K.V.DHANANJAY B.Com, LL.

B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

Date: 21-Feb-2012 To 1. Sri. Anand R. Yadwad S/o. Rachappa Aged 39 years Residing at: # 11, 8th ‘A’ Block, Nandi Gardens, J.P.Nagar, 9th Phase, Bangalore – 560 062. 2. Sri. Deepak C.N S/o Nagaraju C.M Aged 33 years Residing at: F-723, 13th Cross, 1st Phase, BEL Layout, Bharathnagar, Bangalore – 560 091.

Subject: Legal opinion sought by you on whether “ordinary crimes committed inside the Karnataka Legislative Assembly attract and are protected by

‘parliamentary privileges’?” Dear Sir 1. 2. The subject of ‘parliamentary privilege’ is often misunderstood. Commission of ‘ordinary crimes’ inside the Legislative Assembly of a State cannot and has never attracted ‘privileges’.

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

3.

The Constitution of India has deemed it essential and desirable to confer on the Parliament of India and to the Legislature of each of the States, privileges to the same extent as were available to the British House of Commons as on the date of coming into force of the Constitution of India.

4.

Article 105 of the Constitution primarily deals with the issue of ‘privileges’ and ‘immunities’ of the Parliament. It says: 105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. (1) Subject to the provisions of this Constitution and to the rules and standing orders 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, paper, 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

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K.V.DHANANJAY B.Com, LL.B
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section 15 of the Constitution (Forty-fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament. 5. Originally, Article 105(3) stood as under: 105 (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 the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. 6. However, the 44th Amendment to the Constitution substituted the highlighted part in the aforesaid provision with the following words: “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

Amendment) Act, 1978”.

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

7.

As such, the Parliament of India has always had the opportunity to vary the privileges attached to it by making an express and specific law for the purpose of varying the privileges that were attached to the British House of Commons as on 26-Jan-1950. The Parliament of India has, however, chosen to not bring about any specific legislation for the purpose of modifying British parliamentary privileges that are otherwise attracted to it.

8.

Similarly, the Constitution of India speaks of the privileges and immunities of the State Legislatures in Article 194. Originally, Articles 105 and 194 were identical in every respect except as to the institution being the ‘Parliament’ in Article 105 and in article 194, the House of the Legislature of a State. Thereafter, the 44th Amendment to the Constitution of India substituted the reference to the ‘British House of Commons’ in Article 194 without altering the original scope of that article.

9.

As is the case with the Parliament of India, none of the State Legislatures have chosen to bring about any legislation to modify or vary the British parliamentary privileges that are otherwise attracted to them.

10.

As may be seen from the above provision, the Constitution of India originally did not distinguish between the privileges available to the Parliament of India and those available to the Legislature of each of the constituent States. Further, in view of the fact that neither the Parliament of India nor the Legislatures

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

of the States have chosen to vary the British parliamentary privileges that are otherwise attracted to them, the Parliament of India as well as the Legislatures of the States currently enjoy the same extent of privileges. Therefore, throughout the balance of this opinion, the term ‘parliamentary privilege’ shall be used to refer to privileges that also reside in the Legislatures of our States. 11. As the Constitution of India was enforced on and from 26-Jan1950, any discussion on the subject of parliamentary privileges in the context of the Constitution of India should necessarily begin from a conspectus of what privileges were available to the British House of Commons on 26-Jan-1950. 12. Contemporary constitutional scholars in Britain have always maintained that their Parliament and their Courts have not discovered any new set of parliamentary privileges in a very long time. And, constitutional scholars in India fully concur that since 26-Jan-1950, no new privileges have been discovered in the context of the British Parliament. 13. As such, in the absence of decisions of Courts in India on a given issue, the decisions of Courts in the United Kingdom on the issue of whether ‘ordinary crimes’ attract parliamentary

privileges could be consulted without any hesitation as the interpretation by those Courts simply relates to a privilege that had existed in their own Parliament much prior to 26-Jan-1950.

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K.V.DHANANJAY B.Com, LL.B
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14.

