As per Chapter XI of the 'Practice and Procedure of Parliament' (Fifth edition), by M.N. Kaul and S.L. Shakdher in interpreting parliamentary privileges at Page 211 observed:
...regard must be had to the general principle that the privileges of Parliament are granted to members in order that they may be able to perform their duties in Parliament without let or hindrance. They apply to individual members only insofar as they are necessary in order that the House may freely perform its functions. They do not discharge the member from the obligations to society which apply to him as much and perhaps more closely in that capacity, as they apply to other subjects. Privileges of Parliament do not place a Member of parliament on a footing different from that of an ordinary citizen in the matter of the application of laws unless there are good and sufficient reasons in the interest of Parliament itself to do so.The fundamental principle is that all citizens, including members of Parliament, have to be treated equally in the eye of the law. Unless so specified in the Constitution or in any law, a member of Parliament cannot claim any privileges higher than those enjoyed by any ordinary citizen in the matter of the application of law.
36. It is clear that in the matter of the application of laws, particularly, the provisions of the Lokayukt Act and the Prevention of Corruption Act, 1988, insofar as the jurisdiction of the Lokayukt or the Madhya Pradesh Special Establishment is concerned, all public servants except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act fall in the same category and cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. In other words, the privileges are available only insofar as they are necessary in order that the House may freely perform its functions but do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiations.REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 613 OF 2007
Justice Ripusudan Dayal (Retd.) & Ors.
.... Petitioner (s)
Versus
State of M.P. & Ors.
.... Respondent(s)
JUDGMENT
P.Sathasivam, CJI.
1)
The present writ petition, under Article 32 of the
Constitution of India, has been filed by the petitioners
challenging the validity of certain letters issued by Mr. Qazi
Aqlimuddin – Secretary, Vidhan Sabha (Respondent No.4
herein) on various dates against them with regard to a case
registered by the Special Police Establishment (SPE) of the
Lokayukt Organisation, against the officials of the Vidhan
Sabha Secretariat as well as against the concerned officials
of
the
Capital
Project
Administration-the
Contractor
1
Page 1
Company alleging irregularity in the construction work
carried out in the premises of Vidhan Sabha.
2)
It is relevant to mention that Petitioner No.1 herein was
the Lokayukt of the State of Madhya Pradesh appointed
under the provisions of the Madhya Pradesh Lokayukt Evam
Uplokayukt Act, 1981 (hereinafter referred to as “the
Lokayukt Act”).
Petitioner No.2 was the Legal Advisor, a
member of the Madhya Pradesh Higher Judicial Service on
deputation with the Lokayukt and Petitioner Nos. 3 to 5 were
the officers of Madhya Pradesh Special Police Establishment.
3)
The petitioners herein claimed that the said letters
violate their fundamental rights under Articles 14, 19 and 21
of the Constitution of India and are contrary to Article 194(3)
and prayed for the issuance of a writ, order or direction(s)
quashing the said letters as well as the complaints filed by
Respondent Nos. 5, 6 (since expired), 7, 8 and 9 herein.
4)
Brief facts
2
Page 2
(a)
An anonymous complaint was received on 21.06.2005
in the office of the Lokayukt stating that a road connecting
the Vidhan Sabha with Vallabh Bhawan, involving an
expenditure of about Rs. 2 crores, was being constructed
without inviting tenders and complying with the prescribed
procedure.
It was also averred in the said complaint that
with a view to regularize the above-said works, the officers
misused their official position and got the work sanctioned to
the Capital Project Administration in violation of the rules
which amounts to serious financial irregularity and misuse of
office. It was also mentioned in the said complaint that in
order to construct the said road, one hundred trees had been
cut down without getting the permission from the concerned
department.
The said complaint was registered as E.R.
No.127 of 2005. During the inquiry, the Deputy Secretary,
Housing and Environment Department, vide letter dated
18.08.2005 stated that the work had been allotted to the
lowest tenderer and the trees were cut only after obtaining
the requisite permission from the Municipal Corporation. In
view of the said reply, the matter was closed on 22.08.2005.
3
Page 3
(b)
On 22.12.2006, again a complaint was filed by one Shri
P.N. Tiwari, supported with affidavit and various documents,
alleging the same irregularities in the said construction work
by the officers of the Vidhan Sabha Secretariat in collusion
with the Capital Project Administration which got registered
as E.R. No. 122 of 2006. A copy of the said complaint was
sent
to
the
Principal
Secretary,
Madhya
Pradesh
Government, Housing and Environment Department for
comments. In
reply,
Government, Housing
the
and
Additional
Secretary,
Environment
M.P.
Department
submitted the comments along with certain documents
stating that the Building Controller Division working under
the Capital Project Administration was transferred to the
administrative control of the Vidhan Sabha Secretariat vide
Order dated 17.07.2000 and consequently the Secretariat
Vidhan Sabha was solely responsible for the construction
and maintenance work within the Vidhan Sabha premises.
(c)
On 26.06.2007, a request was made to the Principal
Secretary, Housing and Environment Department to submit
all the relevant records, tender documents, note sheets,
4
Page 4
administrative,
10.10.2007.
technical
By
letter
and
budgetary
dated
sanctions
17.07.2007,
the
by
Under
Secretary of the said Department informed that since the
administrative sanctions were issued by the Secretariat
Vidhan Sabha, the materials were not available with them.
In view of the said reply, the Lokayukt-(Petitioner No.1
herein) sent letters dated 31.07.2007 addressed to the
Principal Secretary, Housing and Environment Department,
Administrator, Capital Project Administration and the Deputy
Secretary, Vidhan Sabha Secretariat to appear before him
along with all the relevant records on 10.08.2007.
10.08.2007,
the
Principal
Secretary,
Housing
On
and
Environment appeared before the Lokayukt and informed
that
since
the
Controller
Buildings
of
Capital
Project
Administration was working under the administrative control
of
the
Vidhan
Sabha
Secretariat
since
2000,
all
sanctions/approvals and records relating to construction and
maintenance work were available in the Vidhan Sabha
Secretariat.
In view of the above reply, the Lokayukt
summoned the Secretary and the Deputy Secretary, Vidhan
5
Page 5
Sabha,
Respondent
Nos.
10
and
11
respectively
on
24.08.2007 to give evidence and produce all records/note-
sheets
of
administrative
and
technical
sanctions
and
budgetary and tender approvals relating to construction
works carried out in MLA Rest House and Vidhan Sabha
Premises in the year 2005-2006.
(d)
The Secretary, Vidhan Sabha, Respondent No. 10
herein, in his deposition dated 24.08.2007, admitted giving
of administrative approval to the estimated cost which was
available with the office of the Lokayukta and stated that the
relevant note-sheet was in the possession of the Hon’ble
Speaker, therefore, he prayed for time to produce the same
by 07.09.2007.
(e)
Vide
letter
dated
07.09.2007,
Respondent
No.10
conveyed his inability to produce the same. After receiving
information
from
the
Chief
Engineer,
Public
Works
Department, Capital Project, Controller Buildings, Vidhan
Sabha, Capital Project Administration and Chief Engineer,
Public Works Department vide letters dated 11.09.2007,
6
Page 6
13.09.2007 and 18.09.2007 respectively, the Legal Advisor –
Petitioner No. 2 herein – a member of the M.P. Higher Judicial
Service thoroughly examined the same and found that it is a
fit case to be sent to the SPE for taking action in accordance
with law.
opinion.
Petitioner No.1 was in agreement with the said
Thereafter, Crime Case No. 33/07 was registered
against the Secretary, Vidhan Sabha (Respondent No.10
herein), Shri A.P. Singh, Deputy Secretary, Vidhan Sabha, the
then Administrator, Superintendent Engineer, Capital Project
Administration and Contractors on 06.10.2007.
