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PETITIONER: P.V. NARASIMHA RAO

       Vs.

RESPONDENT: STATE(CBI/SPE)

DATE OF JUDGMENT:       17/04/1998

BENCH: S.P. BHARUCHA, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                             WITH Crl.A.No.1209/97,1210-1212/97,  1213/97,  1214/97,  1215/97, 1216/97,1217-18/97, 1219/97, 1220/97, 1221/97,1222/97,186/98 & 187/98                       J U D G M E N T 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 member 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 Mandal,  Shibu Soren, Simon Marandi and  Shailender Mahto,   members  of the  Lok  Sabha owing allegiance  to the  Jharkhand Mukti  Morcha (the JMM), and Ram  Lakhan Singh  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 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, M.P., N.M. Ravanna,  Ram Linga  Reddy, M.L.A.,  M.Veerappa  Moily, M.L.A.   and    Chief   Minister,    State   of   Karnataka, 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 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.   Satish      Sharma,  Buta  Singh,  V.Rajeshwara

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    rao, HM Revanna, Ramlinga Reddy, M.      Veerappa    Moiley,    D.K.    Audi      Keshvalu,  M.  Thimmegowda,  Bhajan      Lal, JMM  (Jharkhand Mukti  Morcha)      MPs  Suraj   Mandal,  Shibu  Soren,      Simon  Marandi,   Shailendra  Mahto      (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      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 as a      motive or  reward for their helping      in defeating the said no confidence      motion  moved   by  the  opposition      parties and  in  pursuance  of  the      said agreement  you paid  or caused      to pay  several lacs  of rupees  to      the above  referred JMM  and  Janta      Dal  (A)   MPs  who   obtained   or      attempted to obtain the same in the      manner stated above and thereby you      have    committed     an    offence      punishable  u/S   120  B   IPC  r/w      Sections 7,12  and 13(2) r/w 13 (2)      r/w 13(i)(d) of the PC Act 1988 and      within my cognizance.           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  committed   an      offence punishable  u/S 12  of  the      P.C. Act and within my cognizance." Similarly charges  were framed  against  the  alleged  bribe givers.      The charge  framed against  Suraj Mandal  of the J.M.M. reads thus:           "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,   Bhajan    Lal,   JMM      (Jharkhand Mukti  MOrcha) MPs Shibu      Soren.  Simon  Marandi,  Shailendra      Mehto  (Approver,   since   granted      pardon on  8.4.97), Janta Dal (Ajit

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    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 moved against the      then Congress (I) Government headed      by accused  Shri P.V.Narasimha  Rao      on 26.793  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 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  persons  and      thereby  you   have  committed   an      offence  punishable  u/s  120B  r/w      Sections  7,12,13(2)   r/w  section      134(i)(d)  of   the  P.C.  Act  and      within my cognizance.                Secondly, that  you being      a public  servant while functioning      in  your   capacity  of  Member  of      Parliament (10th  Lok Sabha) during      the aforesaid  period  and  at  the      aforesaid places  in  pursuance  of      the aforesaid  conspiracy  demanded      and accepted  from your  co-accused      other  than   JMM   &   JD(A)   MPs      mentioned above  a  sum  of  Rs.280      lacs for yourself and other JMM MPs      named above  other than  your legal      remuneration as  a motive or reward      for  defeating  above  referred  no      confidence motion moved against the      then Govt.  of Congress  (I) headed      by  your   co-accused   Shri   P.V.      Narasimha Rao  and thereby you have      committed an offence punishable u/S      7  the   P.C.  Act  and  within  my      cognizance.           Thirdly,   you    during   the      aforesaid   period   and   at   the      aforesaid  places  being  a  public      servant while  functioning in  your      aforesaid  capacity  of  Member  of      Parliament by  corrupt  or  illegal      means and  by abusing your position      as a  said public  servant obtained      for  yourself  or  your  other  co-      accused 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

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    present 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 thereby      committed an  offence u/S  193  IPC      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 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 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, 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 Corruption Act, 1998. Privilege.      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 standing  order 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    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 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

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    Amendment ) Act, 1978.      (4) The  provisions of clauses (1),      (2) and (3) shall apply in relation      to persons  who by  virtue of  this      constitution 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. 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. Article 105(2).      By reason of Sub-article (1) 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 (1)  of article  105 suggests  that this 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  (1)  states affirmatively. Both sub-articles  must be read together to deter mine their content. By  reason of  the first part of sub-article (2) no member is  answerable in  a court  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  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.  Secondly, the  protection  is broad, being  "in respect  of". It is so given to secure the freedom  of   speech  in  Parliament  that  sub-article  (1) 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 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 with  such publication.   The  constitution having dealt with  the all  - important  privilege  of  members  of Parliament to speak and vote therein as they deem fir, freed of the fear of attracting legal  proceedings concerning what they say  or how  they  vote,  provides  for  other  powers,

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privileges and  immunities is  sub-article (3). Till defined by Parliament  by enactment,  they are  such as were 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 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 Parliament thought to be that it was  expressly provided  for, not left to be gathered, as other powers, privileges and immunities were, from the House of 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-article (4) gives the protection of the Sub-articles that  preceded it  to all who have the right to address the House, for example, the Attorney General.      The provisions of Article 105 and of Article 194, 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.1  S.C.R.  806,  a portion of  the 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 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 those possessed by other bodies individuals". The  privileges of  the House  of Commons,  as distinct from  those of  the House of Lords, were defined as "the sum  of the  fundamental rights of the House and of its individual members as against the prerogatives of the Crown, 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 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 deliberative  bodies like the  House of  Lords  and  Commons,  this  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) 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

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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  of  Article 194(2), therefore,  indicated that  the  freedom  of  speech referred to  in sub-article  (1) 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 105(3) or by a State Legislature  in  pursuance  of  the  earlier  part  of Article 194(3)  was not  law made in exercise 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 reason why Parliament  and the State Legislatures had not made laws defining their powers, privileges or immunities conferred by the latter  part of  Articles 105  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 Legislatures and  therefore, they  were as  supreme  as  the provisions of  part II  of the  Constitution. Further, quite conceivably,  the  Constitution  makers,  not  knowing  what powers, privileges and immunities Parliament or the  State Legislatures   might  claim, though fir not to take any  risk and  made such laws subject to the provisions of Article  13; but  that, knowing  and being satisfied 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(1)(a).      The case  of Dr.  Satish Chandra   Ghosh  V.Hari Sadhan Mukherjee, [1961]  3 S.C.R. 486, dealt with an appellant who was a  member of a 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 journal. The  appellant pleaded privilege and immunity under Article 194  of  the  Constitution  as  a  bar  to  criminal prosecution. The  claim of absolute privilege 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 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  having no  such absolute privilege, it was held that "he  must take  his trial  and enter  upon his defence,

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such as he may have."      Special Reference  No.1 of  1964,[1965]  1  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 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  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 has granted him  bail. The  judges and  the advocate  filed writ petitions before  the High  Court at Allahabad. A 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  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 have entertained 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  entered  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  against  the  judge  in  the exercise of  its  powers,  privileges  and  immunities.  The adjectival  clause   "regulating  the   procedure   of   the Legislature" in  Article 194(1)  governed, it was held, both the proceeding  clauses relating  to "the  provisions of the Constitution"  and   "the  rules   and   standing   orders." Therefore,   Article   194(1)   conferred   on   legislators specifically the  right of  freedom of 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  the first part of  Article 194(1).  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 right of freedom of speech in violation, say, of Article , he  would not  be liable  for any  action  in  any  court.