The privilege of freedom of speech in Parliament and other privileges arose to a large extent out of the historical struggle in England between the Monarch and the Parliament, especially during the Tudor and Stuart periods. For an efficient

understanding of the scope of parliamentary privileges, it becomes necessary to delve into its history. Constitutional scholars generally credit the following history as the sure foundation for modern ‘parliamentary privileges’: (reproduced from a publication titled ‘New South Wales Legislative Council Practice’) The first reasoned plea for the right of members to speak freely to matters before them was delivered by Speaker Sir Thomas More in his address for privileges in 1523 in which he requested that King Henry VIII (1509-47) accept what members said in good part and in good faith for the prosperity of the realm…By 1541 the request for freedom of speech appeared routinely in the Speaker’s petition to the King at the opening of Parliament. Throughout the reign of Queen Elizabeth I (1558-1603), the Parliament continued to claim the privilege of freedom of speech, and by 1563 it was claiming it as an ancient right which was simply to be confirmed by the Monarch. However, the freedom was seen by many at that time as limited to debate on legislation, rather than granting

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

members freedom to say whatever they willed. In 1593 Lord Keeper Sir Edward Coke reminded the Speaker that the Queen had granted liberal but not licentious speech. Under King James I (1603-25) the struggle for freedom of speech for members of Parliament intensified. The

Parliament insisted that its freedom of speech was an ‘inheritance’ of an ancient right, while the King viewed it as a royal prerogative, granted by his ‘toleration’ and ‘derived from the grace and permission of our ancestors and us’. The Commons responded with the Protestation of 1621, in which it claimed: [T]hat every Member of the House of Commons hath and of right ought to have freedom of speech … and … like freedom from all impeachment, imprisonment and molestation (other than by censure by the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or parliamentary business. James I dissolved the Parliament shortly thereafter. … However, it was during the reign of James’ son, King Charles I (1625-49), that the struggle between the

Parliament and the Monarch reached its zenith. In 1629 Charles I ordered the arrest of three members of the

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

Commons, Sir John Eliot, Denzil Holles and Benjamin Valentine, for speeches made in the House which the King considered dangerous, libellous and seditious. Following the dissolution of the Parliament the men were prosecuted in the Court of King’s Bench, on charges of conspiring to resist the King’s lawful command that the House adjourn, of

calumniating his ministers, of creating discord between King and people, and of assaulting the Speaker. Although the men claimed privilege, arguing that as their alleged offences had been committed in Parliament they were not punishable in any other place, the royal court found against them, and they were subsequently imprisoned and fined. The decision was extremely unpopular and contributed to the growing opposition to Charles I. In 1641 the Commons adopted resolutions declaring the entire proceedings against its members a breach of privilege. The climax of this struggle was reached on 4 January 1642 when Charles I, attended by an armed escort, entered the Commons chamber and attempted to arrest five members who were most prominent in Parliament’s attempt to transfer control of the armed forces away from the Crown. The relationship between Charles I and the Parliament was fatally undermined by his attempt to arrest the five members. … However, it was not until the ‘Glorious

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

Revolution’ of 1689 that the long struggle between the Stuart kings and the English people and Parliament was finally resolved with the effective ‘election’ of William III and Mary II as joint Monarchs on whom were imposed the terms of the Bill of Rights 1689, including the provisions of Article 9. 15. The Bill of Rights 1689 provided statutory recognition once and for all of the basic privilege of Parliament – freedom of speech. Article 9 of the Bill of Rights, 1689 provides that: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”. 16. In the context of such history, the scope of parliamentary privileges was summarised by the Supreme Court of India in the course of interpreting Article 105 (2) of the Constitution in the case of T.K.Jain v. N.S. Reddy [(1971)1 S.C.R. 612]. It was contended in the said case that 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. The Supreme 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

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

limitation arises from the words 'in 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." 17. As such, the term parliamentary privilege refers to two aspects of the law as it relates to Parliament: the immunities of the Houses of Parliament, and the powers of the Houses of Parliament to protect their processes. Both the immunities and powers of Parliament are fundamental to enable it to perform its functions of representing the people, scrutinising the actions of the executive and reviewing and passing legislation. 18. As such, individual members of Parliament can claim privilege only to the extent that some action, proposed or otherwise,

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

would impede them in carrying out their responsibilities and duties as a member of the House, or adversely affect the proper functioning of the House or a committee. While parliamentary privilege gives members of Parliament immunities which exceed those possessed by other bodies or individuals, it was never intended to set them above the ordinary law. Members are subject to the criminal law, except in relation to freedom of speech and debates in the context of parliamentary proceedings. 19. In this context, the answer to the question whether ‘ordinary crimes attract parliamentary privileges’, the answer would be an emphatic, ‘No’. 20. Simply put, when a member engages in a certain conduct inside the Parliament, the relevance, necessity, expectation, proximity, relation or connection of such conduct to the business of the Parliament is the factor that determines whether such conduct is protected by ‘privilege’. Further, whether a privilege exists is a matter for a court of law to decide. Therefore, the Parliament cannot claim that it possesses a certain ‘privilege’ and then insist that Courts ought to not enquire into the existence of such a privilege. It has been too well established that whether a privilege exists is squarely a matter for a court of law to decide. In Stockdale v. Hansard [(1839) 9 Ad & E 1], in response to the argument that the Parliament itself was a separate court with

