p. 1362]. In McMillan v. Guest, (1942) AC 561, Lord Wright has said :-

"The word ·office' is of indefinite content. Its various meanings
cover four columns of the New English Dictionary, but I take as the
D
most relevant for purposes of this case the following : "A position or
y place to which certain duties are "attached, especially one of a more
or less public character."

In the same case Lord Atkin gave the following meaning :-
E
"an office or employment which was 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."

In Statesman (Private) Ltd v. HR. Deb & Ors., [1968] (3 SCR 614, and
F
Mahadeo v. Shantibhai & Ors., [1969] 2 SCR 422, this Court has adopted the
meaning given by Lord Wright when it said :-

"An office means no more than a position to which certain duties are
attached." G
In Kanta Kathuria v. Manakchand Surana, [1970] 2 SCR 835, Sikri J,
(as the learned Chief Justice then was) speaking for the majority, while
t-
construing the words "holds any office of profit" in Article 19(l)(g), has said
that "there must be an office which exists independently of the holder of the
office". It was observed that there is no essential difference between the H
994 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A definitions given by Lord Wright and Lord Atkin.

In White the Supreme Court of New South Wales has held that a member ,....
of the State Legislature holds an office. That view has been affirmed by the
High Court of Australia in Boston. Isaacs & Rich, JJ. said :

B "A Member of Parliament is, therefore, in the highest sense, a servant
of the State; his duties are those appertaining to the position he fills,
a position of no transient or temporary existence, a position forming r

a recongnized place in the constitutional machinery of government. ...
Why, then, does he not hold an "office"? In R. V. White it was held,
as a matter of course, that he does. That decision is sound. "Office"
c is defined in the Oxford Dictionary, as including :- "4. A position or
place to which certain duties are attached, esp. one of a more or less
public charact<:r; a position of trust, authority, or service under
constituted authority." And "Officer" is defined (inter alia) as "2. One
who holds an office, post, or place. (a) One who holds a public, civil,
D or ecclesiastical office; ... a person authoritatively appointed or elected
to exercise some function pertaining to public life." Clearly a member
of Parliament is a "public officer" in a very real sense , for he has, in ,..
the words of Williams J in Faulkner v. Upper Boddington Overseers,
"duties to perform which would constitute in law an office". [p. 402]

E In Habibullah Khan v. State o/Orissa, (1993) Cr. L.J. 3604, the Orissa
High Court has held that a Member of the Legislative Assembly holds an
office and performs a public duty. The learned Judges have examined the
matter keeping in view the meaning given to the expression "office" by Lord
Wright as well as by Lord Atkin in McMillan v. Guest [supra]. Taking into
consideration the provisions of Articles 168, 170, 172 and 173 of the
F Constitution relating to Legislative Assembly of the State, the learned Judges
have held that the Member of the Legislative Assembly is created by the ·,c -
Constitution and that there is a distinction between the office and the holder
of the office ..

G Shri P.P. Rao has, however, pointed out that under the Constitution a
distinction has been made between an 'office' and a 'seat' and that while the
expression 'office' has been used in the Constitution in relation to various
constitutional authorities such as President, (Articles 56, 57, 59 and 62) Vice- -\
President, (Article 67) Speaker and Deputy Speaker of the Lok Sabha, (Article
93, 94, 95 and 96) Deputy Chairman of Rajya Sabha, (Article 90) Ministers,
H (Article 90) Judges of the Supreme Court (Article 124), Judges of the High
P.V. NARASIMHA RAO v. STATE(CBI/SPE) [S.C. AGRAWAL, J.] 995

Court (Article 217) and the Attorney General of India (Article 76) but insofar A
as a Member of Parliament and a Member of State Legislature is concerned
"'"' the expression used in 'seat' and not 'office' which shows that the Constitution
does not contemplate that a Member of Parliament or a Member of State
Legislature holds an Office. In this context Shri Rao has invited our attention
to Articles 84, 99 and 101 where the expression 'seat' has been used in
respect of Members of Parliament and to Articles 173 and 190 where the word
B
.. 'seat' has been used in respect of Members of State Legislatures .

' The learned Attorney General has, on the other hand, invited our
attention to Sections 12, 154, and 155 of the Representation fo the People Act,
1951 wherein the expression 'term of office' has been used in relation to a c
Member of the Council of State (Rajya Sabha) and to Section 156 and 157
wherein the said expression has been used in relation to a Member of the
Legislative Council of the State (Vidhan Parishad), The learned Attorney
General has also invited our attention to the provisons of The Salary,
Allowances and Pension of Members of Parliament Act, 1954 wherein the
expression 'term ofoffice', as defined in Section 2(e) covering members of the D
y Council of States as well as the House of the People, has been used in Section
3 (salaries and daily allowances) Section 4 (travelling allowances) Section 6(2)
(free transit by railway) Section 6-A (2) (free transit by steamer) and Section
8A(I) (Pension).
E
It would thus c;ppear that although in the Constitution the word 'office'
has not been used in the provisions relating to Members of Parliament and
members of State Legislature but in other parliamentary enactment relating to
members of Parliament the word 'office' has been used. Having regard to the
provisions of the Contitution and the Representation of the People Act, 1951
as well as the Salary, Allowances and Pension of Members of Parliament Act, F
-~ 1954 and the meaning that has been given to the expressiion 'office' in the
decisions of this Court, we are of the view that Membership of Parliament is
an 'office' inasmuch as it is a position carrying certain responsibilities which
are of a public character and it has an existence independent of the holder
of the office. It must, therefore, be held that the Member of Parliament holds
an 'office'.
G
,._
The next question is whether a Member of Parliament is authorised or
---- required to perform any public duty by virtue of his office. As mentioned
earlier, in R.S. Nayak v. A.R. Antulay this Court has said that though a
member of the State Legislature is not performing any public duty either H
996 SUPREME COURT REPORTS [1998] 2 S.C.R.