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Similarly, if  the legislator  by  his  speech  or  vote  is alleged to  have violated  any  of  the  fundamental  rights guaranteed  by   Part  III   of  the   Constitution  in  the Legislative Assembly,  he would  not   be answerable for the said contravention  in any  court. If  the  impugned  speech amounts o  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 .... .... .... 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 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, some were given  up in  course of  time and  some  faded  out  by desuetude. Accordingly,  in every  case where  a  power  was claimed, it  was necessary  to 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 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 difficult for this Court  to accept  the argument  that the  result of the provisions contained  in the  latter part  of Article 194(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 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 the  footing that  it was  a  warrant  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.  N.S. Reddy [1971]1 S.C.R. 612, it  was contended  that the immunity granted by Article 105(2) was  with reference to the business of Parliament and not in  regard to  something  which  was  something  utterly irrelevant. This Court said:      "The article means what it says in language which could not be  plainer. The article confers immunity inter  alia in respect of  anything said  ....... in  Parliament. The  word "anything is  of the  widest import  and  is  equivalent  to ’everything’. The  only limitation arises from the words ’in

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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 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   by the  Speaker. The courts have no say in the matter and should really have none."      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. 1.  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  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  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 Tolaram  Relummal and  anr. vs. The State of Bombay, 1995 (1)  S.C.R. 158,  this Court  construed the  words  "in respect of"  occurring in  Section 18(1)  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 consideration, other      than the  standard 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 emphasis 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.............It  is difficult to  hold that  any relationship  of  landlord  and tenant comes into existence on the execution of an agreement executory in  nature or that the expression "premium" can be appositely used  in connection  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(1),  but  it  is unnecessary to  express any final opinion on the question as

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in the  present case  admittedly no  lease  ever  came  into existence and  the relationship  of landlord  and tenant was never created 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 vs. M/s.  Swastik  Tobacco  Factory,  Vedaranyam,  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  Lords in  Inland Revenue Commissioners  vs.  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 Council in Bicber, Ltd. V. Commissioners  of Income-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 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. In the context of its use in the Constitution  and having  regard to  the object which is intended to  be secured by Article 105(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 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  105(2)  did  not  cover criminal proceedings.  It had been held by the courts of the United States  of America,  Canada, Australia and, recently, England, he  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 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 occation, 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-Arms restraining him from carrying out  the resolution.  The  suit was dismissed. Lord

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Coleridge, C.J. said, "What is said or done within the 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 Ellenborough, "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  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.........If injustice has been done, it is injustice for which 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. In support, the  learned Judge quoted Blackstone, who had said, "The whole  of the  law and  custom of  Parliament  has  its original from  this one  maxim, ’that whatever matter arises concerning  either  House  of  Parliament  ought      to  be examined, discussed,  and adjudged in that House to which it relates, and  not elsewhere."  This principle  had been  re- stated by the judges who decided Stockdale v. Hansard, 9 Ad. & E.I.  Lord Denman  had said,  "Whatever is dome 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 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  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 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  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".      In the  case of Church of Scientology of California vs. Johnson Smith,  (1972) ALL E.R. 378, the defendant, a member of Parliament,  was sued  for libel allegedly published in a

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television 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  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  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      of  privilege   or  a  contempt  of      Parliament.  In   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.  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 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 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 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:           "Membership of Parliament is a      great honour  and carries with it a      special  duty   to   maintain   the      highest standards  of probity,  and

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    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   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".      In Prebble v. Television New Zealand Ltd., (1994) 3 All E.R. 407, the Privy Council considered Article 9 of the Bill of Rights  (1688), which  applies by reason of incorporation in  New Zealand. It reads thus:      "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  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 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  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 also upheld  the claim  to immunity.  Lord Browne-Wilkinson, speaking for the Board, said that if Article 9 was looked at alone, the  question 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, 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 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

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freely what  he has  to say.  If there  were any  exceptions which   permitted    his   statements   to   be   questioned subsequently, at  the time  when he  speaks in Parliament he would not  know whether or not there would subsequently be a challenge to  what he is saying. Therefore he would not have the confidence  the privilege  is designed  to protect." 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 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  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,  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. vs.  Currie, it was alleged against Harry Greenway, a Member of Parliament, that he had  accepted a bribe from Plasser, Jurasek and Brooks as a reward  for using his influences 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 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 of an office, and most  of us  are not the holders of an office". Viscount Dilhorne had  agreed. Buckley,  J. could  not accept  that a question of  such 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 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 Common Law if the offer 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

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corruptly abuses  his trust  - is  guilty of  an 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 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 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 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 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  to  do  with  the  topic  which  we  are discussing than  the Merchandise  Markets 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, that  is  to  favour  the briber as opposed to acting independently and on the merits, the crime is complete. It owns 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 Church Of  Scientology v.  Johnson-Smith, 1972,  1  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 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  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 of 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  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  going  on  in  Parliament  would  be

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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 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  cases ..................nor  is it  an appropriate   or   experienced   body   to   pass   sentence ..................   The courts  and legislatures  have over the years  built up  a formidable  body of  law and codes of practice t  achieve fair  treatment of  suspects and persons ultimately charged  and brought  to trial  ................. Again, unless  it is to be assumed that his peers would lean in his  favour why should a Member be deprived of a jury and an experienced judge to consider his guilt or innocence and, if  appropriate,   sentence  ?  Why  should  the  public  be similarly deprived."  The prosecution went ahead against the other accused but the charge was not 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 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 which the public have 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  be  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".      Halbury’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), sets out the law succintly:      "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."      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  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  speech or  debate clause.  Referring to United States Senators  and Representatives,  it says  : (F) or any Speech  or  Debate  in  either  House,  they  shall  not  be

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questioned in any other Place".      Thomas F.  Johnson was  convicted by  a  United  States Distinct Court  for violating a federal conflict of interest statute and  for conspiring  to defraud  the United  States. Evidence was  admitted and  argument was  permitted  at  the trial that related to the authorship, content and motivation of a  speech which 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 indicated on mail fraud charges. The conviction had been set  aside by  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. 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 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. 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 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  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". Th  language of  the Constitution  was framed in the broadest terms. 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  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  centered upon the questions of  who first decided that a speech was desirable, who prepared 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 application, did  not   draw  in  question  the  legislative  acts  of  a

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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 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  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 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 hm in his official  capacity........." The  other  charge  was  in 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  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  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 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 cause  of   Johnson(ibid).  Burger,   C.J.,  said   that  it unanimously  held   that  a  member  of  Congress  could  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  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 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 conductg" related to the due functioning  of the  legislative process." Burger, C.J., said that  the  quoted  words  did  appear  in  the  Johnson opinion, but  they were  taken out  of context.  In context, they reflected a quite different meaning from that urged. In

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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 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  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, 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  was not  "to  make members of  Congress super-citizens,  immune  from  criminal responsibility. In its narrowest scope, the clause is a very large, albeit  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 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  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. The  speech or  debate clause was broad enough to insure  the  historic  independence  of  the  Legislative Branch, essential  to the  separation of  powers, but narrow enough to  guard against  the  excess  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, 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

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the performance  of a  legislative  act  or  for  use  of  a 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  bribe,  not performance of the illicit compact, that was a criminal act. 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".      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 that ’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 "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 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. Brandhove, 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 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." 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  of  legislative  immunity.  Yet,  the majority has adopted "a wholly artificial view of the charges before  us". The  indictment alleged  not  the  mere 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 Government could not avoid proving the  performance of  the bargained-for  acts and any inquiry in this behalf violated the speech or debate clause.

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The 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 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 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  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 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  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 that Congress assigned the task to the judiciary in enacting 18 USC 201. 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 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 Constitution, in Senator Brewster’s case, exclusively to the Senate of  the United  States. Yet  the  Court  provides  no principal 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".      Justice White  took substantially  a similar  view  and

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part of what he said has already been quoted.      The judgment  in Brewster was followed in United States v Henry  Helstoski, 61 L. Ed. 2d 12 Brennan, J., dissenting, expressed the  view that  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 105(2) protects  a 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  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  accepted" by  then .  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 the bribes to secure the defeat of the no-confidence motion.      While it  is true that the charge against them does not refer to the votes 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 fact  that the votes were cast and, if the facts alleged against the  bribe takers are true, that they 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 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 the words "in respect of" must receive a broad  meaning, the  protection under  Article  105(2)  is limited to  court proceedings that impugn the speech that is given or the vote that 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, 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 proceedings  that bear  a nexus to their speech or  vote. It  is for  that reason  that 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 if the 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

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present prosecution,  it is  not  difficult  to  envisage  a member who  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 alleged  bribe  takor  are  said  to  have committed. If  true,  they  bartered  a  most  solemn  trust committed to  them by  those they  represented. By reason of the lucre  that they  received, they enabled a Government to survive. Even  so, they  are entitled to the protection that the  Constitution   plainly  affords   them.  Our  sense  of indignation should  not lead us to construe the Constitution narrowly, imparing  the guarantee to effective Parliamentary participation and 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.      In Johnson,  the United  States Supreme Court held that the  speech   or  debate  clause  extended  to  prevent  the allegation that a member of 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 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 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 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,  whether  or  not  the  acts themselves    or  the  circumstances  surrounding  them  are questioned 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". The Senator’s "reprehensible and outrageous conduct", if committed, should not have  gone unpunished,  but whether  a court or only the Senate "might  undertake the task was a constitutional issue of portentous  significance, which    must  of  course    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 related to legislative affairs but      Brennan, J., dissenting in Brewster, said that Brewster had been  charged with  a  crime  whose  proof  called  into question the  motives behind  his legislative acts. He could not only  not be prosecuted or called to answer for his vote in any  judicial or  executive proceeding  but his  immunity