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

exclusive jurisdiction over the extent of its privileges, Lord Denman, the Chief Justice, held that: “When the subject matter falls within their jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these courts could give themselves jurisdiction by adjudging that they enjoy it”. 21. As such, when we set out in 2012 to ask whether ordinary crimes are protected by “Parliamentary Privilege”, we encounter little or no difficulty in emphatically saying, “No”. 22. The primary object behind the existence of ‘parliamentary privileges’ is to allow absolute, uninhibited and unfettered freedom to speak and debate inside the Parliament or the Legislative Chamber. As such, the jurisdiction of Courts is greatly barred in relation to the content, scope and nature of parliamentary debates and speeches. Nothing that is said inside Parliament can be made the basis for prosecuting the concerned speaker in any Court of Law. The Parliament alone would be the best judge on how to discipline its own members for the purpose

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

of ensuring that its members retain absolute freedom to debate and to transact within the Parliament. 23. Now, in the context of such unfettered freedom available in the form of ‘parliamentary privileges’, what would be the result if one member were to sexually assault another member inside the house or if one member were to grievously injure another member – while acting in the course of a parliamentary debate? 24. As a matter of law, such acts would constitute ‘ordinary crimes’ and are not protected by ‘parliamentary privileges’. Further, Courts have had no difficulty whatsoever in declaring that such acts would not be protected by parliamentary privileges. 25. In other words, say a member sexually assaults another member or grievously assaults another member while the debates are in progress inside the Parliament. Do parliamentary privileges protect such acts? 26. To sexually assault another member or to grievously injure another member are acts that have no connection, whatsoever, to the transaction of business of the Parliament. And to prosecute the wrongdoers is not an act that could inhibit, howsoever, the free exercise of speech and debates inside the Parliament. As such, a member who engages in such conduct is liable to be prosecuted and tried without any reference to his status as a member of Parliament or to the incidence of such

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

crime having been committed within the hallowed halls of the Parliament. 27. In Bradlaugh v. Gossett, [(1883-84) LR 12 QBD 271], Justice Stephen, the judge considered as the master of the principles of criminal law in the 19th century held: “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. One of the leading authorities on the privilege of Parliament contains matter on the point and shows how careful Parliament has been to avoid even the appearance of countenancing such a doctrine”. 28. Further, there is no decision of any Court of law in India that has reversed the aforesaid doctrine to say that ‘ordinary crimes’ are protected by parliamentary privilege. In the case of P.V.Narasimha Rao v. State (AIR 1998 SC 2120), the Hon’ble Supreme Court analysed the allegations of bribery by several members of Parliament and held that several acts within the alleged bribery were not protected by ‘parliamentary privileges’. This decision, I would state, reaffirms the principle that ‘ordinary crimes’ are not protected by parliamentary privilege. 29. In the aforesaid case, the Supreme Court held that members of Parliament who had received bribes to vote in a certain manner

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K.V.DHANANJAY B.Com, LL.B
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in a no-confidence motion against the Government headed by Sri P.V.Narasimha Rao, member and Prime Minister were held to be protected by parliamentary privilege as their act of receiving bribes was made in respect of a vote in Parliament. The Court held that article 105 (2) of the Constitution ought to be interpreted in a manner as to protect those who receive bribes in connection with their parliamentary functions. Further, the Court also noted to the effect that the ‘authorities in Britain were not unanimous in regard to whether a member of Parliament who receives a bribe in connection with the performance of his duty inside the Parliament commits an offence triable by a Court of law’. 30. In quashing prosecution against members who were alleged to have received the bribes, the Supreme Court held that: 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). 31. Further, the Supreme Court refused to read ‘parliamentary privilege’ to a member alleged to have received a bribe but who had absented himself from the vote in the Parliament. This

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ruling, in my view, fully reaffirms the principle that ‘ordinary crimes’ are not protected by parliamentary privilege. The Court held: 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)… 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. 32. As such, article 105 (2) of the Constitution of India has already been interpreted by the Supreme Court of India to not protect acts that cannot be shown to be made in ‘respect of proceedings in Parliament’. Therefore, as ‘ordinary crimes’ are merely acts that have no relation whatsoever to the acts of the Parliament, ‘ordinary crimes’ committed inside the Parliament are,

accordingly, not protected by parliamentary privileges.