A directed by the Government or for the Government but he no doubt performs
public duties cast on him by the Constitution and by his electorate and he
discharges constitutional obligations for which he is remunerated fees under ,. ...
the Constitution.

In the 1988 Act the expression 'public duty' has been defined in Section
B 2(b) to mean " duty in the dischrge of which the State, the public or the
community at large has an interest".

The Form of Oath or Affirmation which is required to be made by a
Member of Parliament (as prescribed in Third Schedule to the Constitution)
is in these terms :-
C
"I, A.B., having been elected (or nominated) a member of the Council
of States (or the House of the People) do swear in the name of God/
Solemnly affirm that I will bear true faith and allegiance to the
Constitution of India as by law established, that I will uphold the
sovereignty and integrity of India and that I will faithfully discharge
D
the duty upon which I am about to enter."

The words "faithfuJly discharge the duty upon which I am about to enter"
show that a Member of Parliament is required to discharge certain duties after
he is sworn in as a Member of Parliament. Under the Constitution the Union
E Executive is responsible to Parliament and Members of Parliament act as
watchdogs on the functioning of the Council of Ministers. In adition, a
Member of Parliament plays an important role in parliamentary proceedings,
including enactment of legislation, which is a sovereign function. The duties
discharged by him are such in which the State, the public and the community
at large have an interest and the said duties are, therefore, public duties. It
F can be said that a Member of Parliament is authorised and required by the
Constitution to perform these duties and the said duties are performed by him
by virtue of his office.

In Horne v. Barber, (1920) 27 CLR 494 at p. 500, Isaacs J. has said:-
G "When a man becomes a Member of Parliament, he undertakes high
public duties. Those duties are inseparable from the position : he
cannot retain the honour and divest himself of the duties. One of the
duties is that of watching on behalf of the general community the
conduct of the Executive, of criticizing it, and if necessary, of calling
--
H it to account in the constitutional way by censure from his place in
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL, J.) 997

Parliament - censure which, if sufficiently supported, means removal A
from office. That is the whole essence of responsible Government,
,,... which is the Keystone of our political system, and is the main
consititutional safeguard the community possesses." [p. 402]

In Boston while examining the nature of duties of a Member of Parliament,
Isaacs & Rich, JJ. have reiterated the above quoted observations in Horne
B
v. Erber and have said :-
"'
>ti
"The fundamental obligation of a member in relation to the Parliament
of which he .is a constituent unit still susbsists as essentially as at any
period of our history. That fundamental obligation which is the key c
to this case is the duty to serve and, in serving, to act with fidelity
and with a single- mindedness for the welfare of the community."'
(p. 400).

"Those duties are of a transcendent nature and involve the greatest
D
responsinbility, for they include the supreme power of moulding the
-r- laws to meet the necessities of the people, and the function of vigilantly
controlling and faithfully guarding the public finances." (p. 401 ).

We are, therefore, of the view that a Member of Parliament holds an
office and by virtue of such office he is required or authorised to perform E
duties and such duties are in the nature of public duties. A Member of
Parliament would, therefore, fall within the ambit of sub-clause (viii) of clause
(c) of Section 2 of the 1988 Act.

The learned counsel for the appellants have, however, urged that while F
enacting the 1988 Act Parliament did not intend to include Members of
-~
Parliament and Members of the State Legislatures within the ambit of the Act
and that the expression "public servant" as defined in Section 2(c) of the 1988
Act should be so construed as to exclude Members of Parliament and Members
of State Legislatures. The learned counsel have placed strong reliance on the
speeches of Shri P. Chaidambaram, the then Minister of State in the Ministry G
of Personnel, Public Grievances and Pensions and in the Ministry of Home

-· I"- Affairs during the course of debate on the Prevention of Corruption Bill, 1987
in the Lok Sabha as well as in the Rajya Sabha. Reliance has been placed on
the following excerpts from the speech of the Minister in the Lok Sabha on
May 7, 1987 and in the Rajya Sabha on May 11 and August 11, 1987 :- H
-,,._
998 SUPREME COURT REPORTS [1998] 2 S.C.R.

/\. Lok Sabha

"A question has been raised what is the position of a Member of
Parliament or a Member of a Legislative Assembly ? 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
B Antulay's case that a Member of the Legislative Assembly is not a
public servant within the meaning of Section 21 of the Indian Penal
Code.

I personally think that it is very difficult to say when an MLA or
an MP becomes a public servant. I believe that when an MP functions
c qua-MP perhaps he is not a public servant and, therefore, we are not
attempting a definition which will lead to difficulties. We think that
there could be situations when an MP of an MLA does certain thing
which are really not part of his duties as an MP or an MLA. We think
that an MP or an MLA could in certain circumstances hold an office
where he will be discharging certain public duties. These two situations
D are covered by this Act. If an MP or an MLA does certain acts not
qua-MP or qua-MLA, but as an individual, abusing his position, I am
not using the word 'Office' I think he will be covered like any other
individual under Sections 8, 9 and 12. When an MP or an MLA holds
an office, and by virtue of that office he has to discharge certain
E public duties, I think he will be covered under Section 2 clause (b)
read with Section 2 Clause (c) Sub- clause (viii). I think these two
situations are quite adequate to take care of defaulting Members of
Parliament and defaulting Members of t:1e Legislative Assemblies."