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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  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 promises 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,  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 are  held to  bar accountability for  official conduct  itself". The Senator’s "reprehensible and outrageous conduct", if committed, should not have  gone unpunished,  but whether  a court or only the Senate "might  undertake the task was a constitutional issue of portentous significance, which must of course 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 related to legislative affairs but not a  part of  the legislative  process itself".  Upon this construction of  the speech or debate clause, it came to the conclusion that  a court  could investigate whether Brewster had taken  a bribe  to be  influenced in  the performance of official acts  in respect  of his action, vote, and decision on postage  rate legislation. With respect, we cannot regard 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 Congress publication "The Constitution  of the United States of America, Analysis and  Interpretation"   says,  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 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. vs. Currie  that a  Member of Parliament who accepts a bribe to abuse  his trust  is guilty  of the 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 read thus:      "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 where a Member may

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    act as  such, without participating      in         ’proceedings          in      Parliament’(whether    of    course      article IX will apply)."      Our conclusion  is that the alleged bribe takers, other than Ajit  Singh, have  the protection of Article 105(2) and are not   answerable  in a  court of  law  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 105(2).      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  on  the  non- confidence motion  and, therefore, not having the protection of Article  105(2). The  charge against  the  alleged  bribe givers of  conspiracy and agreement with Ajit Singh to do an unlawful act would, therefore, proceed.      Mr.  Rao   submitted  that  since,  by  reason  of  the provisions of  Article 105(2), the alleged  bribe takers had committed no  offence, the  alleged bribe  givers  had  also committed no  offence. Article  105(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 member of Parliament shall not be answerable in a court of law  for something that has a nexus to his speech or vote in 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.      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 alleged bribe givers had, therefore, to be quashed. There is in the  contention a  misconception. Article 105(2) does not state that  the member  of Parliament  who is  not liable to civil or  criminal proceedings  in Parliament. Parliament in India is not a Court of Record. It may not exercise judicial powers or  entertain judicial  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  in  respect  of  the  same charges.      Mr. Rao  submitted that  the alleged  bribe givers  had breached Parliament’s  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  bribe  givers  do  not.  The  criminal  prosecution

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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).      Relevant to  the submission  on Article  105(3) is  the judgement in  Ex Parte  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  affidavit in  support of the complaint stated  that  he  had  given  to  Earl  Russell  a petition addressed  by him to the House of Lords, which 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 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 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;  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, 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 the matter brought before the magistrate does not establish facts upon which an indictment could be  preferred 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 information then charges that Earl Russell, Lord Chelmsford, and the Lord Chief Baron agreed to deceive the  House of  Lords 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 were  made, in  the House  of Lords.  I think, therefore,  that the  magistrate, looking at this and

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the rest  of the information, was warranted in coming to the conclusion, that  Mr. Wason charged and proposed to make the substance of  the indictment,  that these  three persons did conspire to deceive the House of Lords by statements made in the House  of Lords  for  the  purpose  of  frustrating  the petition.   Such a charge could not be maintained in a court of law.   It  is clear  that statements  made by  members of either House  of Parliament  in their  places in  the House, though they might be untrue to their knowledge, could not be made  the  foundation  of  civil  or  criminal  proceedings, however injurious  they might  be to the interest of a third person. And  a conspiracy to  make such statements would not make the  persons guilty  of it  amenable  to  the  criminal law..............".   Blackburn, 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  knowledge of  the persons   making  them. I entirely concur in  thinking that the information did only  charge an agreement to   make  statements in  the House  of Lords, and therefore did  not charge  any indictable offence". 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 not  to allow  it to  be doubted for a moment that the motives or  intentions of  members of either House cannot be inquired  into  by  criminal  proceedings  with  respect  to anything they may do or say in the House".      As we  read Ex  Parte 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  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 of law with 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 beheld. In contrast, all the three alleged conspirators in Ex parte Wason were members of Parliament and  what was  alleged against them was that 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 immune from  prosecution by  reason of Article 105(2) itself and no  occasion would  arise ton  look into  the privileges enjoyed by  the House  of Commons  under Article  105(3). 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 constitute the  offence must  also constitute  a  breach  of Parliament’s privilege 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

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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 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  (197)   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 contained in  the 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 Singh’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  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 "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.  But this  rule is  not without exception, and both  the rule and the exception will 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 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 the offence, and  the adequacy  or inadequacy  of the penalties, somewhat   lacking    in   flexibility,   which   it   could inflict........In cases  of breach  of privilege  which  are also offences  at law,  where the punishment which the House has power  to inflict  would not be adequate to the offence, or where  for any  other  cause  the  House  has  thought  a proceeding at law necessary, either asa a 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      Member as  regards criminal  law in      respect of anything said as part of      proceedings in Parliament, there is      more doubt  whether  criminal  acts      committed  in  Parliament    remain

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    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 that  it might  legally      have   been   so   determined   was      admitted by  one of the manager for      the commo ns 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   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.           In  such  cases,  it  will  be      essential to  determine  where  the      alleged  criminal   act  stands  in      relation to  he 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      heldto be  justified on  committing      the  assault   with  which  he  was      charged, since  it was committed in      Parliament,  in  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  committed   by  a      Member, however, could form part of      the proceedings of the House, Apart      from Eliot’s case 350 years ago, no      charge against  a Member in respect      of an  allegedly  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   of    the   penalties,

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    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  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 105(3). Secondly, Article 105(@) provides for the sum total of the privileges and immunity that attach to what is said  in Parliament  and to  votes given Therein. Article 105(3) are,  therefore, not  attached and they do not render assistance to the alleged bribe givers. Prevention of Corruption Act, 1988      In consider in 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  were, upon  a clean slate. Some  reference to  the provisions of the said Act is necessary at the threshold. 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 publice servant thus:      "(c) "public servant" means      (i) any  person in  the service  or      pay   of    the    Government    or      remunerated by  the  Government  by      fees   or    commission   for   the      performance of any public duty;      (ii) any  person in  the service or      pay of a corporation established by      or under  a Central,  Provincial or      State Act,  or an  authority   or a      body owned  or controlled  or aided      by the  Government or  a Government      company as  defined in  Section 617      of the  Companies Act,  1956 (1  of      1956);      (iv)  any   Judge,  including   any      person   empowered    by   law   to      discharge, whether   by  himself or      as a member of any body of persons,      any adjudicatory functions;      (v)  any  person  authorised  by  a      court of  justice  to  perform  any      duty,  in   connection   with   the      administration     of      justice,      including a liquidator, receiver or      commissioner  appointed   by   such      court;      (vi) any arbitrator or other person      to whom  any cause  or   matter has      been  referred   for  decision   or      report by  a court or justice or by      a competent public authority;      (vii)  any   person  who  holds  an      office by  virtue of  which  he  is      empowered  to   prepare,   publish,      maintain  or  revise  an  electoral

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    roll or  to conduct  an election or      part of an election;      (viii)  any   person  who   is  the      president,   secretary   or   other      office-bearer   of   a   registered      cooperative  society   engages   in      agriculture,  industry,   trade  or      banking,   receiving    or   having      received any financial aid from the      Central  Government    or  a  State      Government or from any  corporation      established by  or under  a Central      Provincial or  State  Act,  or  any      authority   or    body   owned   or      controlled   or    aided   by   the      Government or  a Government company      as defined  in Section  617 of  the      Companies Act, 1956 (1 of 1956);      (x) any  person who  is a chairman,      member or  employee of  any Service      Commission or  Board,  by  whatever      name called,  or a   member  of any      selection  committee  appointed  by      such Commission  or Board  for  the      conduct  of   any  examination   or      making any  selection on  behalf of      such Commission or Board.      (xi) any  person  who  is  a  Vice-      Chancellor   or   member   of   any      governing body,  professor, reader,      lecturer or  any other  teacher  or      employee, by  whatever  designation      called, of  any University  and any      person  whose  services  have  been      availed of  by a  University or any      other    public     authority    in      connection    with    holding    or      conducting examinations;      (xii) any  person who is an office-      bearer  or   an  employee   of   an      educational,  scientific,   social,      cultural, or  other institution, in      whatever    manner     established,      receiving or  having  received  any      financial   assistance   from   the      Central  Government  or  any  State      Government,  or   local  or   other      public authority.      Explanation 1.  -  Persons  falling      under any  of the above sub-clauses      are   public    servants,   whether      appointed  by   the  Government  or      not.      Explanation 2. - Wherever the words      "public servant"  occur, they shall      be understood  of every  person who      is  in  actual  possession  of  the      situation  of   a  public  servant,      whatever legal  defect there may be      in   his   right   to   hold   that      situation." Section 19 of the said Act deals withe the previous sanction that is necessary for prosecution for the offences mentioned therein. It read thus:"      "19.  Previous  sanction  necessary

