No to Parliamentary Corruption

BRIBERY OF PARLIAMENTARIANS and legisla­tors to influence their behaviour in Parliament and state assemblies is nothing new. The infamous bribe-for-vote scam during the tenure of PV Narasimha Rao is a well-known example. Since then, there have been several scams that have surfaced where legislators were bribed to vote in one way or another. Then there have been cases where money has allegedly exchanged hands in the matter of asking questions in Parliament.

All that is probably at an end now. The Supreme Court’s judgment in the Sita Soren vs The Union of India case, delivered on March 4 has finally taken away the shield provided by Article 105(2) of the Constitution that until now allowed immunity from prosecution in such cases. Article 105 deals with the powers and privileges of Parliament, its members, and its committees. Article 105(2) says, among other things, that, “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof…” Article 194(2) is a cognate article that bestows similar privileges to members of state assemblies.

In the instant case, Sita Soren, a legislator in the Jharkhand As­sembly, was alleged to have been bribed to vote in favour of a par­ticular candidate in the elections to Rajya Sabha in 2012. The case opened a can of worms. Soren was alleged to have taken money but did not vote in favour of the candidate who had allegedly bribed her. The law, until the judgment, was that even if a leg­islator or an MP was bribed, Articles 105(2) and 194(2) protected them. This was based on the judgment of the Supreme Court in the PV Narasimha Rao case of 1998.

In many ways, the Narasimha Rao judgment was an incongruous piece of judicial interpretation. In that quar­ter-century-old decision, the majority concluded that the privileges of MPs were so extensive that they could not be questioned by courts even when there were charges of bribery. The court gave extremely wide amplitude to Article 105(2) of the Con­stitution. The same meaning was read into Article 194(2) which deals with the privileges of members of legislative assemblies. Sita Soren’s case fell under the preview of the latter article.

Even at that stage in 1998, the minority opinion of the court, echoed by Justice SC Agrawal, noted the incongruities in this interpretation. The judge noted, “An MP would be liable to be prosecuted for bribery if he accepted a bribe for not speaking or not giving his vote on a matter, but he would enjoy immu­nity if he accepted the bribe for speaking or giving his vote in a particular way and actually speaks or gives his vote in that manner. It is unlikely that the framers of the Constitution intended to make such a distinction.” It is interesting to note that in its judgment in the Sita Soren case, the Jharkhand High Court made an argument similfar to the first point.

The Supreme Court has undone that incongruous judgment and has taken an important step in cleansing the Augean stables of India’s parliamentary democracy. On paper, this is a welcome judgment as it helps cleanse the parlia­mentary system of a class of corrupt practices known to exist under the shield of Articles 105(2) and 194(2). These involve the use of ‘money power’ in the asking of parliamentary questions by MPs and, as the instant appeal showed, its use in elections for Rajya Sabha.

It is not that these problems were not known. The debate on codifying parliamentary privi­leges—something that would have helped check corrupt practices in different houses—has been around for a long time. Parliament never took the lead in codifying these privileges. In 2002, the National Commission to Review the Working of Constitution, led by former Chief Justice of India MN Venkatachaliah, recommend­ed the codification of privileges. The commission had specifically recommended that “Article 105(2) may be amended to clarify that the immunity enjoyed by members of Parliament under parliamentary privileges does not cover corrupt acts commit­ted by them in connection with their duties in the House or otherwise.” The commission further said, “Corrupt acts would include accepting money or any other valuable consideration to speak and/or vote in a particular manner. For such acts they would be liable for action under the ordinary law of the land.”

The only “safeguard” recommended by the commission was, “…no court will take cognisance of any offence arising out of a Member’s action in the House without prior sanction of the Speaker or the Chairman, as the case may be.”

These recommendations remain a dead letter some 22 years after they were made. In these decades, fractious govern­ments and even coherent parliamentary majorities did not lead to any codification until the Supreme Court stepped in and negatively delineated these privileges. While ending the shield provided until now by Articles 105(2) and 194(2), the Supreme Court, however, prised open a door for further judi­cial intervention in the matter of parliamentary privileges. In its judgment, the court said, “Whether a claim to privilege in a particular case conforms to the parameters of the Constitu­tion is amenable to judicial review.”

This is a consequence of Parliament not paying attention to the issue of codification. At the same time, “judicial review” is now a jemmy that can prise open any door irrespective of the separation of powers or other institutional boundaries. It is not too late, yet, for Parliament to deliberate on this matter and come up with a set of coherent practices that can then be coded. There are two problems at hand. The first one is the fractured nature of Indian politics where certain parties and individuals see the judiciary as a “counter-majoritarian institution” and don’t mind its intervention in matters that are not a part of its domain.

The other problem is the absence of any restraints in sections of Indian politics when it comes to the pursuit of political goals. The current debate is about the abuse of Articles 105(2) and 194(2). But it is not too hard to imagine even bigger abuses. For example, it is conceivable that sessions of legislatures may be con­vened for the specific purpose of evading courts and investigat­ing agencies. It is also conceivable that privileges under Articles 105(2) and 194(2) may be abused by using these freedoms to say things that would attract defamation and other criminal pro­ceedings if they were not uttered from the floor of a legislature.

Can these abuses be stopped, or at least reduced, if a code of privileges was in place? The pessimistic answer has to be that it is probably unlikely as politics will find a way to circumvent most barriers. But such a code may prove to be a long-run rem­edy. As Indians get more aware of such matters, the presence of such a code when contrasted with reckless political behaviour may end up persuading voters to make better choices. At the moment, this looks like an argument of despair. But if one looks at the span of Indian politics over the past four decades, many ills that were once considered incurable have been fixed. But for the moment, one can be sure that bribing MPs and legis­lators will now become more hazardous than before.

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