(f)
After registration of the case, Petitioner No.1 received
the impugned letters dated 15.10.2007 and 18.10.2007
alleging breach of privilege under Procedures and Conduct of
Business Rules 164 of the Madhya Pradesh Vidhan Sabha
against
him
and
the
officers
of
the
Special
Police
Establishment. In response to the aforesaid letters, by letter
dated 23.10.2007, the Secretary, Lokayukt explained the
factual position of Petitioner No.1 herein stating that no case
of breach of privilege was made out and also pointed out
that neither any complaint had been received against the
7
Page 7
Hon’ble Speaker nor any inquiry was conducted by the
Lokayukt Organization against him nor his name was found
in the FIR.
(g)
On
26.10.2007,
the
Secretary,
Vidhan
Sabha
–
Respondent No.4 sent six letters stating that the reply dated
23.10.2007 is not acceptable and that individual replies
should be sent by each of the petitioners.
(h)
Being aggrieved by the initiation of action by the
Hon’ble Speaker for breach of privilege, the petitioners have
preferred this writ petition.
5)
Heard Mr. K.K. Venugopal, learned senior counsel for
the writ petitioners, Mr. Mishra Saurabh, learned counsel for
the State-Respondent No. 1 and Mr. C.D. Singh, learned
counsel for the Secretary, Vidhan Sabha-Respondent No.4.
Contentions:
8
Page 8
6)
Mr. K.K. Venugopal, learned senior counsel for the
petitioners raised the following contentions:-
(i) Whether the Legislative Assembly or its Members enjoy
any privilege in respect of an inquiry or an investigation into
a criminal offence punishable under any law for the time
being in force, even when inquiry or investigation was
initiated in performance of duty enjoined by law enacted by
the very Legislative Assembly of which the breach of
privilege is alleged?
(ii) Whether officials of the Legislative Assembly also enjoy
the same privileges which are available to Assembly and its
Members?
(iii) Whether seeking mere information or calling the officials
of Vidhan Sabha Secretariat for providing information during
inquiry or investigation amounts to breach of privilege?
(iv) In view of the letter dated 23.08.2007, sent by the
Principal Secretary to Respondent Nos. 10 and 11, i.e.,
Secretary and Deputy Secretary, Vidhan Sabha respectively
9
Page 9
directing them to appear before the Lokayukt (as per the
order of the Speaker), whether Respondent Nos. 10 and 11
can have any grievance that information was sought from
them without sanction and knowledge of the Speaker?
7)
On behalf of the respondents, particularly, Respondent
No.4-Secretary, Vidhan Sabha, Mr. C.D. Singh, at the
foremost submitted that the present petition under Article 32
of the Constitution of India invoking writ jurisdiction of this
Court is not maintainable as no fundamental right of the
petitioners, as envisaged in Part III of the Constitution, has
been violated by any of the actions of Respondent No. 4. It
is their stand that every action pertaining to the Assembly
and its administration is within the domain and jurisdiction of
the Hon’ble Speaker.
The matter of privilege is governed
under the rules as contained in Chapter XXI of the Rules of
Procedure and Conduct of Business in the Madhya Pradesh
Vidhan Sabha.
Hence, it is stated that the writ petition is
liable to be dismissed both on the ground of maintainability
as well as on merits.
10
Page 10
8)
Before considering rival contentions and the legal
position, it is useful to recapitulate the factual details and
relevant statutory provisions which are as under:-
The legislature of the Central Province and Berar
enacted the Central Provinces and Berar Special Police
Establishment Act, 1947 (hereinafter referred to as ‘the SPE
Act’).
Under the said Act, a Special Police Force was
constituted which has power to investigate the offences
notified by the State Government under Section 3 of the said
Act, which reads as under:-
“3. Offences to be investigated by Special Police
Establishment:- The State Government may, by
notifications, specify the offences or classes of offences
which are to be investigated by (Madhya Pradesh) Special
Police Establishment.”
9)
On 16.09.1981, Legislative Assembly of the State of
Madhya Pradesh enacted the Lokayukt Act with the following
objective as has been stated in the preamble of the said
Act:-
“An Act to make provision for the appointment and
functions of certain authorities for the enquiry into the
allegation against “Public Servants” and for matters
connected there with.”
11
Page 11
Section 2(a) of the Lokayukt Act defines “officer” in the
following manner:-
“officer” means a person appointed to a public service or
post in connection with the affairs of the State of Madhya
Pradesh.”
Section 2(b) defines “allegation” as follows:-
“allegation” in relation to a public servant means any
affirmation that such public servant,
(i) has abused his position as such to obtain any gain or
favour to himself or to any other person or to cause undue
harm to any person;
(ii) was actuated in the discharge of his functions as such
public servant by improper or corrupt motives;
(iii) is guilty of corruption; or
(iv) is in possession of pecuniary resources or property
disproportionate to his known sources of income and such
pecuniary resources or property is held by the public
servant personally or by any member of his family or by
some other person on his behalf.
Explanation:- For the purpose of this sub-clause “family”
means husband, wife, sons and unmarried daughters living
jointly with him;”
The phrase “Public Servant” has been defined under Section
2(g) of the Lokayukt Act in the following terms:
“Public Servant” means a person falling under any of the
following categories, namely:-
(i) Minister;
12
Page 12
(ii) a person having the rank of a Minister but shall not
include Speaker and Deputy Speaker of the Madhya
Pradesh Vidhan Sabha;
(iii) an officer referred to in clause (a);
(iv) an officer of an Apex Society or Central Society within
the meaning of Clause (t-1) read with Clauses (a-1), (c-1)
and (z) of Section 2 of the Madhya Pradesh Co-operative
Societies Act, 1960 (No. 17 of 1961).
(v) Any person holding any office in, or any employee of -
(i) a Government Company within the meaning of
Section 617 of the Companies Act, 1956; or
(ii) a Corporation or Local Authority established by
State Government under a Central or State
enactment.
(vi) (a) Up-Kulpati, Adhyacharya and Kul Sachiva of the
Indira Kala Sangit Vishwavidyalaya constituted under
Section 3 of the Indira Kala Sangit Vishwavidyalaya Act,
1956 (No. 19 of 1956);
(b) Kulpati and Registrar of the Jawahar Lal Nehru Krishi
Vishwavidyalaya constituted under Section 3 of the
Jawaharlal Nehru Krishi Vishwavidyalaya Act, 1963 (No. 12
of 1963);
Kulpati Rector and Registrar of the Vishwavidyalay
constituted under Section 5 of the Madhya Pradesh
Vishwavidyalay Adhiniyam, 1973 (No. 22 of 1973).”
10) Thus, all persons, except those specifically excluded
under the said definition, come within the domain of the
Lokayukt Act and the Lokayukt can, therefore, entertain
complaints and take actions in accordance with the said
provisions. Section 7 of the said Act thereafter defines the
13
Page 13
role of the Lokayukt and the Up-Lokayukt in the following
terms:-
“7. Matters which may be enquired into by Lokayukt
or Up-Lokayukt:-
Subject to the provision of this Act, on receiving complaint
or other information:-
(i) the Lokayukt may proceed to enquire into an allegation
made against a public servant in relation to whom the
Chief Minister is the competent authority.
(ii) the Up-Lokayukt may proceed to enquire into an
allegation made against any public servant other than
referred to in clause (i)
Provided that the Lokayukt may enquire into an allegation
made against any public servant referred to in clause (ii).
Explanation:- For the purpose of this Section, the
expression “may proceed to enquire”, and “may enquire”,
include investigation by Police agency put at the disposal
of Lokayukt and Up-Lokayukt in pursuance of sub-Section
(3) of Section 13.