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    for prosecution.  -  (1)  No  court      shall take cognizance of an offence      punishable under  Sections  7,  10,      11, 13  and 15 alleged to have been      committed  by   a  public  servant,      except withe the previous sanction,           (a) in  the case  of a  person      who is  employed in connection with      the affairs of the Union and is not      removable from  his office  save by      or with the sanction of the Central      government, of that Government;           (b) in  the case  of a  person      who is  employed in connection with      the affairs  of a  State and is not      removable from   his office save by      or with  the sanction  of the State      Government,  of that Gpvernment.           (c) in  the case  of any other      person, of  the authority competent      to remove him from his office.           (2)  Where   for  any   reason      whatsoever any  doubt arises  as to      whether the  previous  sanction  as      required  under   sub-section   (1)      should  be  given  by  the  Central      Government or  the State Government      or  any   other   authority,   such      sanction shall  be  given  by  that      Government or authority which would      have been  competent to  remove the      public servant  from his office oat      the  time   when  the  offence  was      alleged to have been committed.           (3)  Notwithstanding  anything      contained in  the Code  of Criminal      Procedure, 1973 (2 of 1974), -           (a) no  finding,  sentence  or      order passed   by  a Special  Judge      shall be  reversed or  altered by a      court in  appeal,  confirmation  or      revision  on   the  ground  of  the      absence of,  or any error, omission      or irregularity  in,  the  sanction      required   under    sub-section(1),      unless  in   the  opinion  of  that      court, a  failure of justice has in      fact been occasioned thereby;           (b) no  court shall  stay  the      proceedings under  this Act  on the      ground of  any error,  omission  or      irregularity   in    the   sanction      granted by  the authority  , unless      it is  satisfied that  such  error,      omission   or    irregularity   has      resulted in a failure of justice;           (c) no  court shall  stay  the      proceedings under  this Act  or any      other ground  and  no  court  shall      exercise the  powers of revision in      relation to any interlocutory order      passed  in   any  inquiry,   trial,      appeal or other proceedings.           (4) In  determining under sub-      section (3) whether the absence of,

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    or   any    error,   omission    or      irregularity in,  such sanction has      occasioned or resulted in a failure      of justice  the  court  shall  have      regard  to  the  fact  whether  the      objection  could  and  should  have      been raised at any earlier stage in      the proceedings.      Explanation. -  For the purposes of      this section, -           (a) error  includes competency      of the authority to grant sanction;           (b) a  sanction  required  for      prosecution includes  reference  to      any    requirement     that     the      prosecution   shall   be   at   the      instance of  a specified  authority      or with   sanction  of a  specified      person  or  any  requirement  of  a      similar nature. 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 10 sets out the punishment for abetment by a public  servant of  offences defined  in Section  8 or  9. Section 11 defines the offence of a public servant obtaining a valuable  thing,  without  consideration,  from  a  person concerned in  a proceeding  or business  transacted by  such public servant, and the penalty therefor. Section 13 defines the offence  of criminal  misconduct by a public servant and the penalty therefor. Section 15 sets out the punishment for an attempt  to commit an offence under Section 13 (1) (c) or (d).      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(1)(d)  and  Section 13(2) of the said Act. (We do not here need to deal with the offence under  Section 293  of the  Indian Penal  Code  with which some  of the  accused are  charged). These  provisions read thus:      "Section 120-B (of the Indian Penal      Code).   Punishment   of   criminal      conspiracy.  -  (1)  Whoever  is  a      party to  a criminal  conspiracy to      commit an  offence punishable  with      death,  imprisonment  for  life  or      rigorous imprisonment for a term of      two years  or upwards, shall, where      no express provision is made in the      Code for  the punishment  of such a      conspiracy, be punished in the same      manner as  if he  had abetted  such      offence.           (2) Whoever  is a  party to  a      criminal conspiracy  other  than  a      criminal conspiracy  to  commit  an      offence  punishable   as  aforesaid      shall be punished with imprisonment      of either  description for  a  term      not exceeding  six months,  or with      fine or with both.      Section 7 (of the said Act). Public      servant taking  gratification other      than legal  remuneration in respect      of  an  official  act.  -  Whoever,

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    being, or  expecting to be a public      servant,  accepts   or  obtains  or      agrees to  accept  or  attempts  to      obtain from  any person for himself      or  for   any  other   person,  any      gratification whatever,  other than      legal 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,      favoure or  disfavour to any person      or for  rendering or  attempting to      render any service or disservice to      any  person,   with   the   Central      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 other wise , shall be punishable      with imprisonment  which  shall  be      not less  than six months but which      may extend  to five years and shall      also be liable to fine.      Explanations. -  (a) "Expecting  to      be a  public servant."  If a person      not  expecting   to  be  in  office      obtains    a    gratification    by      deceiving others into a belief that      he is  about to  be in  office, and      that he  will then  serve them,  he      may be  guilty of cheating,  but he      is  not   guilty  of   the  offence      defined in this section.           (b) "Gratification."  The word      "gratification" is  not  restricted      to pecuniary  gratifications or  to      gratifications estimable in money.           (c) "Legal remuneration."  The      words "legal  remuneration" are not      restricted to  remuneration which a      public servant can lawfully demand,      but include  all remuneration which      he is  permitted by  the Government      or  the   organisation,  which   he      serves, to accept.           (d) "A  motive or  reward  for      doing." A  person  who  receives  a      gratification as a motive or reward      for doing  what he  does not intend      or is   not in a position to do, or      has not  done,  comes  within  this      expression.           (e)  Where  a  public  servant      induces  a  person  erroneously  to      believe that his influence with the      Government has obtained a title for      that person  and thus  induces that      person to  give the public servant,      money or any other gratification as      a reward  for  this  services,  the      public  servant  has  committed  an      offence under this section.

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    Section 12. Punishment for abetment      of offences defined in section 7 or      11  -  Whoever  abets  any  offence      punishable  under   Section  7   or      Section  11  whether  or  not  that      offence is committed in consequence      of   that    abetment,   shall   be      punishable with  imprisonment for a      term which  shall be  not less than      six months  but which may extend to      five years and shall also be liable      to fine.      Section 13.  Criminal misconduct by      a public  servant. -  (1) A  public      servant  is   said  to  commit  the      offence of criminal misconduct, -           (a) if  he habitually  accepts      or obtains  or agrees  to accept or      attempts to  obtain from any person      for himself or for any other person      any gratification  other than legal      remuneration as  a motive or reward      such as  is mentioned in Section 7;      or           (b) if  he habitually  accepts      or obtains  or agrees to accepts or      attempts to  obtain for  himself or      for any  other person, any valuable      thing without  consideration  which      he knows  to be inadequate from any      person whom  he knows to have been,      or to  be, or  to be  likely to  be      concerned  in   any  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      subordinate,  or  from  any  person      whom he  knows to  be interested in      or related  to the person so to do;      or           (c)  if   the  dishonestly  or      fraudulently   misappropriates   or      otherwise converts  for his own use      any property  entrusted to  him  or      under  his   control  as  a  public      servant or  allows any other person      so to do; or(d) if he, -           (i)  by   corrupt  or  illegal      means,   obtains for himself or for      any other person any valuable thing      or pecuniary advantage; or           (ii) by  abusing his  position      as a  public servant,  obtains  for      himself or for any other person any      valuable   thing    or    pecuniary      advantage; or           (iii) while  holding office as      a public  servant, obtains  for any      person  any   valuable   thing   or      pecuniary  advantage   without  any      public interest; or           (e) if he or any person on his      behalf, is in possession or has, at

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    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      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 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 not less than 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 Statements of Objects and Reasons reads thus:           "Statement   of   Object   and      Reasons -  1. The  Bill is intended      to   make    the   existing   anti-      corruption   laws more effective by      widening  their   coverage  and  by      strengthening the provisions.           2.    The     Prevention    of      Corruption act,  1947, was  amended      in   1964    based    on        the      recommendations  of  the  Santhanam      Committee. There  are provisions in      Chapter IX of the Indian Penal Code      to deal  with public  servants  and      those  who  abet  them  by  way  of      criminal misconduct. There are also      provisions  in   the  Criminal  Law      Amendment   Ordinance,   1944,   to      enable  attachment   of  ill-gotten      wealth  obtained   through  corrupt      means, including  from  transferees      of such  wealth. The  Bill seeks to      incorporate  all  these  provisions      with modifications  so as  to  make      the provisions  more  effective  in      combating corruption  among  public      servants.           3.  The   Bill,  inter   alia,      envisages widening the scope of the      definition   of    the   expression      "public servant",  incorporation of      offences under Sections 161 to 165-      A  of   the  Indian   Penal   Code,      enhancement of  penalties  provided      for     these      offences     and      incorporation of  a provision  that      the  order   of  the   trial  court      upholding the grant of sanction for      prosecution would  be final  if  it