Rajya Sabha
F "Now I will reply to the best of my ability how an MP or an MLA
comes within the ambit of this Bill. I have tried to explain it in the Lok
Sabha and I will try to do so here within my limits and to the best of
my capacity. But if you are quoting my sppech, please quote the entire
paragraphs. Don't take one sentence and then para phrase, it and give
G your commentary on it. Read the whole paragraph, it is very clear. I
have said that an MP or an MLA will in my opinion, come within the
scope of this Bill in two situations ........... .

A law has to be made by Parliament. We make a law with certain
intentions. We use a certain language. In my view and in my best
--
H judgment and on the best advice that I have, this is how we think an
P.V. NARASIMHA RAO v. STATE (CBI/SPE) (S.C. AGRAWAL. J.] 999
MP or an MLA will be covered. This is all that we can say while we A
are making a law. We believe that our interpretation will be accepted
by the courts. If you find fault with our interpretation tell us where
we should improve the bill, tell us how we should imporve the language.
A law is a maner of interpretation. We are acting according to the legal
advice available to us.
B
A question was asked about the Members of Parliament and
Members of Legislative Assembly. Madam, under the law declared by
... the Supreme Court, a Member of Parliament or a Member of Legislative
Assembly per se is not a public servant. But there can be a number
of situations where an MP or an MLA holds another office and C
discharges other duties which will bring him under this Bill. If he holds
another office in a cooperative society, if he holds another office in
a public institution or if he discharges certain duties which will come
under the definition of public duty clearly, then he would be within
the definition of 'public servant' under this Bill. But these are matters
in which you cannot make on a prior assumption. One has to look into D
the facts of each case and then the couns wiil decide on the facts of
that case.

It has been urged that these excerpts from the speeches of the Minister
who has moved the Bill for consideration in both the Houses of Parliament
throws considerable light on the meaning of the expression 'public servant' E
as defined in Section 2( c) of the 1988 Act and that provisions of Section
2(c)(viii) of the 1988 Act should be given a construction which is in accord
with these statements of the Minister. Relying upon the decisions of this
Court in K.P. Verghese v. Income Tax Officer, [1982] I SCR 629, R.S. Nayak
v. A.R. ANTULAY (supra); State of Orissa v. Mahanadi Coal Fields, [1995] F
Supp. 2 SCC 686; and Narendra Kumar Maheshwari v. Union of lndiu, [ 1989]
3 SCR 43, Shri Rao has urged that the speech of the mover of the Bill can
be looked into for construing the provisions of the enactment. It has been
pointed out that in the recent decision in Pepper v. Hart, (I 993) I All ER 42,
the House of Lord has also departed from the earlier position taken by the
courts in England in this regard and that it has been held that the statement G
of the Minister who had moved the Bill in Parliament can be taken into
consideration for the purpose of interpreting the provisions of the enactment.

The view which prevailed earlier with the courts in England was that
references to Parliamentary material as an aid to statutory construction is not
permissible. The said exclusionary rule precluded the court from looking even H
1000 SUPREME COURT REPORTS [1998] 2 S.C.R.

A at reports made by Commissioners on which legislation was based. The
rigidity of the said rule was relaxed in later decisions so as to permit reports
of Commissioners, including Law Commissioners, and white papers to be
looked at for the purpose solely of ascertaining the mischief the statute is
intended to cure but not for the purpose of discovering the meaning of the
B words used by Parliament to effect such cure. Parliamentary debates were,
however, not looked at as an aid to construction. The rationale for the
exculsion of parliamentary debates is contained in the speech of Lord Reid
in Black-Clawson International ltd v. Papierworke Waldh-ofAschajfenburg,
1975 AC 591. The learned Lord Reid has said:-

"We often say that we are looking for the intention of Parliament, but
c that is not quite accurate. We are seeking the meaning of the words
which Parliament used. We are seeking not what Parliament meant but
the true meaning of what they said."

"The questions which give rise to debate are rarely those which later
have to be decided by the courts. One might take the views of the
D
promoters ofa Bill as an indication of the intention of Parliament but
any view the promoters may have had about questions which later
come before the court will not often appear in Hansard and often
those questions have never occurred to the promoters. At best we
might get material from which a more or less dubious inference might
E be drawn as to what the promoters intended or would have intended
if they had thought about the matter, and it would, I think, generally
be dangerous to attach weight to what some other members of either
House may have said" [pp. 613-615]

The decision in Pepper v. Hart makes an advance. In that case Lord
F Browne- Wilkisnon, who delivered the main judgment, has said :-