11) On
14.09.2000,
the
State
Government
issued
a
notification in exercise of powers under Section 3 of the SPE
Act
by
which
the
Special
Police
Establishment
was
empowered to investigate offences with regard to the
following offences:-
(a) Offences punishable under the Prevention of Corruption
Act, 1988 (No. 49 of 1988);
(b) Offences under Sections 409 and 420 and Chapter XVIII
of the Indian Penal Code, 1860 (No. XLV of 1860) when
they are committed, attempted or abused by public
14
Page 14
servants or employees of a local authority or a statutory
corporation, when such offences adversely affect the
interests of the State Government or the local authority or
the statutory corporation, as the case may be;
(c) Conspiracies in respect of offences mentioned in item
(a) and (b) above; and
(d) Conspiracies in respect of offences mentioned in item
(a) and (b) shall be charged with simultaneously in one trial
under the provisions of Criminal Procedure Code, 1973 (No.
2 of 1974).
12) As per the provision of Section 4 of the SPE Act, the
superintendence of investigation by the M.P. Special Police
Establishment was vested in the Lokayukt appointed under
the Lokayukt Act.
13) On 22.12.2006, a complaint was received from one Shri
P.N. Tiwari supported by affidavit and various documents
making allegations that works had been carried out in the
new Assembly building by the Capital Project Administration
in gross violation of the rules, without making budgetary
provisions and committing financial irregularities. The said
complaint was registered as E.R. 122 of 2006. In the said
complaint, it was mentioned that:
(a)
An order had been issued to the Administrator, Capital
Project Administration by Shri A.P. Singh, Deputy
15
Page 15
Secretary, Vidhan Sabha giving administrative approval
for the estimate of the cost of construction against
rules and without making budgetary provision vide
order dated 19.10.2005 in respect of the following
works:
S.No.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
Name of works
Amount in
lakhs
Construction of 30 rooms in MLA Rest Rs. 5.51
House Block-2
Construction of toilets in Block 1-3 of Rs. 25.48
MLA Rest House
Construction of shops in MLA Rest Rs. 5.98
House premises
Up-gradation/construction of road from
Mazar to Gate No. 5 of Vidhan Sabha
(Old Jail)
(a) Construction of road from Mazar to Rs. 22.52
Rotary
(b) Construction of road from Rotary to Rs. 13.23
Jail Road
Construction of lounge for the Speaker Rs. 6.80
and Officers in Vidhan Sabha Hall
Construction of new reception zone Rs. 54.00
(including parking/road) for Vidhan
Sabha
Upgradation work of campus lights and Rs. 26.60
electric work in MLA Rest House
premises
Construction of road from Vidhan
Sabha
to
Secretariat
(including
development of helipad and connected
area) and proposed upgradation and
development
work
of
M.P.
Pool/spraypond:
(a) Construction of new road from the Rs. 10.85
VIP entrance upto the proposed new
gate
(b) Construction of road from present Rs. 21.56
Char Diwari to Rotary
16
Page 16
(c) Construction of road from Rotary to Rs. 12.00
Secretariat
Total sanctioned amount
Rs. 204.53
(b)
the officers had abused their powers by getting the
works carried out without making budgetary provisions
and
without
getting
approval
from
the
Finance
Department in respect of the works specified at item
numbers (iv), (vi), (vii) and (viii) above.
(c)
Following financial irregularities were also pointed out:
(i)
Though administrative approval was accorded by
Shri A.P. Singh, Deputy Secretary, Vidhan Sabha
on 19.10.2005, works had already been executed
and inaugurated in the presence of the then Chief
Minister, Shri Babulal Gaur and the Speaker,
Vidhan Sabha and other Ministers on 03.08.2005.
The proper procedure is to first invite tenders and
it is only after the acceptance of the suitable
tenders that work orders are to be issued.
(ii)
Budgetary head of the Vidhan Sabha is 1555. This
head is meant for maintenance and not for new
17
Page 17
construction,
but
the
administrative
approval
dated 19.10.2005 was accorded by Shri A.P. Singh,
Deputy Secretary, Vidhan Sabha in respect of new
works of total value of Rs. 160.76 lakh.
(iii) Works of the value of Rs. 160.76 lakh were carried
out without any budgetary provision and also
without the approval of the Finance Department.
Furthermore, a proposal had been sent by the
Capital Project Administration for sanction of
budget but the same was not approved by the
Finance Department.
Even then the works were
got executed.
(iv) As
per
the
approval
dated
19.10.2005,
expenditure was to be incurred from the main
budgetary head 2217 which is the head of Urban
Development.
From
that head,
construction
activities in the Vidhan Sabha premises could not
be carried out.
18
Page 18
(v)
The Controller Buildings, Capital Project (Vidhan
Sabha) executed the works in collusion with the
other officers and in violation of the rules. It was
stated that the officials had abused their powers to
regularize their irregular activities. The works had
been undertaken for the personal benefit of some
officers and payments were made in violation of
the rules.
14) By letter dated 04.01.2007, a copy of the complaint
was sent to the Principal Secretary, Madhya Pradesh
Government, Housing and Environment Department calling
factual comments along with the relevant documents. The
comments were submitted by the Additional Secretary, M.P.
Government, Housing and Environment Department vide
letter dated 15.05.2007.
The comments, inter alia, stated
that the Building Controller Division functioning under the
Capital
Project
Administration
was
transferred
to
the
administrative control of the Vidhan Sabha Secretariat vide
order dated 17.07.2000, consequently, Secretariat Vidhan
Sabha
is
solely
responsible
for
the
construction
and
19
Page 19
maintenance works within the Vidhan Sabha premises. On
examination of the comments received along with the
supporting
documents,
following
discrepancies
were
revealed:
(a)
Whereas the comments stated that budget provision
had been made for an amount of Rs.204.53 lakh for the
purpose of special repairs and maintenance of old and
new Vidhan Sabha and MLA Rest House under Demand
No. 21, main head 2217, sub main head 01, minor head
001, development head 1555 (3207), no amounts were
specified under those heads, sub heads and minor
heads which were related to new construction works;
(b)
Whereas the comments stated that work had been
executed through tenders, but tender documents had
not been annexed.
(c)
Whereas the comments stated that approval in respect
of nine works had been accorded by the Secretariat,
Vidhan Sabha on the request of the Controller Buildings
on 21.03.2005, however, it is not clear from the letter
20
Page 20
dated 21.03.2005 that administrative approval had
been accorded; and
(d)
Whereas the comments stated that amended sanction
was granted vide order dated 19.10.2005, while the
letter dated 19.10.2005 does not indicate that it was an
amended administrative sanction.
15) In view of the above preliminary observations, as noted
above, a request was made to the Principal Secretary,
Housing and Environment Department to submit all relevant
records, tender documents, note-sheets, administrative,
technical and budgetary sanctions by 10.07.2007.
It was
again informed by the Under Secretary, Housing and
Environment Department, vide letter dated 17.07.2007 that
since the administrative sanctions were issued by the
Secretariat Vidhan Sabha, the note-sheets/records relating
to such sanctions were not available with the Housing and
Environment Department.
16) In view of the reply submitted by the Under Secretary,
Housing and Environment Department, the Petitioner sent a
21
Page 21
letter dated 31.07.2007 addressed to the Principal Secretary,
Housing
and
Environment
Department,
Administrator,
Capital Project Administration and the Deputy Secretary,
Vidhan Sabha Secretariat to appear before the Lokayukt
along with all relevant information/records on 10.08.2007.
17) On the date fixed for appearance, i.e., 10.08.2007, the
Principal Secretary, Housing and Environment appeared
before the Lokayukt. He informed that since the Controller
Buildings of Capital Project Administration was working
under the administrative control of the Vidhan Sabha
Secretariat since the year 2000, all sanctions/approvals and
records regarding construction and maintenance works
carried out in MLA Rest House and Vidhan Sabha premises
were available in the Vidhan Sabha Secretariat.
On
receiving such information, the Principal Secretary, Vidhan
Sabha Secretariat, informed that the records relating to
construction works were not with him and that such type of
work was looked after by the Secretary and the Deputy
Secretary, Vidhan Sabha.