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    has not already been challenged and      the trial  has commenced.  In order      to   expedite    the   proceedings,      provisions for day-to-day trial  of      cases  and  prohibitory  provisions      with regard  to grant  of stay  and      exercise of  powers of  revision on      interlocutory orders have also been      included.           4.  Since  the  provisions  of      Sections   161    to   161-A    are      incorporated   in    the   proposed      legislation   with    an   enhanced      punishment it  is not  necessary to      retain those sections in the Indian      Penal  Code.  Consequently,  it  is      proposed to  delete those  sections      with    the     necessary    saving      provision.           5.  The   notes   on   clauses      explain in detail the provisions of      the Bill."      In the  1947 Act  the definition of "public servant" in the Indian  Penal Code was adopted, Section 21 whereof reads as follows:           21. "Public  servant".  -  The      words  "public  servant"  denote  a      person falling  under  any  of  the      descriptions hereinafter following,      namely:           First.  -   [Repealed  by  the      Adaptation   of    Lawsorder,1950.]           Second. -  Every  Commissioned      Officer in  the Military,  Naval or      Air Forces of India;           Third. - every Judge including      any  person  empowered  by  law  to      discharge, whether by himself or as      a member of 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, authenticate, or      keep  any   document,  or  to  take      charge or  dispose of any property,      or to execute any judicial process,      or to  administer any  oath, or  to      interpret, or  to preserve order in      the   Court,   and   every   person      specially authorised  by a court of      Justice  to  perform  any  of  such      duties;           Fifth.   -    every   juryman,      assessor, or  member of a panchayat      assisting a  Court  of  Justice  or      public servant;           Sixth. -  Every arbitrator  or      other person  to whom  any cause or      matter  has   been   referred   for      decision or  report by any Court of      Justice, or  by any other competent

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    public authority;           Seventh. -  Every  person  who      holds any office by virtue of which      he is  empowered to  place or  keep      any person in confinement;           Eighth. - Every officer of the      Government whose  duty  it  is,  as      such officer,  to prevent offences,      to give information of offences, to      bring offenders  to justice,  or to      protect the  public health,  safety      or convenience;           Ninth. -  Every officer  whose      duty it  is, as  such  officer,  to      take, receive,  keep or  expend any      property  on      behalf   of   the      Government, or  to make any survey,      assessment or contract on behalf of      the Government,  or to  execute any      revenue-process, or to investigate,      or  to   report,  on   any   matter      affecting the  pecuniary  interests      of  the  Government,  or  to  make,      authenticate or  keep any  document      relating to the pecuniary interests      of the  Government, or  to  prevent      the infraction  of any law  for the      protection,   of    the   pecuniary      interests of the Government;           Tenth. -  Every officer  whose      duty it  is, as  such  officer,  to      take, receive,  keep or  expend any      property, to  make  any  survey  or      assessment or  to levy  any rate or      tax for  any secular common purpose      of any  village, town  or district,      or to  make, authenticate   or keep      any document  for the  ascertaining      of the  rights of the people of any      village, town or district;           Eleventh. -  Every person  who      holds any office in virtue of which      he   is   empowered   to   prepare,      publish,  maintain   or  revise  an      electoral roll  or  to  conduct  an      election or part of an election;           Twelfth. - Every person -           (a) in the service   or pay of                the     Government     or                remunerated  by  fees  or                commission    for     the                performance of any public                duty by the Government;           (b) in the service or pay of a                local    authority,     a                corporation   established                by or  under  a  Central,                Provincial or  State  Act                or a  Government  company                as defined in Section 617                of  the   Companies  Act,                1956 (1 of 1956)." Section 6  of the  1947 Act dealt with the previous sanction necessary for prosecution. It read thus :           "6.     Previous      sanction

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    necessary for  prosecution. -   (1)      No court  shall take  cognizance of      an offence punishable under Section      161 or  Section 164  or section 165      of the  Indian Penal  Code   (45 of      1860), or under sub-section (3A) of      Section 5  of this  Act, alleged to      have been  committed  by  a  public      servant, except  with the  previous      sanction.      (a) in  the case of a person who is      employed  in  connection  with  the      affairs of  the Union  and  is  not      removable from  his office  save by      or with the sanction of the Central      Government,    of    the    Central      Government;      (b) in  the case of a person who is      employed  in  connection  with  the      affairs  of  a  State  and  is  not      removable from  his office  save by      or with  the sanction  of the State      Government;      (c)  in   the  case  of  any  other      person, of  the authority competent      to remove him from his office.           (2)  Where   for  any   reason      whatsoever any doubt arises whether      the previous  sanction as  required      under  sub-section  (1)  should  be      given  by   the  Central  or  State      Government or  any other authority,      such sanction  shall  be  given  by      that Government  or authority which      would have been competent to remove      the public  servant from his office      at the  time when  the offence  was      alleged to have been committed."      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.      Mr. P.P.  Rao submitted  that a  Constitution Bench had 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   public  duty   was  erroneous   and  required reconsideration. The  expression ’public  duty’  in  Section 2(b) of  the said  Act meant  a duty  in the  context  of  a interest which  could be  enforced at  law. A mandamus could not issue  to a  member of Parliament or a member of a State legislature  to  perform  his  duty  for  he  could  not  be compelled to  speak or  to vote. It was permissible to refer to the  speech in  Parliament of the Minister who had  moved the Bill  that became  the  said  Act.  He  had  stated,  in response to  a question  about the  position of  a member of Parliament or  a member  of a  Legislative Assembly  , thus: "............We have not done anything different or contrary to the  law as  it stands today. Under the law, as it stands today, the  Supreme Court  has held in 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 supposed by the fact that two  conditions had to be satisfied for the purposes of bringing someone within the purview of the said Act, namely, that he  should be  a public  servant (Section  2) and there

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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 vs. 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 competent  to remove  members of  Parliament  from their office.  This had  also been  found by the Orissa High Court in Habibullah Khan vs. State of Orissa, (1993) Cr.L.J. 3604. A   member  of Parliament  and a  member  of  a  State legislature did  not hold  an office. Section 2 (c)(viii) of the  said   Act  postulated   the  existence  of  an  office independent of  the person holding it, and that by virtue of the office, the holder was authorised or required to perform a public  duty. That  a member of Parliament did not hold an office was  apparent  from  the  Constitution.  Whereas  the Constitution   spoke of other functionaries holding offices, members  of  Parliament  were  said  to  occupy  seats.  The conclusion, therefore,  was  inescapable  that  the  accused could not  be prosecuted  under the said Act and the charges had to be quashed. Mr. D.D. Thakur echoed these submissions. He added  that it  was legally  permissible,    but  morally impermissible, for  a legislator   to  vote in  exchange for money. The  clauses of  Section 2(c)  had to  be constructed ejusdem generis  and, so  read, could  not cover  members of Parliament or  the State  legislatures. Having regard to the he 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 legislatures, it could   not be argued on behalf of the  Union Government, by reason of  the principle  of promissory  estoppel, that  the said  Act  covered  members  of  Parliament  and  the  State legislatures. The  said Act  only removed  the surplusage in the then  existing definition of "public servant" and had to be construed only in that light. The inclusion of members of Parliament in  the said  Act was  not "clearly implicit" nor "irresistibly  clear."  A  member  of  Parliament  had  only privileges given  to him  under the  Constitution; his  only obligation was to remain present for a given number of days. Mr. 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  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  defined in Blacks Law  Dictionary (Sixth  edition, pg  1082) thus, "the right, authority,  and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the  pleasure  of  the  creating  power,  an  individual  is invested with  some portion  of the  sovereign functions  of government for  the benefit of the public. An agency for the state, the  duties of which involve in their performance the exercise of some portion of sovereign power, either great or small." The  Shorter Oxford  Dictionary (page  1083) defined "Office" thus,  "A position  to  which  certain  duties  are attached, esp.  a place of trust, authority or service under constituted authority."  In 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".