" ......... In my judgment, subject to the questions of the privileges of
the House of Commons, reference to parliamentary material should be
permitted as an aid to the construction of legislation which is ambiguous
or obscure or the literal meaning of which leads to an absurdity. Even
in such cases references in court to parliamentary material should only
be permitted where such material clearly discloses the mischief aimed
at or the legislative intention lying behind the ambiguous or obscure
words. In the case of statements made in Parliament, as at present
advised I cannot foresee that any statement other than the statement
H of the minister or other promoter of the Bill is likely to meet these
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL. J.]1001

criteria." [p.64] A
" ........ Given the purposive approach to construction now adopted by
the courts in order to give effect to the true intentions of the legislature,
the fine distinctions between looking for the mischief and looking for
the intention in using words to provide the remedy are technical and
inappropriate. Clear and unambiguous statements made by ministers B
in Parliament are as much the background to the enactment of legislation
as white papers and parliamentary reports." [p. 65]

In the earlier decisions this court also adopted the rule of exclusion
followed by the English courts. Parliamentary debates on a Bill were held to C
be inadmissible for construction of the Act [See : Aswini Kumar Ghose v.
Arabinda Bose, [1953] SCR 1 at p. 29. But in later judgments this court has
referred to the speech of the Minister while introducing the Bill in the
Legislature for the purpose of ascertaining the mischief sought to be remedied
by the legislation and the object and purpose for which the legislation is
enacted. In K.P. Verghese v. Income Tax Officer, [I 982] l SCR 629, Bhagwati, D
J. (as the learned Chief Justice then was) has siad :

"Now it is true that the speeches made by the Members of the
Legislatures on the floor of the House when a Bill for enacting a
statutory provision is being debated are inadimissible for the purpose E
of interpreting the statutory provision but the speech made by the
Mover of the Bill explaining the reason for the introduction of the Bill
can certainly be referred to for the purpose of ascertaining the mischief
sought to be remedied by the legislation and the object and purpose
for which the legislation is enacted." (p. 645]
F
The other decisions of this Court cited by Shri Rao do not lay down
any different principle. On the other hand in Sanjeev Coke Manufacturing
Co. v. Bharat Coking Coal Ltd., (1983] 1 SCR 1000, this court has laid down:-

"No one may speak for the Parliament and Parliament is never before
the Court. After Parliament has said what it intends to say, only the G
Court may say what the Parliament meant to say. None else. Once a
statute leaves Parliament House, the Court's is the only authentic
voice which may echo (interpret) the Parliament. This the court will do
with reference to the language of the statute and other permissible
aids." [p. 1029]
H
1002 SUPREME COURT REPORTS (1998] 2 S.C.R.

A It would thus be seen that as per the decisions of this Court the
statement of the Minister who had moved the Bill in Parliament can be looked
at to ascertain mischief sought to be remedied by the legislation and the
object and purpose for "1hich the legislation is enacted. The statement of the
Minister who had moved the Bill in Parliament is not taken into account for
B the purpose of interpreting the provisons of the enactment. The decision in
Pepper v. Hart permits reference to the statement of the minister or other
promoter of the Bill as an aid to construction of legislation which is ambiguous
or obscure or the literal meaning of which leads to an absurdity provided the
statement relied upon clearly discloses the mischief aimed at or the legislative
intention lying behind the ambiguous or obscure words and that such a
C statement of the minister must be clear and unambiguous. This rule of
construction laid in Pepper v. Hart has no application in the present case
because sub-clause (viii) of Section 2(c) of the 1988 Act cannot be said to
be ambiguous or obscure nor can it be said that the literal meaning of the said
clause leads to any absurdity.

D Moreover, the excerpts from the statements of the Minister on which
reliance has been placed by the learned counsel of the appellants cannot be
regarded as clear and unambiguous on the question whether a Member of
Parliament or the Member of the State Legislature would fall within the ambit
of 'public servant' under the 1988 Act because according to the statements
E of the Minister a Member of Parliament and a Member of the State legislature
would be a 'public servant' under Section 2(c)(viii) of the Act in certain
situations. The statemnt of the Minister does not clearly indicate those
situations. The provisions of the 1988 Act also do not give any indication
about the situations in which a Member of Parliament or a Member of the
State Legislature would be treated as a public servant and the situations in
F which he will not be treated as a public servant. Shri Kapil Sibal has submitted
that what the Minister meant was that if a Member of Parliament or a Member
of the State Legislature is given some other assignment, e.g. memebership of
a delegation, then in connection with that assignment his position would be
that of a public servant under the 1988 Act. The language used in Section
G 2(c)(viii) does not lend support to such a limited construction of the said
provision.

