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| Dealing with tainted MPs | | Parliament must use penal power | |
by N. H. Hingorani
Dedicated leaders who framed the Constitution gave us a sovereign, democratic republic enabling every citizen of the country to uphold the noble ideas that inspired our national struggle for freedom.
The 11 members of Parliament caught in the cash-for-questions scam, as also seven other members found misusing the funds given to them under the MP Local Area Development Scheme, have betrayed the trust of those whom they represent in the august House.
The government had, on December 23, 1993, introduced and passed with rare unanimity, the M P Local Area Development Scheme granting to every member of Parliament an annual sum of Rs 1 crore for initiating projects of his or her choice in their respective local areas. This grant was increased by Parliament to Rs 2 crore for the financial year 1998-99, though the demand for further increase of the grant to Rs 5 crore in 2001 was mercifully rejected.
It is distressing that our MPs do not bother to even ponder whether the scheme runs counter to the constitutional provisions in Part V, Chapter II, which do not permit Parliament to execute such development schemes. Article 53 of the Constitution provides that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.
In our parliamentary system of government, the President acts with the aid and advice of his Council of Ministers (Articles 74, 77). The members of Parliament may be public servants under the penal laws of the country but are not officers subordinate to the President. The discharge of any of the executive functions of the President by members of Parliament is, therefore, plainly ultra vires the Constitution and clearly illegal. That, in fact, has been the consistent view of several eminent persons, including Justice Krishna Iyer, former Judge of the Supreme Court. They have characterised this scheme as unconstitutional and a source of patronage and corruption.
One can go a step further and denounce such schemes as striking at the very root of fair and free elections in a healthy democratic set-up as mandated by the Constitution.
It would only be in the fitness of things if the MP Local Area Development Scheme is scrapped immediately by Parliament itself, which, incidentally, was the initial reaction of Speaker Somnath Chatterjee. Such a course would be better than leaving it to the apex court to declare the scheme as unconstitutional in the matter pending before it.
With regard to the cash for questions scam, Article 84 of the Constitution mandates that a person shall not be qualified to be chosen to fill a seat in Parliament unless he or she is a citizen of India and makes and subscribes before some person authorised in that behalf by the Election Commission an oath of affirmation according to the form set out in the Third Schedule swearing that he or she will bear true faith and allegiance to the Constitution of India as per law established and that he or she will uphold the sovereignty and integrity of India.
The question then arises as to whether the century-old Indian Penal Code, which places bribe-givers and bribe-takers on the same footing, disqualifies the members of Parliament caught in the cash-for-questions scam under Article 103 of the Constitution.
It is true that in the 1993 Jharkhand Mukti Morcha bribery case, the apex court, by a majority of three to two, ruled in its decision reported in AIR 1993 SC 2120 that bribe-giving members of Parliament could be prosecuted for the offence but not the bribe-taking members. But, then, this case did not raise the question of disqualification of tainted members; rather, it related to the prosecution of members of Parliament for taking and giving bribes for voting in a particular way during the no-confidence motion against the government, during the monsoon session of Parliament on July 21, 1993.
That apart, it would be worth considering whether such a finding of the apex court is consistent with the universal principle of equality enshrined in Article 14 of the Constitution. Given that no court, including the apex court, can overlook or disregard the Constitution, the judgment of the Supreme Court in the Jharkhand bribery case is per incuriam and has no binding force.
Under the Constitution, it is open to the President to refer the question of the disqualification of the tainted members of Parliament to the Election Commission for its opinion. Indeed, Article 103 of the Constitution does not indicate who can move the President for making such reference, which can presumably be made at the instance of anyone in public interest. The opinion of the Election Commission has expressly been made binding on the President by virtue of Article 103 (2) of the Constitution, thus excluding “the aid and advice” of his Council of Ministers.
Parliament, in exercise of its plenary power, has expelled the concerned tainted members. It is for Parliament to decide whether such expulsion of members is adequate punishment for lowering the dignity of the House, just as it is for Parliament to take penal action for corruption in accordance with the law against all, including those involved in the Jharkhand Mukti Morcha bribery case. Judicial interference in such an exercise of power by Parliament on matters falling exclusively within its sphere would surely be unwarranted and unjustified.n
The writer is a senior advocate, Supreme Court of India.
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