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Horsetrading & the law

delhi Updated: Jul 16, 2008 00:43 IST
Satya Prakash
Satya Prakash
Hindustan Times
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What is politically correct need not be legally correct as well. This is what former Prime Minister PV Narasimha Rao said about his government surviving a no-confidence motion in 1993 and the subsequent prosecution of several politicians, including him, in the JMM MPs bribery case.

Fifteen years after Rao saved his government by allegedly bribing Opposition MPs, PM Manmohan Singh faces a similar situation. CPI general secretary A.B. Bardhan has accused the Manmohan Singh government of indulging in horse-trading to reach the magic figure of 272 in the Lok Sabha.

The moot question

Can an MP voting in favour of the trust motion for monetary considerations be prosecuted?

According to Article 105(2) of the Constitution: “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, paper, votes or proceedings.”

Article 105(2) is aimed at ensuring a MPs’ “freedom of speech” and “right to vote” and giving them immunity from prosecution for anything said or any vote given in the House. But does it confer any immunity on an MP from being prosecuted in a criminal court for offer or acceptance of bribe?

The provision does not expressly cover the outside conduct of MPs. In fact, this is a kind of basic protection guaranteed to them in their official capacity and, ideally, it should not cover acts like taking bribe to vote in the House.

JMM bribery case ruling

However, a five-judge Constitution Bench of the SC that considered this question in the JMM MPs bribery case gave a strange verdict that defies constitutional logic and political morality.

By a majority of 3:2, the court in April 1998 held that the MPs who voted against the July 28, 1993, no-confidence motion after taking bribe were entitled to immunity from criminal prosecution under Article 105(2) and could not be tried for bribery and criminal conspiracy.

But it held that those MPs who accepted the bribe but chose to abstain were liable to prosecution. Ruling that the MPs were “public servants” within the meaning of the Prevention of Corruption Act, 1988, it held that the bribe-giving MPs were also liable to prosecution on corruption charges.

Need for a relook

The SC’s interpretation of Article 105(2) has become untenable after its 2007 verdict upholding Parliament’s decision to expel about a dozen MPs involved in the “cash-for-query” scam. If an MP can be expelled from Parliament and prosecuted for taking bribe to ask a question in the House, why can’t he/she be proceeded against in a court of law for taking money to vote in a particular manner in the House?

If such a situation arises, Parliament and Supreme Court will have to reinterpret Arcticle 105(2) and redefine the constitutional and political morality in view of the decisions in the “cash-for-query” scam and, of course, in the larger interest of democracy and rule of law.