In this situation, Secretary and
Deputy Secretary, Vidhan Sabha Secretariat and Controller
22
Page 22
Buildings, Vidhan Sabha, Capital Project Administration were
summoned to give evidence and produce all records/note-
sheets
of
administrative
and
technical
sanctions
and
budgetary and tender approvals relating to construction
works carried out in MLA Rest House and Vidhan Sabha
premises in the year 2005-06 on 24.08.2007.
Summons
were issued as per the provisions of Section 11(1) of the
Lokayukt Act, read with Sections 61 and 244 of the Code of
Criminal Procedure, 1973. Summons were received by the
Deputy Secretary, Vidhan Sabha, Shri G.K. Rajpal and the
Controller Buildings, Shri Devendra Tiwari. Process Server of
the Lokayukt Organisation tried to serve summons on Shri
Israni in his office.
Process Server contacted Shri Harish
Kumar Shrivas, P.A. to Shri Israni.
summons to Shri Israni.
The P.A. took the
After coming back, he asked the
Process Server to wait till 4.00 p.m. Later, the P.A. told the
Process Server to take permission of the Hon’ble Speaker to
effect service of the summons on the Secretary.
As such,
summons could not be served on Shri Israni.
23
Page 23
18) Thereafter, D.O. letter dated 14.08.2007 was received
from the Principal Secretary, Vidhan Sabha stating that as
per the direction of the Hon’ble Speaker, he was informing
the Lokayukt Organization that:
(a)
The Vidhan Sabha Secretariat was not aware as to the
complaint which was being inquired into;
(b)
All
proceedings
relating
to
invitation
of
tenders,
technical sanction, work orders and payment etc. were
conducted through the Controller Buildings, Capital
Project Administration and, therefore, all the records
relating to these works should be available with them;
(c)
If, a copy of the complaint, which is being inquired into,
is made available to the Vidhan Sabha Secretariat, it
would be possible to make the position more clear.
That was the reason why the Speaker had not granted
permission to the Deputy Secretary to appear in the
Office of the Lokayukt; and
24
Page 24
(d)
Under the provisions of Section 2(g)(ii) of the Lokayukt
Act, the Speaker, the Deputy Speaker and the Leader of
Opposition are exempted from the jurisdiction of the
Lokayukt.
19)
Shri
Israni
appeared
before
the
Lokayukt
24.08.2007 when his deposition was recorded.
on
In his
deposition, he stated that the administrative approval to the
estimated cost dated 19.10.2005 was given, which was
available with the office of the Lokayukt. He further stated
that note-sheet relating to administrative approval had been
prepared
which
was
in
possession
of
the
Speaker.
Accordingly, he was required to produce the same by
07.09.2007.
20) Information was called for from the Chief Engineer,
Public Works Department, Capital Project Administration,
Controller
Buildings,
Administration
Department.
and
Vidhan
Chief
Sabha,
Engineer,
Capital Project
Public Works
The same was received vide letters dated
11.09.2007, 13.09.2007 and 18.09.2007 respectively.
25
Page 25
21) Scrutiny note was prepared by the Legal Advisor, Mrs.
Vibhawari Joshi, a member of the Madhya Pradesh Higher
Judicial Service, on deputation to the Lokayukt Organization,
with the assistance of the Technical Cell, with the approval
of the Lokayukt. After examination of the information and
records received from the various authorities concerned, she
prima facie found established that:
(a)
contracts in respect of construction of roads and
reception plaza and renovation of toilets were awarded at
rates higher than the prevailing rates;
(b)
works were got executed even when there were no
budgetary provisions. Demand for budget was made from
the Finance Department but the same had not been
accepted;
(c)
new construction works of the value of Rs. 173.54 lakh
were got executed from the maintenance head, which was
not permissible, since the maintenance head is meant for
maintenance works and not for new works;
26
Page 26
(d)
for new construction works of the value of Rs.173.54
lakh, administrative approval and technical sanction had
been accorded by the authorities, who were not competent
to do so;
(e)
works of Rs.205.61 lakh were got executed without
obtaining administrative approval and technical sanction;
(f)
records show that measurements of WBM work were
recorded
after
the
Bitumen
work
(tarring)
had
been
completed. Proper procedure is that first the measurements
of WBM work are recorded, thereafter Bitumen work is
executed and it is only thereafter measurements of Bitumen
work are recorded.
Discrepancies in the recording of
measurements create doubt;
(g)
Rules provide that in the Notice Inviting Tenders (NIT),
schedule of quantities is annexed so that the tenderers may
make proper assessment while quoting rates, but in the
present case, in the NIT for roads in Schedule-I, quantities
were not specified. So, it was difficult for the tenderers to
27
Page 27
make proper assessment while quoting rates.
This throws
doubt on the legitimacy of the process.
(h)
(i)
Road was to be constructed within the diameter of
300 meters. For this small area, work was split up into
five portions and four contractors were engaged. Rules
provide that for one road, there should be one
estimate, one technical sanction and one NIT.
In the
present case, five estimates were prepared, five
technical sanctions were granted, five tenders were
invited and four contractors were engaged. This throws
doubt on the legitimacy of the process;
(ii)
There
construction
are
of
three
roads,
processes
i.e.,
involved
WBM,
in
Bitumen
the
and
thermoplastic. As per the rules and practice, for all the
three processes, there should be one tender, but in the
present case, the work was split up into three portions
inasmuch work of WBM was given to two contractors,
work of Bitumen to one other and work of thermoplastic
to still another;
28
Page 28
(iii) Cement concrete road was constructed for a small
part of the same road. For this small part of the road
another separate NIT was invited and work was
awarded to a separate contractor, i.e., the fifth
contractor;
(i)
The Secretary and the Deputy Secretary of Vidhan
Sabha
Engineer
Secretariat
and
and
Controller
Administrator,
Buildings
of
Superintending
Capital
Project
Administration in collusion with the contractors, in order to
give undue benefits to them by abusing their official position
caused loss of Rs.12,62,016/- to Rs.20,71,978/- to the
Government.
In view of the above, the Legal Advisor (Petitioner No.2
herein) recorded her opinion that it is a fit case to be sent to
the SPE for taking action in accordance with law.
The
Lokayukt Petitioner No. 1 agreed with the note of the Legal
Advisor and observed that it is a fit case to be dealt with
further by the SPE.
The case was accordingly sent to the
SPE.
29
Page 29
22) The SPE, thereafter, registered Crime Case No. 33/07
on 06.10.2007 against Shri Bhagwan Dev Israni, Secretary
Vidhan Sabha, Shri A.P. Singh, Deputy Secretary Vidhan
Sabha, the then Administrator, Superintending Engineer,
Capital Project Administration and Contractors.
Soon after
the registration of the criminal case, the petitioners received
the impugned notices dated 15.10.2007 wherein allegations
of breach of privilege were made against the petitioners.
The petitioners understood that the said letters had been
issued on the basis of some complaints by the Members of
Legislative Assembly.
The petitioners received further
notices for breach of privilege on the basis of the complaint
made by Shri Gajraj Singh, MLA.
23) In response to the aforesaid letters, the Secretary of the
Lokayukt Organization, on the direction of the Petitioner No.
1 sent a letter dated 23.10.2007, to Respondent No. 4-Shri
Qazi Aqlimuddin, Secretary, Vidhan Sabha giving in details
about the constitutional, legal and factual position stating
that no case of privilege was made out. It was also pointed
out that neither any complaint had been received against
30
Page 30
the Speaker, Respondent No. 1 nor any inquiry was
conducted by the Lokayukt Organization against him nor was
he named in the FIR.
24) Respondent No. 4, i.e., Secretary, Vidhan Sabha,
thereafter
sent
petitioners.
six
letters
dated
26.10.2007
to
the
By the said letters, the petitioners were
informed that the reply dated 23.10.2007 had not been
accepted and it was directed that individual replies should
be sent by each of the petitioners. Being aggrieved by the
initiation of action by the Speaker for breach of privilege
against the petitioners, as noted above, the petitioners
herein filed the present writ petition.