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33.

Further, the Supreme Court held in the aforesaid judgment that members of Parliament who did bribe other members were not protected by parliamentary privilege. The argument for Sri P.V.Narasimha Rao, member of Parliament and the Prime Minister who was alleged to have bribed other members that ‘the act of giving bribes too should receive protection under parliamentary privileges’ was rejected by the Supreme Court. It specifically held and concluded that: 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.

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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. 34. As may be seen from the above passages, the Supreme Court held that acts that did not clearly constitute acts done ‘with respect to proceedings in Parliament’ were not entitled to protection under ‘parliamentary privilege’. 35. Further, the Supreme Court emphatically rejected the arguments of certain liquor barons and other private persons who were alleged to have similarly aided the bribing of members of Parliament. The Court held: D.K. Adikeshavulu and M.Thimme gowda (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 H.M. Revanna (accused nos. 7 and 9) were not public servants. The question of sanction for their prosecution, does

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K.V.DHANANJAY B.Com, LL.B
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not, therefore, arise and the trial on all charges against them must proceed. 36. As such, I would like to reaffirm and state that ‘ordinary crimes’ do not attract ‘parliamentary privileges’. 37. Further, as recently as in 2009, members of the British Parliament were discovered to have inflated their living expenses for the purpose of falsely claiming allowances from the British Parliament. Information about this case is wholly relevant to the discussion in this opinion. 38. The British Parliament offers to its members, a scheme of travel and living expense allowance. The members of Parliament are permitted to claim expenses, including the cost of

accommodation, "wholly, exclusively and necessarily incurred for the performance of a Member’s parliamentary duties". 39. For the purpose of effective administration of such a scheme, a policy was evolved in the year 1971 and an elaborate mechanism was devised thereunder with several committees constituted within the British Parliament to receive such claims from members and to verify and process such claims. 40. Beginning 08-May-2009, the Telegraph newspaper in London started reporting on its investigation into the fraud and false claims that had been made by dozens of members of Parliament. Several members of Parliament:

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i.

had claimed false and bogus expenses for services they had not availed of;

ii.

had claimed false and bogus expenses for accommodation in houses that they had not resided in;

iii.

had claimed false and bogus residence charges at places that they had not stayed in;

iv.

had claimed false and bogus expenses for certain IT services they had neither sought nor received.

41.

Pursuant to a national outrage and mass media criticism of fraud at such high places, dozens of members were expelled from their political parties and four members of the Parliament were charged under Section 17(1)(b) of the Theft Act, 1968. Section 17(1)(b) of the Theft Act provides that: (reproduced to the extent material for this discussion) “False accounting: (1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,…(b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular; he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years.

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(2) For purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document. ” 42. The four members, Mr. David Chaytor, Lord Hanningfield, Mr. Elliot Morley and Mr. Jim Devine claimed parliamentary privilege for their ‘dishonest claims’. The four members of Parliament argued before the Southwark Crown Court (analogous to the Court of a Magistrate in India) that they could not be prosecuted for their acts as those acts were committed inside the Parliament and that their dishonest claims were made in relation to their attendance in the Parliament. In short, their argument was that their acts of dishonesty were protected by parliamentary privilege. The Court of first instance dismissed their claims of ‘parliamentary privileges’ on 11-Jun-2010. Justice Saunders of the Southwark Crown Court ruled that: [reported as 2010 EW Misc 9 (EWCC)] I am satisfied that in the context of criminal charges Parliamentary privilege should be narrowly construed. The principle that all men are equal before the law is an important one and should be observed unless there is good reason why it should not apply. To do otherwise would risk

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bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system.