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That a  member of 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 provided the  number of seats for members of Parliament. The tenure of  a member  of Parliament  was fixed. He received a salary  and   other  allowances.   It  was  clear  from  the Constitution that  he performed public duties. The oath that he took  referred to his obligation to "faithfully discharge the duty"  upon which  he was  about to  enter. The  Salary, Allowances and  Pension of  Members of Parliament Act, 1954, specified that  a  member  of  Parliament  was  entitled  to receive a salary per mensem "during the whole of his term of office" and  an allowance  per day  "during  any  period  of residence  on   duty"  .  The    accused,  other  than  D.K. 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 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  which  was  competent  to remove him.  Where, as in the case of a member of Parliament or a  State legislature,  there was  no authority  which was competent to  remove a  public servant,  the  provisions  of section 19  were not  attracted and  a prosecution  could be launched and  taken cognizance of without previous sanction. Alternatively,  the   authority  to  remove  a    member  of Parliament was the President under the provisions of Article 103 of the Constitution.      There can be no doubt that the coverage of Section 2(c) of the  said Act is far wider than that of Section 21 of the Indian penal   Code.  The two  provisions have  only  to  be looked at side by side to be sure that  more people can  now be called  public servants  for the  purposes of  the  anti- corruption law. There is, therefore,  no reason at all why Section   2(c)  of the said Act should be construed only in the  light of  the existing law and not on its own terms. It is  for the  Court to construe Section 2(c). If the Court comes to  the conclusion  that members of Parliament and the State legislatures  are clearly   covered  by its  terms, it must  so  hold.  There  is  then  no  reason  to  resort  to extraneous aids  of interpretation such as the speech of the Minister piloting  the Bill  that became  the said  Act. The true interpretation  of a  statute does  not depend upon who urges it.  The  principle  of  promissory  estoppel  has  no application in  this behalf. Further., if the court comes to the conclusion,  based on  Section 2(c) itself, that members of Parliament and the State legislators are, clearly, 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).      A public servant is "any person who holds an office  by virtue of which he is authorised or  required to perform any public duty."  Not only,  therefore, must the person hold an office but  he must   be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section  2(b) of  the said  Act to  mean "a  duty in  the discharge of  which the  State, the public or that community at large  has an interest." In a which the State, the public

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or  that    community  at  large  has  an  interest."  In  a democratic  form   of  Government  it  is  the    member  of Parliament or  a State legislature who represents the people of his  constituency in the highest law making bodies at the Centre and  the State  respectively. Not  only is  he    the representative of  the people  in the  process of making the laws  that   will  regulate   their  society,  he  is  their representative in  deciding how the funds of the  Centre and the States shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this  or of  a duty  in which the State, the public and the community  at large  would have  greater   interest. The submission that this Court was in error in 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  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  the better to  perform their  duty of effectively and fearlessly representing their constituencies.      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:           21. The words ’public servant’      denote a  person falling  under any      of  the   descriptions  hereinafter      following, namely:           Third- Every  Judge  including      any  person  empowered  by  law  to      discharge, whether   by  himself or      as  a   member  of,   any  body  of      persons,      any      adjudicatory      functions.           Seventh  -  Every  person  who      holds any office by virtue of which      he is  empowered to  place or  keep      any person in confinement.           Twelfth - Every person -           (a) in  the  service or pay of      the Government  or  remunerated  by      fees   or    commission   for   the      performance of  any public  duty by      the Government." This Court  held that a member of a Legislative Assembly did not satisfy  the ingredients  of  these  clauses  and  that, therefore, he was not a public servant within the meaning of that expression  in Section  21 of the Indian Penal Code. It was in   this  context that this  Court made the observation that we  have already quoted. Having regard to the fact that there was  no clause  in section 21 of the Indian Penal Code which  is  comparable to Section 2(c)(viii) of the said Act, the decision  in Antulay’s  case is  of little assistance in this context.      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

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said  Act.   Paragraphs  5,7,8   and  9   of  the  principle judgment are relevant. ***ney read thus:           "5. For  the aforesaid  clause      to be  attracted, two  requirements      must be  satisfied; (i)  an  M.L.A.      must hold  an office:  and (ii)  he      must perform  public duty by virtue      of holding that office. The meaning      of the  word ’office’  has been the      subject-matter of various decisions      of the  apex Court and Shri Rath in      his written  note   dated 27-4-1993      has dealt  with these  decisions in      pages 6  to 12,  in which reference      has been  made to what was held  in      this regard  in (1)   Maharaj  Shri      Govindlal Jee  Ranchhodlal  jee  v.      C.I.T., Ahmedabad, 34 ITR 92 : (AIR      1959 Bom  100) (which is a judgment      of Bombay  High Court  rendered  By      Chagla,  C.J.);  (2)  Champalal  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 1968 SC 1495: (1968 Lab IC      1525) which  is a  rendering  by  a      Constitution  Bench   stating   "an      office  means   no  more   than   a      position to  which  certain  duties      are attached";  (4) Kanta  Kathuria      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      English  Dictionary,  but  the  one      taken as  most  relevant  was  "(a)      position or place to which certain,      duties are attached, especially one      of more  or less public character";      whereas Sikri,  J, speaking for the      majority referred to the definition      given by  Lord Atkin,  which was "a      subsisting  permanent,  substantive      position   which had  an  existence      independent  of   the  person   who      filled it,  which went  on and  was      filled in  succession by successive      holders" by  further  stating  that      there was  no essential  difference      between the  definitions  given  by      Lord Wright  and  Lord  Atkin:  and      (5) Madhukar  v. Jaswant,  AIR 1976      SC 2283,  in which  the  definition      given in  the Stateman’s  case  was      quoted with approval.

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         xxx           xxx      xxx           7.    Shri     Das,    learned      Government   Advocate,   does   not      contest the submission of Shri Rath      that the word ’office’ should mean,      to repeat,  no more than a position      to   which   certain   duties   are      attached,  specially  of  a  public      character". Let  it be  seen as  to      whether  the   test  mentioned   by      Sikri, J,  is satisfied,  which, as      already   noted, is that there must      be   an    office   which    exists      independently of the holder of that      office. To  substantiate this  part      of his  submission, Shri  Rath  has      referred in  his written note first      to Article  168 of the Constitution      which has  proved 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   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  than made  to certain      provisions of the Representation of      the People  Act,  1950,  which  has      provided for  total number of seats      in the Legislative Assembly, and so      far as  Orissa  is  concerned,  the      Second Schedule  mentions that  the      Orissa Legislative  Assembly  shall      consist of 147 members.           8. Relying  on  the  aforesaid      provisions,  it  is  contended  and      rightly,  by  Shri  Rath  that  the      office of  the 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 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

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    same by stating that an M.L.a. does      hold an office, which is one of the      two   necessary   requirements   to      attract the  definition of  "public      servant", as given in clause (viii)      of the Act. Another requirement, as      already mentioned,  is  performance      of public  duty as  holder of  such      office. This  aspect has been dealt      with by Shri Rath in paragraph 7 of      his written  note  wherein  mention      has    been    made  about  various      duties attached   to  the office of      the M.L.A.,  as would  appear  from      Chapter  III  of  Part  VI  of  the      Constitution  -   the  same  being,      making of  laws, acting  conjointly      to    effectively    control    the      activities   of    the   executive,      approval of  the finance bill, etc.      Indeed, no doubt can be entertained      in this  regard in view of what was      stated in paragraph 59 of Antulay’s      case, which is as below:-           ".....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      directed by  the Government  or for      the   Government.   He   no   doubt      performs public duty cast on him by      the    Constitution     and     his      electorate.  He   thus   discharges      constitutional functions....."" Having held  that a  member of  a Legislative assembly was a public servant  under the  said Act,  the Orissa  High Court went on  to consider  which authority  was competent to give sanction for  his prosecution.  That is an aspect with which we are not immediately concerned and we shall revert to this judgment later.      We think that the view of the Orissa High Court that  a member of  a Legislative  Assembly is  a public  servant  is correct. Judged  by the  test enunciated by Lord Atkin in Mc Millan v. Guest and adopted by Sikri, J, in 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, by  the successful  candidate in  the election for the constituency. When  the legislative term is over, the seat is filled by the successful candidate at the  next  election. There  is, therefore, no doubt in our minds that a  member of  Parliament, or of a Legislative Assembly, holds an  office and  that he  is  required  and  authorised thereby to  carry out  a public duty. In a word, a member of Parliament, or  of  a  Legislative  Assembly,  is  a  public servant for the purposes of the said Act.      This brings  us to  the issue  of  sanction  under  the provisions of  Section 19  of the  said Act. The Section has been quoted,  Sub-section (1) opens with the words "No court shall  take   cognizance  of  an  offence  punishable  under

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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 order words, if any public  servant is  charged with  an offence  punishable under the  aforesaid sections,  the  court  shall  not  take cognizance in  the absence  of sanction.  That  the  Section applies to all public servants  is also clear from the three clauses of sub-section(1). Clause (a) says that the sanction must be  of the  Central Government  in the case of a public servant who  is employed  in connection  with the affairs of the Union  and is  not removable from his  office save by or with the   sanction  of the  Central Government.  Clause (b) says that  the sanction must be of a State Government in the case of  a public servant who is employed in connection with the affairs   of  that State  and is  not removable from his office save by or with the consent of that State Government. Clause (c)  says that  the sanction in the case of any other public servant  must be of the authority competent to remove him from   his  office. Clause  (c) is the basket into which all public  servants, other  than those covered by the terms of clauses (a) and (b), fall      Upon the  plain language  of sub-section (1) of Section 19, analysed  above, the  argument of  the learned  Attorney General that  the provisions  of Section  19 are  applicable only to a public servant who is removable from his office by an authority competent to do so must fail.      In  support  of  the  argument,  the  learned  Attorney General relied  upon the  judgment of  this  Court  in  S.A. Venkataraman vs. The State, 1958 S.C.R. 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  must      be committed  by a  public  servant      and the  other is  that that person      is employed  in connection with the      affairs of the Union or a State and      is not  removable from  his  office      save by or with the sanction of the      Central  Government  or  the  State      Government or  is a  public servant      who is  removable from  his  office      by any  other competent  authority.      Both  these  conditions    must  be      present to  prevent  a  court  from      taking  cognizance  of  an  offence      mentioned in  the  section  without      the  previous   sanction   of   the      Central  Government  or  the  State      Government   or    the    authority      competent  to   remove  the  public      servant from  his office. If either      of these conditions is lacking, the      essential   requirements   of   the      section are  wanting and provisions      of the  section do not stand in the      way of  a court  taking  cognizance