Maintainability of the writ petition under Article 32 of
the Constitution:
25) Mr.
C.D.
Singh,
learned
counsel
appearing
for
Respondent No.4, by drawing our attention to the relief
prayed for and of the fact that quashing relates to letters on
various dates wherein after pointing out the notice of breach
of privilege received from the members of Madhya Pradesh
Assembly sought comments/opinion within seven days for
31
Page 31
consideration of the Hon’ble Speaker, submitted that the
proper course would be to submit their response and writ
petition under Article 32 of the Constitution of India is not
maintainable.
26) Mr.
Venugopal,
learned
senior
counsel
for
the
petitioners submitted that as the impugned proceedings
which are mere letters calling for response as they relate to
breach of privilege, amount to violation of rights under
Article 21 of the Constitution, hence, the present writ
petition is maintainable. In support of his claim, he referred
to various decisions of this Court.
27) There is no dispute that all the impugned proceedings
or notices/letters/complaints made by various members of
the Madhya Pradesh Assembly claimed that the writ
petitioners violated the privilege of the House. Ultimately, if
their replies are not acceptable, the petitioners have no
other remedy except to face the consequence, namely,
action under Madhya Pradesh Vidhan Sabha Procedure and
Conduct of Business Rules, 1964. If any decision is taken by
32
Page 32
the House, the petitioners may not be in a position to
challenge the same effectively before the court of law.
In
The Bengal Immunity Company Limited vs. The State
of Bihar and Others, [1955] 2 SCR 603, seven Hon’ble
Judges of this Court accepted similar writ petition. The said
case arose against the judgment of the High Court of Patna
dated 04.12.1952 whereby it dismissed the application made
by
the
appellant-Company
under
Article
226
of
the
Constitution praying for an appropriate writ or order
quashing the proceedings issued by the opposite parties for
the purpose of levying and realising a tax which is not
lawfully leviable on the petitioners and for other ancillary
reliefs. As in the case on hand, it has been argued before
the seven-Judge Bench that the application was premature,
for there has, so far, been no investigation or finding on facts
and no assessment under Section 13 of the Act. Rejecting
the said contention, this Court held thus:
“.... In the first place, it ignores the plain fact that this
notice, calling upon the appellant company to forthwith get
itself registered as a dealer, and to submit a return and to
deposit the tax in a treasury in Bihar, places upon it
considerable hardship, harassment and liability which, if
33
Page 33
the Act is void under article 265 read with article 286
constitute, in presenti, an encroachment on and an
infringement of its right which entitles it to immediately
appeal to the appropriate Court for redress. In the next
place, as was said by this Court in Commissioner of
Police, Bombay vs. Gordhandas Bhanji, [1952] 3 SCR
135 when an order or notice emanates from the State
Government or any of its responsible officers directing a
person to do something, then, although the order or notice
may eventually transpire to be ultra vires and bad in law, it
is obviously one which prima facie compels obedience as a
matter of prudence and precaution. It is, therefore, not
reasonable to expect the person served with such an order
or notice to ignore it on the ground that it is illegal, for he
can only do so at his own risk and that a person placed in
such a situation has the right to be told definitely by the
proper legal authority exactly where he stands and what
he may or may not do.
Another plea advanced by the respondent State is
that the appellant company is not entitled to take
proceedings praying for the issue of prerogative writs
under article 226 as it has adequate alternative remedy
under the impugned Act by way of appeal or revision. The
answer to this plea is short and simple. The remedy under
the Act cannot be said to be adequate and is, indeed,
nugatory or useless if the Act which provides for such
remedy is itself ultra vires and void and the principle relied
upon can, therefore, have no application where a party
comes to Court with an allegation that his right has been or
is being threatened to be infringed by a law which is ultra
vires the powers of the legislature which enacted it and as
such void and prays for appropriate relief under article
226. As said by this Court in Himmatlal Harilal Mehta
vs. The State of Madhya Pradesh (supra) this plea of
the State stands negatived by the decision of this Court in
The State of Bombay vs. The United Motors (India)
Ltd. (supra).
We are, therefore, of the opinion, for
reasons stated above, that the High Court was not right in
holding that the petition under article 226 was
misconceived or was not maintainable. It will, therefore,
have to be examined and decided on merits.... ....”
28) In East India Commercial Co., Ltd., Calcutta and
Another vs. The Collector of Customs, Calcutta, [1963]
34
Page 34
3 SCR 338, which is a three-Judge Bench decision, this Court
negatived similar objection as pointed out in our case by the
State.
In that case, the appellants-East India Commercial
Co. Ltd., Calcutta had brought into India from U.S.A. a large
quantity of electrical instruments under a licence.
respondent,
Collector
of
Customs,
Calcutta,
The
started
proceedings for confiscation of these goods under Section
167(8) of the Sea Customs Act, 1878. The appellants mainly
contended
that
the
proceedings
are
entirely
without
jurisdiction as the Collector can confiscate only when there is
an import in contravention of an order prohibiting or
restricting it and in that case the Collector was proceeding to
confiscate on the ground that a condition of the licence
under which the goods had been imported had been
disobeyed.
The appellants, therefore, prayed for a writ of
prohibition directing the Collector to stop the proceedings.
The objection of the other side was that the appellant had
approached the High Court at the notice stage and the same
cannot be considered under Article 226 of the Constitution.
Rejecting the said contention, this Court held:
35
Page 35
“.....The respondent proposed to take action under Section
167(8) of the Sea Customs Act, read with Section 3(2) of
the Act. It cannot be denied that the proceedings under
the said sections are quasi-judicial in nature. Whether a
statute provides for a notice or not, it is incumbent upon
the respondent to issue notice to the appellants disclosing
the circumstances under which proceedings are sought to
be initiated against them. Any proceedings taken without
such notice would be against the principles of natural
justice. In the present case, in our view, the respondent
rightly issued such a notice wherein specific acts
constituting contraventions of the provisions of the Acts for
which action was to be initiated were clearly mentioned.
Assuming that a notice could be laconic, in the present
case it was a speaking one clearly specifying the alleged
act of contravention. If on a reading of the said notice, it is
manifest that on the assumption that the facts alleged or
allegations made therein were true, none of the conditions
laid down in the specified sections was contravened, the
respondent would have no jurisdiction to initiate
proceedings pursuant to that notice. To state it differently,
if on a true construction of the provisions of the said two
sections the respondent has no jurisdiction to initiate
proceedings or make an inquiry under the said sections in
respect of certain acts alleged to have been done by the
appellants, the respondent can certainly be prohibited from
proceeding with the same. We, therefore, reject this
preliminary contention.”
29) In Kiran Bedi & Ors. vs. Committee of Inquiry &
Anr. [1989] 1 SCR 20, which is also a three Judge Bench
decision,
the
following
conclusion
in
the
penultimate
paragraph is relevant:
“47 As regards points (v), (vi) and (vii) suffice it to point
out that the petitioners have apart from filing special leave
petitions also filed writ petitions challenging the very same
orders and since we have held that the action of the
Committee in holding that the petitioners were not covered
36
Page 36
by Section 8B of the Act and compelling them to enter the
witness box on the dates in question was discriminatory
and the orders directing complaint being filed against the
petitioners were illegal, it is apparently a case involving
infringement of Articles 14 and 21 of the Constitution. In
such a situation the power of this Court to pass an
appropriate order in exercise of its jurisdiction under
Articles 32 and 142 of the Constitution cannot be seriously
doubted particularly having regard to the special facts and
circumstances of this case. On the orders directing filing of
complaints being held to be invalid the consequential
complaints and the proceedings thereon including the
orders of the Magistrate issuing summons cannot survive
and it is in this view of the matter that by our order dated
18th August, 1988 we have quashed them. As regards the
submission that it was not a fit case for interference either
under Article 32 or Article 136 of the Constitution inasmuch
as it was still open to the petitioners to prove their
innocence before the Magistrate, suffice it to say that in
the instant case if the petitioners are compelled to face
prosecution in spite of the finding that the orders directing
complaint to be filed against them were illegal it would
obviously cause prejudice to them. Points (v), (vi) and (vii)
are decided accordingly.”
