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The Rediff Special/ Indira Jaising

'The problems raised by Rao's case will not go away'

The tenth general election to the Lok Sabha resulted in a hung Parliament. P V Narasimha Rao became the leader of a 251-member Congress party to form a minority government in a 528-member House. Within two years his government was faced with a no confidence motion. Being unused to being in a minority, he did the best he could to stay in power. He bribed Jharkhand Mukti Morcha MPs to have the no confidence motion defeated by 265 votes.

Let us go back to the time when Rao became prime minister. What is the oath of office he signed? '...that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill will.'

His conviction on Friday proves that he defiled that sacred oath and no punishment that can be imposed on him can be too harsh for having committed that crime.

The question that require to be asked are why have the other MPs who accepted bribes been let off? Where has the law gone wrong?

Let us see what happened after the charges were framed.

Rao filed a petition in the Supreme Court raising two main contentions. One that he had absolute immunity in relation to what he did in Parliament in view of Article 105 and two that he was not a 'public servant' within the meaning of the Prevention of Corruption Act. In effect the argument was that no MP can be prosecuted for corruption and in any event if the alleged corrupt act took place in Parliament the courts were expected to take a hands off attitude.

Where was this argument coming from?

Article 105(2) states that no member of the House shall be liable to any proceedings in any court in relation to anything said or any vote given by him in Parliament.

The Constitution as framed said in Article 105(3) that in respect of powers, privileges and immunities of members shall be those that were enjoyed by members of Parliament at Westminster. In 1978 removing the reference to Westminster made a cosmetic change. But their powers and privileges remained unwritten and unspecified. Parliament has to this day failed to enact a law defining its privileges and immunities and that of its members. It was this that enabled Rao and the other MPs to argue that they were immune from prosecution in relation to anything done in Parliament

The Supreme Court, dealing with these contentions, noted that the object of the immunity was to protect the independence of Parliament, not to shield crime. The Court concluded that no immunity was available in England and hence in India, from prosecution for bribery as bribing was not part of legislative conduct. Hence, Rao was liable to be prosecuted. What about the bribe taker then?

The Court by majority came to the conclusion that any such prosecution would have to go into the motive for voting in a particular way and since the prosecution against the JMM MPs would involve an enquiry into why they voted against the no confidence motion, they enjoyed immunity from prosecution.

Strangely, the only person who could be prosecuted was Ajit Singh, since he neither spoke nor voted (he abstained). It was by this strange process of reasoning that the JMM MPs were discharged.

The minority judgment of Justice Anand and Justice Agarawal, however, disagrees with that view.They make it clear that the offence of bribery is made out independently against the receiver if he takes or agrees to take money for a promise to act in a certain way. The offence is complete with the acceptance of the money or even the agreement to accept the money and it is not dependent on the performance of the illegal promise.

It was the majority view that prevailed. The consequences are all too obvious. The bribe giver has been convicted. The bribe takers are part of the ruling NDA coalition and one of them is busy negotiating his position as chief minister of a new state.

Special Judge Ajit Bharihoke's judgment is historic. It is a first in independent India and must be hailed as such. It send a powerful message 'be you ever so high, the law is above you.' The minority judges refused to accept the logic of the majority for they said that any interpretation that gave a bribe taker immunity from prosecution would put him above the law. It would be 'repugnant to the functioning of a health democracy and subvert the rule of law.'

They were strong words. But did we as a nation heed those words? I think not. With Rao and Buta Singh's conviction, the rule of law has been reinstated, but only partly.

What are the lessons to be learnt from the legal battle so far?

Who has failed us, Parliament or the Supreme Court, or both?

To begin with, there has been a gross failure of Parliament in the last fifty years to enact a law defining its own privileges and immunities. At Independence we gave ourselves a written Constitution with fundamental rights. These rights have been denuded by preserving privileges and immunities for members of Parliament which were available to our colonial masters at Westminster.

No ruling party since Independence has cared to put down the limits of these immunities in writing as they all have had a vested interested in protecting themselves against prosecution. We have certainly been let down by them.

At a time when we celebrate the victory of the rule of law in Rao and Buta Singh's conviction, we must demand from Parliament that it enacts a law defining the limits of its immunity. Only then will it be possible to hold our legislators accountable, and the bribe taker as well as the bribe giver held liable.

The problems raised by Rao's case are not going to go away. They were problems raised by the fact that the Congress was for too long accustomed to be in the majority and unable to deal with being in a minority except through bribery. Given that no single party has been able to get a majority in recent times, the problem is going to stay with us for a long time to come. No government will be immune from the temptation to buy votes. Some with bags of money, others with offers of ministries.

It is no solution, as L K Advani would suggest, that we switch over to the Presidential form of government in the interest of 'stability.'

Solutions have to be found in a more representative form of parliamentary democracy. Friday's judgment, while going a long way in cleaning up the political system, leaves before the nation a larger agenda holding members of Parliament accountable to the rule of law by stripping them of immunity from prosecution in relation to offences committed by then in the discharge of their parliamentary functions.

There was a difference of opinion within the Supreme Court no doubt, but it is for the nation to decide that the minority view must be preferred to the majority view. The Court has done its bit. It is for the nation as a whole to respond to the demand for a corruption-free political system.

The Rediff Specials

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