Parliament does not have an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminal charges (see Para. 146 of the Joint Committee Report)… The claiming of expenses is an individual activity for the benefit of the individual and any benefit to Parliament as a whole is not a direct one. Further it is not part of a Member’s duty to claim his expenses or allowances. He could not be criticised for failing to carry out his duties as an MP if he did not claim his allowances and his expenses. It would not be an interference with the workings of Parliament or obstruct the carrying out of their business. None of the justifications for the existence of privilege would seem to apply to the submission of the form. In my judgment it does not come within the scope of the ‘exclusive jurisdiction of Parliament’ on any sensible construction of that privilege. I can therefore see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either. I suspect that, if it had been suggested to members of either House, including these Defendants, that their claims for expenses were covered by privilege before these proceedings began, they would have been extremely surprised. In my judgment, their

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surprise would be justified, because properly construed the submission of the form is not part of ‘proceedings in Parliament’. In my judgment for all those reasons the conduct alleged against these Defendants is not covered by Parliamentary privilege and is triable in the Crown Court. I believe that this conclusion is consistent with the pronouncements of

Parliament on the subject, the authorities to which I have been referred and not least the principle underlying all allegations of criminal conduct of equality before the law… 43. On appeal to the Court of Appeals, the arguments of

‘parliamentary privilege’ were dismissed in entirety by the Court of Appeals (analogous to the High Courts in our States). The court of appeals most emphatically declared that “it can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament.” Dismissing the appeals in entirety on 30-Jul-2010, an undivided Bench of 5 Justices of the Court of Appeals ruled that: [reported as 2010 EWCA Crim 1910] More specifically, it seems to us that submitting a claim for expenses has nothing to do with "the need to ensure the member's entitlement to speak freely without fear"; nor does it involve the exercise of his or her "real" or "essential"

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ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

functions or his or her "core activities". It is true that a member may need to spend money and recover expenses or allowances in order to perform these functions, but that does not render the incurring and claiming of expenses or allowances a core or essential activity of Parliament: indeed the incurring and claiming of expenses would be, as we have already suggested, classic ancillary activities. If it were otherwise, a member travelling to and from Parliament might be thought to be immune from prosecution for dangerous driving, or evading payment for his rail ticket. In truth, it is impossible to see how subjecting dishonest claims for expenses to criminal investigation would offend against the rationale for parliamentary privilege, or obstruct any member of the House from performing his or her duties. It was suggested on the defendants' behalf that the correct approach should be for privilege to attach to any dealing that a member might have with the House, in his capacity as such. That has its initial attraction, but on examination the consequences would be strange. Thus, for example, if a member were to assault an official of the Fees Office because his claim for expenses was refused or delayed, this would surely be ordinary crime which happened to be committed in Parliament by a member of Parliament: it would be an insult to Parliament to dignify it with some adjective or epithet which implied otherwise, or excuse it on

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

the basis of parliamentary privilege. And, precisely the same principle would apply if the official of the Fees Office assaulted the member of the House. Violent actions by either would have nothing to do with the exercise by the member, or for that matter, the official, of his parliamentary responsibilities. It would therefore be curious if privilege were to apply to the member who defrauded the Fees Office by submitting a false claim for expenses to the very same official. It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament. With the necessary exception in relation to the exercise of freedom of speech, it is difficult to envisage circumstances in which the performance of the core responsibilities of a member of Parliament might require or permit him or her to commit crime, or in which the commission of crime could form part of the proceedings in the House for the purposes of article 9 of the Bill of Rights. Equally we cannot discern from principle or authority that privilege or immunity in relation to such conduct may arise merely because the allegations are based on activities which have taken place "within the walls" of Parliament. The stark reality is that the defendants are alleged to have taken advantage of the allowances scheme designed to

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege does not, has never, and, we believe, never would attach. If the allegations are proved, and we emphasise, if they are proved, then those against whom they are proved will have committed ordinary crimes. Even stretching language to its limits we are unable to envisage how dishonest claims by members of Parliament for their expenses or allowances begin to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties. In our judgment no question of privilege arises, and the ordinary process of the criminal justice system should take its normal course, unaffected by any groundless anxiety that they might constitute an infringement of parliamentary privilege. The decision of Saunders J was correct. The appeals will be dismissed. 44. Further appeal to the United Kingdom Supreme Court was similarly dismissed in entirety by an undivided Bench of 9 judges on 01-Dec-2010. The United Kingdom Supreme Court (analogous to the Supreme Court of India) held: [reported as 2010 UKSC 52] the principles of

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

None of these expressions of Parliamentary views lends support to the suggestion that submitting claims for allowances and expenses constitutes proceedings in

Parliament for the purposes of article 9. On the contrary they all suggest, either expressly or by implication, that the submission of such claims falls outside the protection of that article. The recovery of allowances and expenses to defray the costs involved in attending Parliament, or travelling on Parliamentary business, has no closer nexus with

proceedings in Parliament than incurring those expenses. There are good reasons of policy for giving article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown's judges. The protection of article 9 is absolute. It is capable of variation by primary legislation, but not capable of waiver, even by Parliamentary resolution. Its effect where it applies is to prevent those injured by civil wrongdoing from obtaining redress and to prevent the prosecution of Members for conduct which is criminal. As to the latter, Parliament has no criminal jurisdiction… Thus precedent, the views of Parliament and policy all point in the same direction. Submitting claims for allowances and expenses does not form part of, nor is it incidental to, the