It is clear from the above decisions that if it is established
that the proposed actions are not permissible involving
infringement of Articles 14 and 21 of the Constitution, this
Court is well within its power to pass appropriate order in
exercise of its jurisdiction under Articles 32 and 142 of the
Constitution.
Further, if the petitioners are compelled to
face the privilege proceedings before the Vidhan Sabha, it
would cause prejudice to them.
Further, if the petitioners
are compelled to face the privilege motion in spite of the fact
37
Page 37
that no proceeding was initiated against Hon’ble Speaker or
Members of the House but only relating to the officers in
respect of contractual matters, if urgent intervention is not
sought
for
by
exercising
extraordinary
jurisdiction,
undoubtedly, it would cause prejudice to the petitioners.
30) Accordingly, we reject the preliminary objection raised
by the counsel for Respondent No.4 and hold that writ
petition under Article 32 is maintainable.
31) With the above factual background and the relevant
statutory
provisions,
let
us
examine
the
rival
submissions.
32) Now, we will consider the contentions raised by Mr.
Venugopal.
As mentioned earlier, Petitioner No. 1 is the
Lokayukt appointed under the provisions of the Lokayukta
Act exercising powers and functions as provided under the
Act. In the course of the performance of the said functions,
the Lokayukt Organization received a complaint regarding
certain irregularities in the award of contracts.
Petitioner
Nos. 1 and 2, therefore, conducted preliminary inquiry in the
38
Page 38
matter and on finding that a prima facie case under the
Prevention of Corruption Act was made out, the matter was
referred to the SPE established under the provisions of the
M.P. Special Police Establishment Act, 1947 to be dealt with
further, and thereafter, a case was registered by the said
Establishment under the provisions of the Prevention of
Corruption Act, 1988.
33) Article 194(3) of the Constitution provides for privileges
of the Legislative Assembly and its members which reads as
under:
“194. Powers, privileges, etc, of the House of
Legislatures and of the members and committees
thereof
(1) ***
(2) ***
(3) In other respects, the powers, privileges and
immunities of a House of the Legislature of a State, and of
the members and the committees of a House of such
Legislature, shall be such as may from time to time
be defined by the Legislature 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
Section 26 of the Constitution forty fourth Amendment Act,
1978.”
39
Page 39
34) Article 194 is similar to Article 105 of the Constitution,
which provides for the privileges of Parliament and its
Members.
The said Articles provide that the privileges
enjoyed by the legislature shall be such as may from time to
time be defined by the legislature by law. It is relevant to
mention that any law made by the Parliament or the
legislature is subject to the discipline contained in Part III of
the Constitution. The privileges have not been defined but
the above Article provides that until the same are so defined
(i.e. by the legislature by law), they shall be those which the
House or its members and committees enjoyed immediately
before the coming into force of Section 26 of the Constitution
Forty-fourth Amendment Act, 1978.
35) As per Chapter XI of the ‘Practice and Procedure of
Parliament’ (Fifth edition), by M.N. Kaul and S.L. Shakdher in
interpreting parliamentary privileges at Page 211 observed:
“...regard must be had to the general principle that the
privileges of Parliament are granted to members in order
that they may be able to perform their duties in Parliament
without let or hindrance.
They apply to individual
members only insofar as they are necessary in order that
the House may freely perform its functions. They do not
discharge the member from the obligations to society
40
Page 40
which apply to him as much and perhaps more closely in
that capacity, as they apply to other subjects. Privileges of
Parliament do not place a Member of parliament on a
footing different from that of an ordinary citizen in the
matter of the application of laws unless there are good and
sufficient reasons in the interest of Parliament itself to do
so.
The fundamental principle is that all citizens,
including members of Parliament, have to be treated
equally in the eye of the law. Unless so specified in the
Constitution or in any law, a member of Parliament cannot
claim any privileges higher than those enjoyed by any
ordinary citizen in the matter of the application of law.”
36) It is clear that in the matter of the application of laws,
particularly, the provisions of the Lokayukt Act and the
Prevention of Corruption Act, 1988, insofar as the jurisdiction
of
the
Lokayukt
or
the
Madhya
Pradesh
Special
Establishment is concerned, all public servants except the
Speaker and the Deputy Speaker of the Madhya Pradesh
Vidhan Sabha for the purposes of the Lokayukt Act fall in the
same category and cannot claim any privilege more than an
ordinary citizen to whom the provisions of the said Acts
apply.
In other words, the privileges are available only
insofar as they are necessary in order that the House may
freely perform its functions but do not extend to the
activities undertaken outside the House on which the
41
Page 41
legislative
provisions
would
apply
without
any
differentiations. In view of the above, we reject the contra
argument made by Mr. C.D. Singh.
37) As rightly submitted by Mr. K.K. Venugopal, in India,
there is rule of law and not of men and, thus, there is
primacy of the laws enacted by the legislature which do not
discriminate between persons to whom such laws would
apply. The laws would apply to all such persons unless the
law itself makes an exception on a valid classification. No
individual can claim privilege against the application of laws
and for liabilities fastened on commission of a prohibited Act.
38) In respect of the scope of the privileges enjoyed by the
Members, the then Speaker Mavalankar, while addressing
the conference of the Presiding Officers at Rajkot, on
03.01.1955, observed:
“The simply reply to this is that those privileges which are
extended by the Constitution to the legislature, its
members, etc. are equated with the privileges of the House
of Commons in England. It has to be noted here that the
House of Commons does not allow the creation of any
privileges; and only such privileges are recognized as have
existed by long time custom.”
42
Page 42
39) The scope of the privileges enjoyed depends upon the
need for privileges, i.e., why they have been provided for.
The basic premise for the privileges enjoyed by the members
is to allow them to perform their functions as members and
no hindrance is caused to the functioning of the House.
Committee of Privileges of the Tenth Lok Sabha, noted the
main arguments that have been advanced in favour of
codification, some of which are as follows:
“(i) Parliamentary privileges are intended to be enjoyed
on behalf of the people, in their interests and not against
the people opposed to their interests;
***
***
***
(iii) the concept of privileges for any class of people is
anarchronistic in a democratic society and, therefore, if
any, these privileges should be the barest minimum – only
those necessary for functional purposes – and invariably
defined in clear and precise terms;
(iv) sovereignty of Parliament has increasingly become a
myth and a fallacy for, sovereignty, if any, vests only in the
people of India who exercise it at the time of general
elections to the Lok Sabha and to the State Assemblies;
(v)
in a system wedded to freedom and democracy –
rule of law, rights of the individual, independent judiciary
and constitutional government – it is only fair that the
fundamental rights of the citizens enshrined in the
Constitution should have primacy over any privileges or
special rights of any class of people, including the elected
legislators, and that all such claims should be subject to
judicial scrutiny, for situations may arise where the rights
of the people may have to be protected even against the
43
Page 43
Parliament or against captive or capricious parliamentary
majorities of the moment;
(vi) the Constitution specifically envisaged privileges of
the Houses of parliament and State Legislatures and their
members and committees being defined by law by the
respective legislatures and as such the Constitution-
makers definitely intended these privileges being subject
to the fundamental rights, provisions of the Constitution
and the jurisdiction of the courts;
***
***
***
(viii) in any case, there is no question of any fresh
privileges being added inasmuch as (a) under the
Constitution, even at present, parliamentary privileges in
India continue in actual practice to be governed by the
precedents of the House of Commons as they existed on
the day our Constitution came into force; and (b) in the
House of Commons itself, creation of new privileges is not
allowed.”