Having regard to the object of the 1988 Act as indicated in the Statement
of Objects and Reasons, namely, to widen the scope of the definition of the
expression "public servant", which is sought to be achieved by introducing
H the definition of "public duty" in Section 2(b) and the definition of 'public
P.V. NARASIMHA RAO v. STATE (CBl/SPE)[S.C. AGRAWAL, J J 1003
1004 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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 of the
authority specified in clauses (a), (b) or (c) of sub-section (I) of Section 19.
It is submitted that none of the clauses (a), (b) or (c) of sub-section (I) of
Section 19 is applicable in respect of a Member of Parliament and that there
is no authorit)' who can grant sanction for prosecution of a Member of
B Parliament which means that a Member of Parliament does not fall within the
purview of the 1988 Act. Reliance has been placed on the observations of
/-
Shetty J. and Verma J. (as the learned Chief Justice then was) in K. Veeraswami
v. Union of India & Ors., [ 1991] 3 SCR 189, and the decision of the Orissa
...
High Court in Habibul!a Khan.
c The learned Attorney General has, on the other hand, urged that the
requirement of previous sanction under Section 19 of the 1988 Act only
imposes a limitation on the power of the court to take cognizance under
Section 190 Cr. P.C. of the offences mentioned in sub-section (I) of Section
19 and that if a public servant is not covered by any of the clauses (a), (b)
D and (c) of Section 19(1) and there is no authority who could grant sanction
for his prosecution, the limitation imposed by Section 19 on the power of the
~
court to take cognizance wou Id not be applicable and it would be open to the
competent court to take cognizance of the offences mentioned in Section
19( I) without insisting on the requirement of sanction. The submission is that
merely because none of the clauses (a), (b) and (c) of Section 19(1) is
E applicable to a Member of Parliament, it cannot be said that he is outside the
purview of the 1988 Act. The learned Attroney General has also urged, in the
alternative, that in view of the provisions contained in Articles I02 and 103
the President can be regarded as the authority competent to remove a Member
of Parliament and, therefore, he can grant the sanction for his prosecution
F under Section 19(l)(c) and it cannot be said that since there is no authority
who can grant sanction for his prosecurion a Member of Parliament is outside ,_..
the purview of the 1988 Act. The learned Attorney General has also submitted
that many of the appellants had ceased to be members of Parliament on the
date of filing of the charge-sheet and that the offence of criminal conspiracy
under Section 1208 IPC read with Section 7 and Section 13(2) read with
G Section 13(1 )( d) of the 1988 Act as well as the offence under Section 12 of
the 1988 Act are not among the offences mentioned in Section 19(1) and that
no sanction was required with regard to these offences and that sanction was -"
required only in respect of offences under Section 7, and Section 13(2) read
with Section 13(I)(d) of the 1988 Act as against A-4 and A-15 and that in view
H of sub-section (3) of Section 19 the omission of sanction would not have any
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL, J.] 1005

effect on the trial of the said accused persons. A
Section 19 of the 1988 Act provides as follows :-

"19. Previous sanction necessmy for prosecution.- (I) 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 B
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; C

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

(c) in the case of any other person, of the authority competent to D
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 ( l) should be
given by the Central Government or the State Government or any
other authority, such sanction shall be given by that Government or E
authority which would have been competent to remove the public
servant from bis office at the time when the offence was alleged to
have been committed.

(3) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2of1974),- F
(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 (l ), unless
in the opinion of that court, a failure of justice bas in fact been G
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,
omissionor irregularity has resulted in a failure of justice; H
1006 SUPREME COURT REPORTS [ 1998) 2 S.C.R.

A (c) no cou1t shall stay the proceedings under this Act on any other
ground and no coun 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
B 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 and should have been raised at any earlier
stage in the proceedings.
,..
Explanation.- For the purposes of this section,-
c
(a) error includes competency of the authority to grant sanction;

lb) 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
D any requirement of a similar nature."

The provisions as regards sanction were earlier contained in Section
6 of the 1947 Act. Sub-sections (1) and (2) of Section 19 substantially reproduce
the provisions contained in Section 6 of the 1947 Act. Clauses (a), (b) and(c)
of sub-section (I) of Section 19 are in the same terms as clauses (a), (b) and
E (c) of sub-section (I) of Section 6 of the 1947 Act. Sub-sections (3) and (4)
of Section 19 of the 1988 Act were not contained in Section 6 of the 1947 Act
and have been inserted for the first time in Section 19 of the 1988 Act.

In Veeraswami the question for consideration was whether a Judge of
the High Court fails within the ambit of the 1947 Act and in support of the
F contention that he was not covered by the said Act, it was submitted that
for prosecution in respect of an offence under the 1947 Act previous sanction
of an authority competent to remove the public servant as provided under
Section 6 of the 1947 Act is imperative and that the power to remove a Judge
of the Superior Court is not vested in any single individual authority but is
vested in the two Houses of Parliament and the President under Article 124(4)
G
of the Constitution and since there is no authority competent to grant sanction
under Section 6 of the 1947 Act a Judge of the Superior Court did not fall
within the ambit of the provisions of the 194 7 Act. The said contention was "' .,
rejected by the Court [Verma J. dissenting]. Shetty J., who delivered the main
judgment on behalf of the majority, held that for the purpose of Section 6 of
H the 1947 Act a Judge of the Superior Court fell in clause (c) of Section 6(1)
P.V. NARASIMHA RAO v STATE (CBl/SPE) [S.C. AGRAWAL, J.]1007

and that the President of India is the authority competent to grant sanction A
for his prosecution. The learned counsel for the appellants have placed
reliance on the following observations in the judgement of Shetty J. wherein
the learned Judge has construed the provisions of Section 6 of the 1947 Act:-

"Section 6 may now be analysed. Clause (a) of Section 6( 1) covers
public servants employed in connection with the affairs of the Union. B
-<
The prescribed authority for giving prior sanction for such persons

. would be the Central Government. Clause (b) of Section 6(1) covers
public servants in connection with the affairs of the State. The
competent authority to give prior sanction for prosecution of such
persons would be the State Government. Clauses (a) and (b) would c
thus cover the cases of public servants who are employed in connection
with the affairs of the Union or State and are not removable from their
office save by or with the sanction of the Central Government or the
State Government. That is not the end. The section goes further in
clause (c) to cover the remaining categories of public servants. Clause
(c) states that in the case of any other person the sanction would be
D
v- of the authority competent to remove him from his office. Section 6
is thus all embracing bringing within its fold all the categories of
public servants as defined under Section 21 of the !PC." [p. 238]

"The provisions of clauses (a) and (b) of Section 6(1) of the Act E
covers certain categories of public servants and the 'other ' which
means remaining categories are brought within the scope of clause
(c)." [p. 240]

It has been pointed out that Venna J., in his dissenting judgment, has also
taken the same view when he said :- F
..... "Clauses (a), (b) and (c) in sub-section(!) 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 for an offence punishable under the Act; of a public G
servant who is prosecuted during his continuance in the office. It
r follows that !he public servant falling within the purview of the Act
must invariably fall within one of the three clauses in sub-section (I)
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 H
..
1008 SUPREME COURT REPORTS [1998] 2 S.C.R.