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

core or essential business of Parliament, which consists of collective deliberation and decision making. The submission of claims is an activity which is an incident of the administration of Parliament; it is not part of the proceedings in Parliament. I am satisfied that Saunders J and the Court of Appeal were right to reject the defendants' reliance on article 9. Parliament has never challenged, in general, the application of criminal law within the precincts of Parliament and has accepted that the mere fact that a crime has been committed within these precincts is no bar to the jurisdiction of the criminal courts. In May 1812 John Bellingham was indicted, tried and convicted of the murder of the Prime Minister, Spencer Percival, at the entrance to the lobby of the House of Commons. Bellingham was not a Member of Parliament, but it would have made no difference had he been. Where a crime is committed within the House of Commons, this may well also constitute a contempt of Parliament. The courts and Parliament have different, overlapping,

jurisdictions. The House can take disciplinary proceedings for contempt and a court can try the offender for the crime… Even if the House were not co-operating with the prosecuting authorities in these cases, I do not consider that the court would be prevented from exercising jurisdiction on the

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

ground that they relate to matters within the exclusive cognisance of Parliament. If an applicant sought to attack by judicial review the scheme under which allowances and expenses are paid the court would no doubt refuse the application on the ground that this was a matter for the House. Examination of the manner in which the scheme is being implemented is not, however, a matter exclusively for Parliament. It was not suggested that Members have a contractual entitlement to allowances and expenses, but if they were to have such contractual rights, I see no reason why they should not sue for them. If a question were raised as to whether allowances and expenses were taxable, the court would be entitled to examine the circumstances in which they were paid. Equally there is no bar in principle to the Crown Court considering whether the claims made by the defendants were fraudulent. This is not to exclude the possibility that, in the course of a criminal prosecution, issues might arise involving areas of inquiry precluded by parliamentary privilege, although that seems unlikely having regard to the particulars of the charges in the cases before us. For these reasons I am satisfied that neither article 9 nor the exclusive cognisance of the House of Commons poses any bar to the jurisdiction of the Crown Court to try these

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

defendants. That is why I decided that each appeal should be dismissed. 45. Consequently, the four members of Parliament were prosecuted and tried for commission of offences under the Theft Act, 1968. The outcome of these trials is as under: 46. Mr. David Chaytor: Mr. David Chaytor pleaded guilty to charges of false accounting and was sentenced to 18 months

imprisonment by the Southwark Crown Court. 47. Lord Hanningfield: Lord Hanningfield pleaded not guilty to six charges of false accounting, but was convicted at Chelmsford Crown Court on 26-May-2011. 48. Mr. Elliot Morley: Mr. Elliot Morley admitted to two charges of dishonesty and was sentenced at Southwark Crown Court on 20-May-2011 to 16 months imprisonment. 49. Mr. Jim Devine: Mr. Jim Devine pleaded not guilty and was found guilty on two counts but cleared of a third (relating to £360) on 10-February-2011. On 31-March-2011 he was

sentenced to 16 months imprisonment. 50. Further, two other members of Parliament were also tried and convicted by the trial courts, under similar circumstances: 51. Lord Taylor of Warwick: Lord Taylor of Warwick pleaded not guilty to six charges of false accounting, but was convicted at

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K.V.DHANANJAY B.Com, LL.B
ADVOCATE No.127, Lawyers Chambers Supreme Court of India New Delhi 110 001 dhananjaylegal@gmail.com +91 99105 77765 +91 99029 09390

Southwark Crown Court on 25-January-2011. On 31-May-2011 he was sentenced to 12 months imprisonment. 52. Mr. Eric Illsley: Mr. Eric Illsley pleaded guilty to charges of false accounting and was sentenced at Southwark Crown Court to 12 months imprisonment. 53. As such, I would like to most emphatically state that ordinary crimes committed inside the Parliament or the Legislature of a State are not protected by ‘parliamentary privileges’, A Court of law possesses complete jurisdiction to try and punish members of the Parliament or of a State Legislature who are shown to have committed ‘ordinary crimes’ within the hallowed halls of the Parliament or of the State Legislature. Sincerely

K.V.DHANANJAY Advocate

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