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    without a previous sanction." The appellant  was a  public servant  who had been dismissed from service  consequent upon  a departmental inquiry. After his dismissal  he was  charged with  the offence of criminal misconduct under  the 1947  Act and convicted. The appellant contended that  no court  could have taken cognizance of the charge against him because there was no prior sanction under Section 6 of the 1947 Act. This Court found, as aforestated, that for  the applicability  of Section 6 two conditions had to be  fulfilled, namely,  (i) the  offence should have been committed by a public servant and (ii) the public servant is removable from  his office  by the  Central Government  or a State Government   or a competent authority. This Court held that sanction  was not  a pre-requisite to the cognizance of the   offence with  which  the  appellant  was  charged  and conditions were  not satisfied  because, when  cognizance of the offence  was taken,  the appellant  had ceased  to be  a public servant.  That the appellant was a public servant was not in  dispute; that no sanction had been obtained was also not  in  dispute.  This  Court  was  not  concerned  with  a situation in  which there was a public servant but there was no authority  competent to  remove him  from his office. The observations of  this Court   quoted  above were made in the context of  the facts of the case and relative thereto. They cannot be  examined de hors the facts and read as supporting the proposition  that  the  provisions  of  Section  19  are applicable only  to a  public servant  who is removable from his office  by an authority competent to do so and, if there is no  authority competent  to remove  a public servant from his office,  the embargo  arising under  Section 19  is  not attracted and Section 19 does not come in the way of a court taking cognizance.  In any  event,  we  cannot,  with  great respect, agree  that  the  observations  fully  analyse  the provisions of  Section 19. We have set out above how we read it; as we read it, it applies to all who are public servants for the purposes of the said Act.      It is  incorrect to  say that  Section 19  contemplates that for  every public  servant there  must be  an authority competent to remove him from his office and that, therefore, the effort   must  be to  identify that authority. But if no authority can  be identified in the case of a public servant or a  particular category  of public servant, it cannot lead to the  conclusion that  was urged on behalf of the accused, namely, that  he is  not a  public servant  or this is not a category of  public servant  within the  meaning of the said Act. We  have  found,  based  on  the  language  of  Section 2(c)(viii)  read   with  Section   2(b),  that   members  of Parliament are public servants. That finding, based upon the definition  section,   must  apply  to  the  phrase  ’public servant’ wherever  it occurs  in the  said  Act.  It  cannot change if  it be found that there is no authority  competent to remove  members of  Parliament from  office.   Members of Parliament would,  then, not  be liable to be prosecuted for offences under  the said  Act other  than those  covered  by sections 7, 10, 11,13 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  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

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because  he  was  a  public  servant.  The  High  Court  was satisfied that  although "an  M.L.A. 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 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  the  purpose  of  previous sanction, the conclusion must be that where the  Court finds that there  is no  authority competent   to  remove a public servant,  that  public  servant  cannot  be  prosecuted  for offences punishable  under Sections 7,10,11,13 and 15 of the said Act  because there  is no  authority  that can sanction such prosecution.      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 1947 Act to a Judge of a High Court or the Supreme  Court. A  case under  the provisions of Section 5(2) read  with Section  5(1)(e) of  the 1947  Act had  been registered against  the appellant,  the Chief  Justice of  a High Court,  and on 28th February, 1976, an F.I.R. was filed in the  Court of  Special Judge.  The appellant  retired  on attaining the  age of  superannuation on 8th April, 1976. On 15th December,  1977 ,  a charge sheet was filed and process was issued  for appearance  of the  appellant. The appellant moved the  High Court  to quash  the proceedings.  The  High Court dismissed  the application  but granted certificate of fitness to  appeal. This  Court, by  a   majority, concluded that a  Judge of  a High  Court and  the Supreme Court was a public servant  within the  meaning of Section 2 if 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 unless  the Chief Justice of India was consulted. Such consultation was  necessary also  at the  stage of examining whether sanction  for prosecution  should be  granted, which should be guided by and in accordance with the advice of the Chief Justice  of India. Specifically, the majority view was that a  public servant  could  not  be  prosecuted  for  the offences specified  in Section  6 of  the 1947   Act  unless there was  prior sanction  for prosecution  from a competent authority. A  Judge of  the superior  courts  squarely  fell within the  purview of  the 1947 Act. The second requirement 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 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 accept  his contention  that the  provisions of Section 19 did not apply, there being no authority competent to remove  such member  from his  office. In other words, it

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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.      The passage in Veeraswamy’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  (1)   of   Section   6      exhaustively   provide    for   the      competent   authority    to   grant      sanction for prosecution in case of      all  the  public  servants  falling      within  the  purview  of  the  Act.      Admittedly, such  previous sanction      is a condition precedent for taking      cognizance of an offence punishable      under the  Act, of a public servant      who  is   prosecuted   during   his      continuance  in   the  office.   It      follows  that  the  public  servant      falling within  the purview  of the      Act must invariably fall within one      of the three clauses in sub-section      (1) of  Section 6.  It follows that      the  holder   of  an  office,  even      though    a     ’public    servant’      according to  the definition in the      Act, who  does not  fall within any      of the  clauses (a),  (b) or (c) of      sub-section (1)  of Section  6 must      hold to  be outside  the purview of      the   Act    since   this   special      enactment was  not enacted to cover      that category  of  public  servants      inspite or  the wide  definition of      ’public servant’  in the  Act. This      is the  only manner  in which these      provisions  of   the  Act   can  be      harmonized and  given full  effect.      The scheme  of the  Act is  that  a      public  servant   who  commits  the      offence of  criminal misconduct, as      defined in  the several  clauses of      sub-section(1) of  Section 5,   can      be punished in accordance with sub-      section (1)  of Section  5, can  be      punished in  accordance  with  sub-      section (2)  of  Section  5,  after      investigation of the offence in the      manner  prescribed   and  with  the      previous sanction  of the competent      authority obtained  under Section 6      of the  act in  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  an office  who      may be  a public  servant according

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    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  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  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 within the meaning   of  the definition,  he must  be taken to be a public servant  for the  purposes of  all provisions  in the statute in  which the expression ’public servant’ occurs. If therefore, a  person is found to satisfy the requirements of the definition  of a public servant, he must be treated as a public servant  for the  purposes of the sanction provision. In our  opinion, it  cannot be hold, as a consequence of the conclusion that  there is  no authority  competent to remove from office  a person  who falls  within the  definition  of public servant,  that he  is not a public servant within the meaning of  the statute.  Where a person is found to satisfy the requirements  of the definition of a public servant, the Court must,  as was  said by  the majority  in  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 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, so we should direct that no criminal prosecution  should   be  launched   against  a   member  of Parliament without  first consulting  the  Speaker.  As  the majority judgment makes clear, this direction was considered necessary to secure the independence of the judiciary and in the light  of the "apprehension that the Executive being the largest litigant  is likely  to abuse the power to prosecute the Judges."  Members  of  Parliament  do  not  stand  in  a comparable position.  They do  not have  to decide day after day disputes between the citizen  and the Executive. They do not need  the additional  protection that the Judges require to perform  their   constitutional duty  of decision  making without fear or favour.      Before  we   move  on   to  consider   the  alternative submission  of  the  Attorney  General,  we  must  note  the judgment in  S.A. Venkataraman  vs. The  State, 1958  S.C.R. 1040, upon which the learned Attorney General relied for his first proposition, namely, that the provisions of Section 19 do not apply to a public  servant in resect of whom there is