A fall within any of the clauses (a), (b) or (c) of sub-section (I) of
Section 6 must be held to be outside the purview of the Act since this
special enactment was not ena~ted to cover that category of public
servants in spite of the wide definition of 'public servant' in the Act.
This is the only mannef in which these provisions of the Act can be
B harmonised and given full effect." [pp. 285, 286]

The said decision in Veeraswami was given in the context of the
defin,ition of 'public servant' as contained in Section 21 IPC. The various
clauses in Section 21 IPC refer to persons who can be removed from the office
and keeping in view the criterion of removability from office this Court in
C Veeraswami has said that clauses (a) (b) and (c) of sub-section (I) of Section
6 of the 1947 Act cover all the categories of public servants mentioned in
Section 21 IPC. In the 1988 Act. the concept of public servant has been
enlarged. A separate provision containing the definition of 'public servant'
has been introduced in Section 2( c) of the 1988 Act. A comparison of the
D definition of 'public servant' contained in Section 21 !PC and that contained
in Section 2(c) of the 1988 Act would show that Section 21 IPC did not include
persons falling under sub-clauses (ix),(x), (xi) and (xii) of Section 2(c). Sub-
clause (viii) of Section 2(c:) is also wider in amplitude than clause 12(a) of
Section 21 !PC.

E In Veeraswami while considering whether Parliament is the authority
which could grant sanction for prosecution of a Judge of the Supreme Court
since under Article 124(4) of the Constitution, the address must be passed
by each House of Parliament, Shetty J. has said :-

'The grant of sanction requires consideration of material collected by
F the investigative agency and Parliament cannot properly consider the
meterial. Parliament is wholly unsuitable to that work. It would be
reasonable to presume that the legislature while enacting clause (c) of ,....
Section 6( 1) of the Act could not have intended Parliament to be the
sanctioning authority." [p. 244]
G The enlarged definition of public servant in Section 2(c) of the 1988 Act
includes persons who are not removable by an single individual authority and
can only be removed by a collective body and the aforementioned observation
of Shetty J. made in the context of parliament would be applicable.Reference,
in this context, may be made to sub-clauses (ix)and (xii) of Section 2(c). Sub-
H clause (ix) speaks of a person "who is the president, secretary or other office-
P.V. NARASIMHA RAO v. STATE (CBl/SPE) [S.C. AGRAWAL, J.] 1009

bearer of a registered cooperative society engaged in agriculture, industry, A
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 (I of 1956)". The President,
B
Secretary and other office bearers of a co-operative society hold office in
... accordance with the provisions of the relevant statute governing such society
and the rules and bye-laws made thereunder. The said statute and the rules
"' and bye-laws may provide for an elected President, Secretary and other office
bearers who may be removable by a vote of no- confidence by the body
which has elected them. Similarly sub-clause (xii) of Section 2(c) of the 1988 c
Act talks of a 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 llr any State Government, or local or other public authority".
There may be an institution run by a society through an elected Managing D
Committee. The office bearer of such an institution would be the elected
)..'.. President or Secretary of the Managing Committee who would be removable
only by the body which elected him. The consideration which weighed with
this Court in Veeraswami for holding that Parliament could not be intended
to be the sanctioning anthority under Section 6( I)(c) of the 194 7 Act wou Id
E
equally apply to the general body of members of a co- operative society under
clause (ix) and to the general body of members of a society running an
institution referred to in clause (xii) and it can be said that the said bodies
could not have been intended by Parliament to be the sanctioning authority
for the purpose of Section 19(l)(c) of the 1988 Act.
F
This would mean that the definition of 'public servant' in Section 2(c)
of the 1988 Act includes persons who are public servants under that provision
though the criterion of removability does not apply to them and there is no
single individual authority which is competent to grant sanction for their
prosecution under Section 19 of the 1988 Act. In respect of a Member of
Parliament the Constitution does not confer on any pa1iicular authority the G
power to remove him. Clause (I) of Article 103 lays down that if any q11estion
arises as to whether a member of either House of Parliament has becP'"'·'
/ subject to ai.y of the disqualifications mentioned in clause (I) of Article 102,
the question shall be referred to the decision of the President and his decision
shall be final. The said function of the President is in the nature of an H
1110 SUPREME COURT REPORTS [1998] 2 S.C.R.

