NEW DELHI, April 17: The Supreme Court today struck a historic balance between the autonomy of Parliamentary functioning and the need for judicial intervention when it ordered the prosecution of former prime minister Narasimha Rao and Union Minister Buta Singh in the Jharkhand Mukti Morcha case but let off the four JMM MPs accused of `bribe-taking'.
Ruling in the JMM MPs bribery case, the court said that trial must proceed against the alleged ``bribe-givers'' but not against the alleged ``bribe-takers'' since they enjoy immunity under Article 105(2) of the Constitution. The court also excluded Ajit Singh from the latter group saying that he did not vote and, therefore, doesn't enjoy this immunity.
Among the ten accused persons in the case charged with conspiracy read with various sections of the PCA are Captain Satish Sharma, V Rajeshwara Rao, son of Narasimha Rao, H M Revanna and Ramlinga Reddy (both Karnataka MLAs), M Veerappa Moily, former Karnataka chief minister, D K Audikeshvalu, M Thimmegowda andformer Haryana chief minister Bhajan Lal.
The accused, who come under the alleged bribe-taker category are former JMM MPs Simon Marandi, Suraj Mandal and Shibhu Soren, former Union minister Ram Lakhan Singh Yadav, former Janata Dal (A) MPs Ram Sharan Yadav, Anadi Charan Das, Roshan Lal, Abhay Pratap Singh and Haji Ghulam Mohammad Khan.
Today's ruling is the most authoritative one so far on the interpretation of Article 105 (2) and it drew different opinions from different judges on the five-member Constitution Bench.
The Article states that ``no MP 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.''
In essence, the bench was dealing with three questions: Does this Article confer any immunity on an MP from being prosecuted for an offence involving offer or acceptance of bribe? Is an MP excluded from the Prevention of Corruption Act, 1988, because he is not a public servant? And because there's noauthority competent to grant sanction for his prosecution?
Justice S C Agarwal and Justice A S Anand took the conservative view that Article 105 does not protect corruption. Citing examples from prevailing law in several countries including the UK, USA, Australia and Canada, they argued that the purpose of immunity is to protect the MP, not for his sake, but to preserve legislative independence. And that taking a bribe is no part of the legislative process. Neither is it a legislative act.
However, Justice S P Bharucha and Justice S Rajendra Babu disagreed with a far more liberal interpretation of Article 105(2). ``We are acutely conscious of the seriousness of the offence the alleged bribe-takers are said to have committed,'' they said. ``If true, they bartered a solemn trust committed to them by those they represented. Even so, they are entitled to the protection that the Constitution plainly affords them. Our sense of indignation should not lead us to construe the Constitution narrowly, impairing theprosecution alleging that he had been party to an agreement and conspiracy to achieve a certain result in Parliament and had been paid a bribe.''
Therefore, the alleged bribe-takers were immune since they cast their vote in Parliament. But the alleged bribe-givers have no such immunity, they said.
It was Justice G N Ray who tilted the balance. In a separate judgment, he said he did not agree with Justice Agarwal on the question of immunity. ``In order to ensure effective functioning of the Parliamentary democracy, there was a felt need that an MP will have absolute freedom in expressing his views in the deliberations made in the floor of the Parliament... he must enjoy full freedom in casting his vote,'' he said.
On the question of whether an MP is a public servant, all five judges agreed. Arguing that the definition of a public servant -- under the Prevention of Corruption Act -- fits that of an MP, Justice Bharucha and Justice Babu said that in a democracy, an MP or an MLA represents the people andperforms a public duty of making laws and even deciding how funds of the Centre and the state shall be spent. ``It is difficult to conceive of a duty more public than this,'' they said.
On the issue of sanction, Justice Agrawal and Justice Anand held that since there is no authority competent to remove an MP and to grant sanction, the court can take cognizance of the offences. The judges, however, added that until a law is enacted, the prosecuting agency shall obtain the permission of the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha as the case may be. Justice Ray agreed with this reasoning while Justice Bharucha and Justice Babu hoped that ``Parliament will address itself to the task of removing this lacuna with due expedition.''
For alleged bribe-takers except Ajit Singh: Suraj Mandal, Shibu Soren, Simon Marandi and Shailendra Mahato of the JMM; Ram Lakhan Singh Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed. All entitled to immunityunder Article 105(2). Verdict. 3-2.
BAD NEWS (Trial must proceed):
For alleged bribe-givers:
* D K Adikeshavulu and M Thimmogowda, private persons
* P V Narasimha Rao, Buta Singh, Satish Sharma, V Rajeswar Rao, Ram Linga Reddy, M Veerappa Moily and Bhajan Lal
Charged with substantive offences under Section 120B of the IPC and Section 12 of the Prevention of Corruption Act
* Ajit Singh, charged under Section 120B and the PCA.
Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.