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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, he  was charged  with criminal misconduct under the 1947 Act and was convicted. The contention before this Court was that  the trial court could not have taken cognizance of the offence because no sanction for the prosecution had been produced before it. This Court held that no sanction for the prosecution of  the appellant  was required  because  he was not a  public servant  at the time cognizance of the offence was taken.  The following  passage in  this Court’s judgment was relied upon :           " It  was suggested  that  cl.      (c) in  s.6(1)  refers  to  persons      other than  those mentioned in cls.      (a)  and   (b).   The   words   "is      employed" are absent in this clause      which would,  therefore, apply to a      person  who  had  ceased  to  be  a      public servant  though he was so at      the time  of the  commission of the      offence.  Clause   (c)  cannot   be      construed   in    this   way.   The      expressions  "in   the  case  of  a      person" and  "in the  case  of  any      other  person"   must  refer  to  a      public servant having regard to the      first paragraph of the sub-section.      Clauses  (a)  and  (b),  therefore,      would cover  the case  of a  public      servant   who    is   employed   in      connection with  the affairs of the      Union  or   a  State   and  is  not      removable from  his office  save by      or with the sanction of the Central      Government or  the State Government      and cl.(c)  would cover the case of      any other   public  servant whom  a      competent  authority  could  remove      from his office. The more important      words  in   cl.  (c)  are  "of  the      authority competent  to remove  him      from his  office". A public servant      who  has  ceased  to  be  a  public      servant is  not a  person removable      from  any  office  by  a  competent      authority. Section  2  of  the  Act      states that  a public  servant, for      the purpose  of the  Act,  means  a      public servant  as defined  in s.21      of the Indian Penal Code. Under cl.      (c), therefore,  any one  who is  a      public servant  at the time a court      was asked  to take  cognizance, but      does   not    come    within    the      description  of  a  public  servant      under cls.  (a) and (b), is accused      of an  offence  committed by him as      a public servant as specified in s.      6 would  be entitled to rely on the      provisions  of   that  section  and      object to  the taking of cognizance      without a previous sanction." We do  not find  in the passage anything that can assist the Attorney General’s  submission; rather,  it is supportive of

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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  the  words,  to  prosecute  a  public servant the  prior sanction  of the  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  relation to members of State Legislatures are contained in  Articles 190,  191 and 192 under the same head in Chapter  III of  Part VI  of the  Constitution.) Articles 101, 102 and 103 read thus:      "101. Vacation  of seats,  - (1) No      person shall  be a  member of  both      Houses of  Parliament and provision      shall be  made by Parliament by law      for the vacation by a person who is      chosen   a member of both Houses of      his seat in one House or the other.      (2) No  person shall  be  a  member      both of  Parliament and  of a House      of the  Legislature of  a State and      if a person chosen a member both of      Parliament and  of a  House of  the      Legislature of  a State,  then,  at      the expiration  of such  period  as      may be  specified in  rules made by      the President,  that 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 -      (a) becomes  subject to  any of the           disqualifications mentioned in           clause (1)  or clause  (2)  of           article 102 or      (b) resigns  his  seat  by  writing           under his  hand  addressed  to           the Chairman or the Speaker as           the  case   may  be,  and  his           resignation is  accepted    by           the Chairman  or the  Speaker,           as the case may be,      his  seat  shall  thereupon  become      vacant:      Provided that  in the  case of  any      resignation to  in sub-clause  (b),      in  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      of genuine,  he  shall  not  accept      such resignation.      (4) If for a period of sixty days a      member   of    either   House    of      Parliament is without permission of      the House  absent from all meetings      thereof, the  House may declare his

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    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      adjourned  for   more   than   four      consecutive days.      102.     Disqualifications      for      membership. - (1) A person shall be      disqualified for  being chosen  as,      and for  being, a  member of either      House of Parliament -      (a) if  he  holds  any  offence  of      profit  under   the  Government  of      India or  the Government    of  any      State,   other   than   an   office      declared   by Parliament by law not      to disqualify its holder;      (b)  if  he  holds  any  office  of      profit  under   the  Government  of      India  or  the  Government  of  any      State,  other   than     an  office      declared by  Parliament by  law not      to disqualify its holder;      (b)  if   he  is   an  undischarged      insolvent;      (c)  if   he  is   an  undischarged      insolvent;      (d) if  he  is  not  a  citizen  of      India, or  has voluntarily acquired      the citizenship of a foreign State,      or is  under any acknowledgement of      allegiance  or   adherence   to   a      foreign State;      (e) if  he is so disqualified by or      under any  law  made by Parliament.      Explanation -  For the  purpose  of      this clause  a person  shall not be      deemed to  hold an office of profit      under the  Government of  India  or      the  Government  of  any  State  by      reason only  that he  is a Minister      either for  the Union  or for  such      State.      (2)A person  shall be  disqualified      for being  a member of either House      of   Parliament   if   he   is   so      disqualified   under    the   Tenth      schedule.      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 in  clause (1) of article      102, the question shall be referred      for the  decision of  the President      and his decision shall be final.           (2) Before giving any decision      on any such question, the President      shall obtain  the  opinion  of  the      Election Commission  and shall  act      according to such opinion.      By reason   of Article 101(3)(a), the seat of a  member

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of Parliament  becomes vacant  if he  becomes subject to the disqualifications   mentioned in  Article  102(1)  and  (2). Those disqualifications  are the  holding of  an  office  of profit under  the Union  or State  Government, other than an office declared  by Parliament  by law not to disqualify the holder; the  declaration by a competent court of unsoundness of mind;  undischarged  insolvency;  the  citizenship  of  a foreign State  or 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 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 Commission and has to act according to such opinion. The question  for our  purposes is whether, having regard to the terms  of Article 101, 102 and 103, the President can be said to  be the  authority competent  to remove  a member of Parliament from  his office.  It is  clear from  Article 101 that the  seat of  a member  of  Parliament  becomes  vacant immediately   upon    his   becoming    subject    to    the disqualifications, mentioned  in Article  102. without more. The removal  of a  member of  Parliament  is  occasioned  by operation of  law and  is self  operative.  Reference to the President under  Article 103  is required only if a question arises as  to whether a member of Parliament has earned such disqualification; that  is to  say, if  it is  disputed. The President would  then have  to decide  whether the member of Parliament   had    become   subject    to   the   automatic disqualification contemplated  by  Article  101.  His  order would   not remove the member of Parliament from his seat or office but  would declare  that he  stood  disqualified.  It would operate  not with  effect from  the date upon which it was made  but would  relate back  to the date upon which the disqualification was  earned. Without,  therefore, having to go into  the connotation  of the  word "removal"  in service law, it  seems clear that the President cannot be said to be the authority   competent  to remove a  member of Parliament from his office.      The Attorney  General submitted  that the scheme of the said Act,  as compared  to the  1947 Act,  had undergone  an important change  by reason  of  the  introduction  of  sub- section  (3)  in  Section  19.  Sanction  was  no  longer  a condition precedent.  A trial in the absence of sanction was not a  trial without  inherent jurisdiction  or a nullity. A trial without  sanction had  to be  upheld unless  there had been a  failure of  justice. This  feature  has  a  material bearing on  the present  case. The  trial  Court  had  taken cognizance of  the charges  against the accused and the High Court had  dismissed the  revision  petition  to  quash  the charges. In  the Light  of Section  19(3), this Court should not interdict  the charges,  particularly since  a complaint filed today  would not require sanction against  most of the accused. Having  regard to  the effect  of our findings upon the  accused,   it  is   not  necessary   to  consider  this submission.      We have,  as aforestated,  reached the  conclusion that members of  Parliament and the State legislatures are public servants liable to be prosecuted for offences under the said Act but  that they  cannot be  prosecuted for offences under Sections 7,  10, 11  and 13  thereof because  of want  of an authority competent  to grant sanction thereto. We entertain

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the hope  that Parliament will address itself to the task of removing this lacuna with due expedition. Conclusions.      We now  set down  the effect  upon the  accused of  our findings.      We have  held that  the alleged  bribe takers who voted upon the  no-confidence motion,  that is, Suraj Mandal Shibu Soren, Simon  Marandi, Shailender  Mehto,  Ram  Lakhan  Sing Yadav, Roshan  Lal, Anadicharan  Das, Abhay Pratap Singh and Haji Gulam  Mohammed (accused  nos. 3,  4, 5, 6, 16, 17, 18, 19, 20  and 21)  are entitled  to the  immunity conferred by Article 105(2).      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 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.      P.V. Narasimha Rao, Satish Sharma, V. Rajeswar Rao, Ram Linga Reddy, M. Veerappa Moily and Bhajan Lal(accused nos.1. 2 8,  10, 11  and 14)  were public  servants,   being either members  of   Parliament  or   a  State   legislature,  when cognizance of  the charges  against them was taken. They are charged with  substantive offences under Section 120B of the Indian Penal  Code and  Section 12 of the said Act. Since no prior sanction  is required  in respect  of the charge under Section 12 of the said Act, the trial on all charges against them must proceed.      Ajit Singh  (accused no.15) was a public servant, being member of Parliament, when cognizance of the charges against him was taken. He is charged with substantive offences under Section 120B  of the  Indian Penal  Code and  Section 7  and 13(2) of  the said  Act. The trial of the charge against him under Section 120B of the Indian Penal Code must proceed.      The appeals shall now be placed before a bench of three learned judges  for hearing, on any other points that may be involved, and final disposal.