A adjudicatory function which is to be exercised in the event of a dispute giving
rise to the question whether a Member of either House of Parliament has
become subject to any of the disqualifications mentioned in clause (I) of re
Article 102 being raised. If the President holds that the membt>r has become
subject to a disqualification mentioned in clause (I) of Article 102, the member
B would be treated to have ceased to be a member on the date when he became
subject to such disqualification. If it is not disputed that a member has
incurred a disqualification mentioned in clause (I) of Article I 02, the matter ~

does not go to the President and the member ceases to be a member on the I>
date when he incurred the disqualification. The power conferred under Article
I03( 1) cannot, therefore, regarded as a power of removal of a Member of
c Parliament. Similarly, under the Tenth Schedule to the Constitution a power
has been conferred on the Chairman of the Rajya/the Speaker of the Lok
Sabha to decided the question as to whether a Member of Rajya Sabha/Lok
Sabha has become disqualified for being a member on the ground of defection.
The said decision of the Chairman of the Rajya Sabha and the Speaker of the
D Lok Sabha that a Member has incurred disqualification on the ground to
defection may result in such Member ceasing to be a Member but it would
~
not mean that the Chairman of the Raj ya Sabha/Speaker of the Lok Sabha is
the authority competent to remove a Member of Rajya Sabha/Lok Sabha. It
is no doubt true that the House in exercise of its power of contempt can pass
E resolution for expulsion of a Member who is found guilty of breach of
a
privilege and acceptance of bribe by a Member in connection with the business
of the House is regarded as breach of privilege. On that basis it may be
possible to say that the House has the power to remove a Member who is
found to have indulged in bribery and corruption. But in view of the decision
in Veeraswami wherein Shetty J. has said that legislature while enacting
F
clause (c) of Section 6 of the 1947 Act could not hav~ intended Parliament
to be the sanctioning authority, the House cannot be regarded as the authority
competent to grant sanction under Section 19(1)(c) of the 1988 Act. On that
view of the matter it must be held that there is no authority who can remove
a Member of Parliament and who would be competent under clauses (a), (b)
G or (c) of Section 19( 1) of the 1988 Act to grant sanction for his prosecution.
This does not, however, lead to the conclusion that he cannot be treated as
'public servant' under Section 2(c)(viii) of the 1988 Act if, on a proper ~
interpretation of the said provision he is found to be a public servant. Since
on an interpretation of the provisions of Section 2(c)(viii) of the 1988 Act we
H have held that a Member of Parliament is a public servant, a Member of
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRA WAL, J.] 1011

1 Parliament has to be treated as public servant for the purpose of the 1988 Act A
even though there is no authority who can grant sanction for his prosecution
under Section 19( I) of the 1988 Act.

It is then urged that if it is found that there is no authority who is
competent to remove a Member of Parliament and to grant sanction for his
prosecution under Section 19( 1) of the 1988 Act then a Member of Parliament B
would fall outside the purview of the Act because in view of the provisions
of Section 19 sanction is imperative for prosecution in respect of an offence
under the 1988 Act. In support of this contention reliance has been placed
on the following observations in the dissenting judgment of Verma J. in
Veeraswami :- c
"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 D
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 constitution of the provisions of the Act can be
made for the purpose of achieving the object of that enactment." [p.
2~1 E

With due respect we find it difficult to agree with these observations.
In taking this view the learned Judge has construed Section 6 of the 1947 Act,
which like Sections 193 and 195 to 197 Cr. P.C. was a limitation on the power
of the Court to take cognizance and thereby assume jurisdiction over a matter, F
as a right conferred on a public servant to mean "no public servant shall be
--<. prosecuted without previous sanction". This aspect has been considered by
this Court in S.A. Venkataraman v. The State, [1958] SCR 1037. In that case
the appellant, who was a public servant, had been dismissed after departmental
enq!Jiry and thereafter he was charged with having committed the offence of
criminal misconduct under Section 5(2) of the 1947 Act and he was convicted. G
No sanction under Section 6 was produced before the trial court. It. was
contended before this Court that the court could not take cognizance of the
offence without there being a proper. sanction to prosecute. The said
contention was rejected on the view that sanction was not necessary for the
prosecution of the appellant as he was not a public servant at the time of H
1012 SUPREME COURT REPORTS [1998] 2 S.C.R.

A taking cognizance of the offence. After referring to the provisions contained
in Section 190 Cr. P.C. which confers a general power on a criminal court to
take cognizance of offences and, after holding that Section 6 is in the nature
of a limitation on the said power, it was observed :-

"In our opinion, if a general power to take cognizance of an offence
B is vested in a court, any prohibition to the exercise of that power, by
any provision oflaw, must be confined to the terms of the prohibition.
In enacting a law prohibiting the taking of a cognizance of an offence
by a court, unless certain conditions were complied with, the legislature
did not purport to condone the offence. It was primarily concerned to
C see that prosecution for offences in cases covered by the prohibition
shall not commence without complying with the conditions contained
therein, such as a previous sanction of a competent authority in the
case of a public servant, and in other cases with the consent of the
authority or the party interested in the prosecution or aggrieved by
D the offence." [pp. 1043, I 044]

"When the provisions of s. 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
E 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
F 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 previous sanction."
G
[p. 1045]