40) The Committee also noted the main arguments against
codification. Argument no. (vii) is as under:
“(vii) The basic law that all citizens should be treated
equally before the law holds good in the case of members
of Parliament as well. They have the same rights and
liberties as ordinary citizens except when they perform
their duties in the Parliament. The privileges, therefore, do
not, in any way, exempt members from their normal
obligation to society which apply to them as much and,
perhaps, more closely in that as they apply to others.”
41) It is clear that the basic concept is that the privileges
are those rights without which the House cannot perform its
legislative functions. They do not exempt the Members from
their obligations under any statute which continue to apply
to them like any other law applicable to ordinary citizens.
44
Page 44
Thus, enquiry or investigation into an allegation of corruption
against some officers of the Legislative Assembly cannot be
said to interfere with the legislative functions of the
Assembly.
No one enjoys any privilege against criminal
prosecution.
42) According to Erskine May, the privilege of freedom from
arrest has never been allowed to interfere with the
administration of criminal justice or emergency legislation.
Thus, in any case, there cannot be any privilege against
conduct of investigation for a criminal offence.
There is a
provision that in case a member is arrested or detained, the
House ought to be informed about the same.
43) With regard to “Statutory detention”, it has been
stated, thus:
“The detention of a member under Regulation 18B of the
Defence (General), Regulation 1939, made under the
Emergency Powers (Defence) Acts 1939 and 1940, led to
the committee of privileges being directed to consider
whether such detention constituted a breach of Privilege of
the House; the committee reported that there was no
breach of privilege involved. In the case of a member
deported from Northern Rhodesia for non-compliance with
an order declaring him to be prohibited immigrant, the
speaker held that there was no prima-facie case of breach
of privilege.
45
Page 45
The detention of members in Ireland in 1918 and 1922
under the Defence of the Realm Regulations and the Civil
Authorities (Special Powers) Act, the speaker having been
informed by respectively the Chief Secretary of the Lord
Lieutenant and the secretary to the Northern Ireland
Cabinet, was communicated by him to the House.”
44) The
committee
for
Privileges
of
the
Lords
has
considered the effect of the powers of detention under the
Mental Health Act, 1983 on the privileges of freedom from
arrest referred to in Standing Order No. 79 that ‘no Lord of
Parliament is to be imprisoned or restrained without
sentence or order of the House unless upon a criminal
charge or refusing to give security for the peace’.
The
Committee accepted the advice of Lord Diplock and other
Law Lords that the provisions of the statute would prevail
against any existing privilege of Parliament or of peerage.
45) In Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha
and Others, (2007) 3 SCC 184, this Court observed:
“71. In U.P. Assembly case (Special Reference No. 1 of
1964), while dealing with questions relating to powers,
privileges and immunities of the State Legislatures, it was
observed as under:
“70. ... Parliamentary privilege, according to May, is the
sum of the peculiar rights enjoyed by each House
collectively as a constituent part of the High Court of
Parliament, and by Members of each House individually,
without which they could not discharge their functions,
46
Page 46
and which exceed those possessed by other bodies or
individuals. Thus, privilege, though part of the law of the
land, is to a certain extent an exemption from the
ordinary law. The particular privileges of the House of
Commons have been defined as
‘the sum of the fundamental rights of the House and
of its individual Members as against the prerogatives
of the Crown, the authority of the ordinary courts of
law and the special rights of the House of Lords’.
... .... The privileges of Parliament are rights which are
‘absolutely necessary for the due execution of its
powers’. They are enjoyed by individual Members,
because the House cannot perform its functions without
unimpeded use of the services of its Members; and by
each House for the protection of its Members and the
vindication of its own authority and dignity (May’s
Parliamentary Practice, pp. 42-43).”
The privilege of freedom from arrest has never been
allowed to interfere with the administration of criminal justice
or emergency legislation.
87. In U.P. Assembly case (Special Reference No. 1 of
1964) it was settled by this Court that a broad claim that
all the powers enjoyed by the House of Commons at the
commencement of the Constitution of India vest in an
Indian Legislature cannot be accepted in its entirety
because there are some powers which cannot obviously be
so claimed. In this context, the following observations
appearing at SCR p. 448 of the judgment should suffice:
(AIR p. 764, para 45)
“Take the privilege of freedom of access which is
exercised by the House of Commons as a body and
through its Speaker ‘to have at all times the right to
petition, counsel, or remonstrate with their Sovereign
through their chosen representative and have a
favourable construction placed on his words was justly
regarded by the Commons as fundamental privilege’
[Sir Erskine May’s Parliamentary Practice, (16th Edn.), p.
86]. It is hardly necessary to point out that the House
cannot claim this privilege. Similarly, the privilege to
pass acts of attainder and impeachments cannot be
claimed by the House. The House of Commons also
claims the privilege in regard to its own Constitution.
47
Page 47
This privilege is expressed in three ways, first by the
order of new writs to fill vacancies that arise in the
Commons in the course of a Parliament; secondly, by
the trial of controverted elections; and thirdly, by
determining the qualifications of its members in cases
of doubt (May’s Parliamentary Practice, p. 175). This
privilege again, admittedly, cannot be claimed by the
House. Therefore, it would not be correct to say that all
powers and privileges which were possessed by the
House of Commons at the relevant time can be claimed
by the House.”
195. The debate on the subject took the learned counsel
to the interpretation and exposition of law of Parliament as
is found in the maxim lex et consuetudo parliamenti as the
very existence of a parliamentary privilege is a substantive
issue of parliamentary law and not a question of mere
procedure and practice.”
46) In A. Kunjan Nadar vs. The State, AIR 1955
Travancore-Cochin 154, the High Court while dealing with
the
scope
of
privileges
under
Article
194(3)
of
the
Constitution held as under:-
“(3) Article 194(3) deals with the powers, privileges and
immunities of the Legislature and their members in Part A
states and Article 238 makes those powers, privileges and
immunities available to legislatures and its members in the
Part B states as well.
Article 194(3) deals with the
privileges and immunities available to the petitioner in a
matter like this and they are according to that clause “such
as may time to time be defined by the legislature by law”
and until so defined, those of a member of the House of
Commons of the Parliament of the United Kingdom at the
commencement of the constitution.
(4) As stated before, there is no statutory provision
granting the privilege or immunity invoked by the
petitioner and it is clear from May’s Parliamentary Practice
48
Page 48
15th Edn. 1950, p. 78 that “the privilege from freedom from
arrest is not claimed in respect of criminal offences or
statutory detention” and that the said freedom is limited to
civil clauses, and has not been allowed to interfere with the
administration of criminal justice or emergency legislation.
Xxxx xxxx xxxx
(8) ...... So long as the detention is legal – and in this case
there is no dispute about its legality – the danger of the
petitioner losing his seat or the certainty of losing his daily
allowance cannot possibly form the foundation for relief
against the normal or possible consequences of such
detention.”
47) In Dasaratha Deb case (1952), the Committee of
Privileges-Parliament Secretariat Publication, July 1952, inter
alia, held that the arrest of a Member of Parliament in the
course of administration of criminal justice did not constitute
a breach of privilege of the House.
48) On 24.12.1969, a question of privilege was raised in the
Lok Sabha regarding arrests of some members while they
were stated to be on their way to attend the House.
The
Chair ruled that since the members were arrested under the
provisions of the Indian Penal Code and had pleaded guilty,
no question of privilege was involved.
49) In order to constitute a breach of privilege, however, a
libel upon a Member of Parliament must concern his
49
Page 49
character or conduct in his capacity as a member of the
House and must be “based on matters arising in the actual
transaction of the business of the House.” Reflections upon
members otherwise than in their capacity as members do
not, therefore, involve any breach of privilege or contempt of
the House. Similarly, speeches or writings containing vague
charges against members of criticizing their parliamentary
conduct in a strong language, particularly, in the heat of a
public controversy, without, however, imputing any mala
fides were not treated by the House as a contempt or breach
of privilege.
