Not a matter of privilege

Aniruddha Bahal's latest sting operation lays bare for all to see the depths to which our polity has sunk. It not only shows the petty amounts for which our legislators are willing to sell their privileges; if you listen to their conversations on tape, it also tells you the poor opinion that they have of legislators and Parliament in general. One of them tells Bahal how he is willing to set up a group of MPs from all parties who will lobby for promoting the interests of Bahal's fictitious organisation—for cash of course.

Another says that big companies and commercial interests can virtually get anything done in their interest by the government and Parliament and it is impossible for anyone to act against them. It might not have been so bad if this had been the cynical and incorrect perception of the stung MPs. Unfortunately for the country, the honorable members of Parliament were only voicing the ugly reality in the country.

But what about the sting operation? Was it legal, ethical and in the public interest? There is no law which prohibits such operations.It is also not the case that a journalist offering such 'bribes' would himself be guilty under the Prevention of Corruption Act, since he had no 'mens rea' or guilty intent, an essential ingredient of a criminal offence. Even the police and the CBI often lay such traps to catch bribe takers red-handed.

There is also no violation of any ethical principle in conducting such sting operations. It is clearly in public interest that such crooked legislators and public servants are exposed and punished. Such operations are the most effective way of ensuring that such persons are caught. It is difficult to believe that parties are unaware of the crimes that their MPs are committing. But there is no effort to take action against them, till they are caught and publicly exposed. 

I also do not subscribe to the argument that such sting operations involve an invasion of privacy or a a 'gentlemen's agreement of confidentiality'. No public servant or legislator can claim any privacy to take money for conducting their official functions. I am of the view that most public offices should have continuous video monitoring of what transpires in those offices. This should be available to the people under the right to information. And the public interest involved in exposing corruption in high places overrides any "gentlemen's agreement of privacy".

The only reason why MPs were able to demand bribes for asking questions was because asking questions to get information about any aspect of government was their privilege.  Now, with the Right to Information Act, every citizen has been given the same right, and any information which cannot be denied to Parliament, cannot be denied to a citizen.  This Act will not only empower the citizens and work towards restoring their position of the real masters in a democracy, it will also make the task of investigative journalists easier.

Finally, what action can be taken against the MPs who have been caught on camera? Firstly, it amounts to breach of privilege and both houses have already initiated steps towards punishing the accused for this breach. The Rajya Sabha has already suspended the lone upper house member caught, pending the final report of the privileges committee. For this breach, the others can be reprimanded or suspended for upto the remainder of their term in Parliament.

They cannot however be disqualified from contesting the next general elections. Apart from this, they can also be prosecuted under the Prevention of Corruption Act, which makes it an offence for any public servant to take any consideration for performing an official act.

Asking questions in Parliament is an official act of MPs who have been held to be public servants by the Supreme Court. The Court however in the JMM bribery case, when the party's parliamentary members were accused of bribery, had held that these MPs could not be prosecuted since Art 105 of the Constitution dealing with powers of privileges of MPs says that "No MP shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament." It was thus held by the Court that selling his vote is a privilege of an MP. It could therefore be argued on a parity of reasoning that selling ones right to ask questions is also a privilege of a member of Parliament.

This is an absurd view, but one which has unfortunately been propounded by a Constitution bench of the Supreme Court. It remains the law of the land till it is overruled by a larger bench. This cash for questions case would be an appropriate case to seek a review of the law.

The MPs involved in this case should be prosecuted by the CBI under the Prevention of Corruption Act. If they take shelter behind the JMM judgement of the Supreme Court, the CBI can at that stage seek reconsideration of the judgement by a larger bench. With the state of public opinion on this issue being what it is, I am confident that the court will reconsider its earlier erroneous view.

The writer is a Supreme Court lawyer dealing in public interest cases.