This means that when there is an authority competent to remove a public ,
'--.-
servant and to grant sanction for his prosecution under Section 19(1) of the
1988 Act the requirement of sanction preludes a court from taking cognizance
H of the offences mentioned in Section 19(1) against him in the absence of such
P.V. NARASIMHA RAO v. STATE (CBI/SPE) [S.C. AGRAWAL, J.]1013

sanction, but if there is no authority competent to remove a public servant A
and to grant sanction for his prosecution under Section 19( I) there is no
limitation on the power of the court to take cognizance under Section 190 Cr.
P.C. of the offences mentioned in Section 19(1) of the 1988 Act. The requirement
of sanction under Section 19( I) is intended as a safeguard against criminal
prosecution of a public servant on the basis of malicious or frivolous B
allegations by interested persons. The object underlying the said requirement
is not to condone the commission of an offence by a public servant. The
inapplicability of the provisions of Section 19(1) to a public servant would
only mean that the intended safeguard was not intended to be made available
to him. The rigour of the prohibition contained in sub-section (I) is now
reduced by sub-section (3) of Section 19 because under clause (a) of sub- C
section (3) it is provided that 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 absence of, or any error, omission or irregularity
in the sanction required under sub-section (I), unless in the opinion of that
court, a failure of justice has in fact been occasioned thereby. This would D
>- show that the rquirement of sanction under sub-section ( l) of Section 19 is
a matter relating to the procedure and the absence of the sanction does not
go to the root of the jurisdiction of the court. It must, therefore, be held that
merely because there is no authority which is competent to remove a public
servant and to grant sanction for his prosecution under Section 19(1) it E
cannot be said that a Member of Parliament is outside the purview of the 1988
Act.

In the absence of requirement of previous sanction for initiating
proceedings in a court of law against a Member of Parliament in respect of
an offence mentioned in Section 19(1) of the 1988 Act the possibility of a F
Member of Parliament being subjected to criminal prosecution on the basis
of malicious or frivolous allegations made by interested persons cannot be
excluded. It is hoped that Parliament will provide for an adequate safeguard
in that regard by making suitable amendment in the 1988 Act. But till such
safeguard is provided, it appears appropriate to us that protection from being G
subjected to criminal prosecution on the basis of malicious or frivolous
...,./ allegations should be available to Members of Par! iament.

In Veeraswami this Court, while considering the question regarding the
applicability of the provisions of the 194 7 Act to Judges of Superior Courts,
has held that Judges of Superior Courts fall within the purview of the said H
1014 SUPREME COURT REPORTS [ 1998) 2 S.C.R.

A Ac: and that the President is the authority competent to grant sanction for
their prosecution. But keeping in view the need for preserving the independence
of the judiciary and the fact that the Chief Justice of.India, being the head
of the judiciary, is primarily concerned with the integrity and impartiality of
the judiciary, the Court has directed that the Chief Justice of India should be
B consulted at the stage of examining the question of granting sanction for
prosecution. In relation to Members of Raj ya Sabha/ Lok Sabha the Chairman
of the Rajya Sabha/ Speaker of the Lok Sabha holds a position which is not
very different from that held by the Chief Justice of India in relation to
members of the superior judiciary. In the United Kingdom the Speaker of the
House of Commons is regarded as the representative of the House itself in
c its powers, proceedings and dignity and is treated as a symbol of the powers
and privileges of the House. [See: May's Parliamentary Practice 21st Edn.,
pp 179, 180). The same is the position in India. In the words of Pandit Jawahar
Lal Nahru : "The Speaker represents the House. He represents the dignity of
the House, the freedom of the House .. " [See: HOP Debale Vol. IX (1954), CC
D 344 7- 48]. In Kihoto HollophP.'1 v. Zachillhu & Ors., [ 1992) Supp. 2 SCC 651,
this Court has said : "The Speakers/ Chairman hold a pivotal position in the ~
scheme of Parliamentary democracy and are guardians of the rights and
privileges of the House." The Chairman of the Rajya Sabha/Speaker of the
Lok Sabha by virtue of the position held by them are entrusted with the task
E of preserving the independence of the Members of the House. In order that
Members of Parliament may not be subjected to criminal prosecution on the
basis of frivolous or malicious allegations at the hands of interested persons,
the prosecuting agency, before filing a charge-sheet in respect of an offence
punishable under Sections 7, I 0, I I, 13 and 15 of the 1988 Act against a
Member of Parliament in a criminal court, shall obtain the permission of the
F Chairman of the Raj ya Sabha/Speaker of the Lok Sabha, as the case may be.
On the basis of the aforsaid discussion we arrive at the following
cunclusion :-
I. A Member of Parliament does not enjoy immunity under Article
G I05(2) or under Article I05(3) of the Constitution from being
prosecuted before a criminal court for an offence involving offer
or acceptance of bribe for the purpose of speaking or by giving "'-.,_,
his vote in Parliament or in any committees thereof.
2. A Member of Parliament is a public servant under Section 2 (c)
H of the Prevention of Corruption Act, 1988.
P.V. NARASIMHA RAO v. STATE(CBI/SPE) [S.C. AGRAWAL. l.Jl015

3. Since there is no authority competent to remove a Member of A
Parliament and to grant sanction for his prosecution under Section
19(1) of the Prevention of Corruption Act, 1988, the court can
take cognizance of the offences mentioned in Section 19( I) in
the absence of sanction but till provision is made by Parliament
in that regard by suitable amendment in the law, the prosecuting B
agency, before filing a charge-sheet in respect of an offence
punishable under Sections 7, 10, 11, 13, and 15 of the 1988 Act
against a Member of Parliament in a criminal court, shall obtain
the permission of the Chairman of the Raj ya Sabha/Speaker of
the Lok Sabha, as the case may be.
c
S.M. Appeals disposed of.