50) Similarly, the privilege against assault or molestation is
available to a member only when he is obstructed or in any
way molested while discharging his duties as a Member of
the Parliament.
In cases when members were assaulted
while they were not performing any parliamentary duty it
was held that no breach of privilege or contempt of the
House had been committed.
50
Page 50
51) Successive Speakers have, however, held that an
assault on or misbehaviour with a member unconnected with
his parliamentary work or mere discourtesy by the police
officers are not matters of privilege and such complaints
should be referred by members to the Ministers directly.
52) 45th Report of the Committee of Privileges of the Rajya
Sabha dated 30th November, 2000 stated as under:
“6. The issue for examination before the Committee is
whether CRPF personnel posted at Raj Bhawan in Chennai
committed a breach of privilege available to Members of
Parliament by preventing Shri Muthu Mani from meeting
the Governor in connection with presentation of a
memorandum.
7.
The Committee notes that privileges are available to
Member of Parliament so that they can perform their
parliamentary duties without let or hindrance. Shri Muthu
Mani had gone to the residence of Governor for
presentation of a memorandum in connection with party
activities. Before Shri Muthu Mani reached there, two
delegations of his party had been allowed to meet the
Governor.
It appears that due to security related
administrative reasons the entry of another delegation of
which Shri Muthu Mani was a Member, was denied by the
Police officers. Since Shri Muthu Mani was present in
connection with the programme of his political party,
apparently along with other party workers, it cannot be
said that he was in any way performing a parliamentary
duty. As such preventing his entry by lawful means cannot
be deemed to constitute a breach of his parliamentary
privilege.”
53) Now, with regard to the contention of Mr. Venugopal,
viz., about the privileges available to the Assembly and its
51
Page 51
Members, in case of arrest of employees of the Legislature
Secretariat within the precincts of the House, the Speaker of
the Kerala Legislative Assembly, disallowing the question of
privilege, ruled that the prohibition against making arrest,
without obtaining the permission of the Speaker, from the
precincts of the House is applicable only to the members of
the Assembly. He observed that it is not possible, nor is it
desirable to extend this privilege to persons other than the
members, since it would have the effect
unnecessary
restrictions and impediments
of putting
in
the due
process of law.
54) The officers working under the office of the Speaker are
also public servants within the meaning of Section 2(g) of
the Lokayukt Act and within the meaning of Section 2 (c) of
the Prevention of Corruption Act, 1988 and, therefore, the
Lokayukt and his officers are entitled and duty bound to
make inquiry and investigation into the allegations made in
any complaint filed before them.
52
Page 52
55) The law applies equally and there is no privilege which
prohibits action of registration of a case by an authority that
has been empowered by the legislature to investigate the
cases relating to corruption and bring the offenders to book.
Simply because the officers happen to belong to the office of
the Hon’ble Speaker of the Legislative Assembly, the
provisions of the Lokayukt Act do not cease to apply to
them.
The law does not make any differentiation and
applies to all with equal vigour.
As such, the initiation of
action does not and cannot amount to a breach of privilege
of the Legislative Assembly, which has itself conferred
powers in the form of a statute to eradicate the menace of
corruption. It is, thus, clear that, no privilege is available to
the Legislative Assembly to give immunity to them against
the operation of laws.
56) In the present matter, the petitioners have not made
any inquiry even against the members of the Legislative
Assembly or the Speaker or about their conduct and,
therefore, the complaints made against the petitioners by
some of the members of the Legislative Assembly were
53
Page 53
completely uncalled for, illegal and unconstitutional.
The
Speaker has no jurisdiction to entertain any such complaint,
which is not even maintainable.
57) Thus, it is amply clear that the Assembly does not enjoy
any privilege of a nature that may have the effect of
restraining any inquiry or investigation against the Secretary
or the Deputy Secretary of the Legislative Assembly.
58) Thus, from the above, it is clear that neither did the
House of Commons enjoy any privilege, at the time of the
commencement of the Constitution, of a nature that may
have the effect of restraining any inquiry or investigation
against the Secretary or the Deputy Secretary of the
Legislative Assembly or for that matter against the member
of the Legislative Assembly or a minister in the executive
government nor does the Parliament or the Legislative
Assembly of the State or its members.
The laws apply
equally and there is no privilege which prohibits action of
registration of a case by an authority which has been
empowered by the legislature to investigate the cases.
54
Page 54
Simply because the officers belong to the office of the
Hon’ble Speaker of the Legislative Assembly, the provisions
of the Act do not cease to apply to them. The law does not
make any differentiation and applies to all with equal vigour.
As such, the initiation of action does not and cannot amount
to a breach of privilege of the Legislative Assembly, which
has itself conferred powers in the form of a Statute to
eradicate the menace of corruption.
59) The petitioners cannot, while acting under the said
statute, be said to have lowered the dignity of the very
Assembly
petitioners.
which
has
conferred
the
power
upon
the
The authority to act has been conferred upon
the petitioners under the Act by the Legislative Assembly
itself and, therefore, the action taken by the petitioners
under the said Act cannot constitute a breach of privilege of
that Legislative Assembly.
60) By carrying out investigation on a complaint received,
the petitioners merely performed their statutory duty and
did not in any way affect the privileges which were being
55
Page 55
enjoyed by the Assembly and its members. The action of the
petitioners did not interfere in the working of the House and
as such there are no grounds for issuing a notice for the
breach of Privilege of the Legislative Assembly.
61) Also, in terms of the provisions of Section 11(2) of the
Lokayukt Act, any proceeding before the Lokayukt shall be
deemed to be a judicial proceeding within the meaning of
Sections 193 and 228 of the Indian Penal Code and as per
Section 11(3), the Lokayukt is deemed to be a court within
the meaning of Contempt of Courts Act, 1971.
The
petitioners have merely made inquiry within the scope of the
provisions of the Act and have not done anything against the
Speaker personally. The officers working under the office of
the Speaker are also public servants within the meaning of
Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt
and his officers were entitled and duty bound to carry out
investigation and inquiry into the allegations made in the
complaint filed before them and merely because the
petitioners, after scrutinizing the relevant records, found the
allegations
prima
facie
proved,
justifying
detailed
56
Page 56
investigation by the Special Police Establishment under the
Prevention of Corruption Act, and the performance of duty
by the petitioners in no way affects any of the privileges
even remotely enjoyed by the Assembly or its Members.
62) In the present matter, the petitioners have not made
any inquiry against any member of the Legislative Assembly
or the Speaker or about their conduct and, therefore, the
complaints made against the petitioners by some of the
members of Legislative Assembly were completely uncalled
for, illegal and unconstitutional.
63) Further, the allegations made in the complaint show
that while dealing with the first complaint (E.R. 127/05), the
Lokayukt found that there was no material to proceed
further and closed that matter since the allegations alleged
were not established.
While inquiring into the second
complaint since the Lokayukt found that the allegations
made in the complaint were prima facie proved, SPE was
directed to proceed further in accordance with law.
57
Page 57
64) On behalf of the petitioners, it is pointed out that the
facts and circumstances in the present matter show that
complaints have been filed by the Members not in their
interest but for the benefit of the persons involved who all
are public servants. It is also pointed out that the action of
breach
of
privilege
has
been
instituted
against
the
petitioners since the officers, against whom the investigation
has been launched, belong to the Vidhan Sabha Secretariat.
65) We are of the view that the action being investigated
by the petitioners has nothing to do with the proceedings of
the House and as such the said action cannot constitute any
breach of privilege of the House or its members.
66) It is made clear that privileges are available only insofar
as they are necessary in order that House may freely
perform
its
functions.
For
the
application
of
laws,
particularly, the provisions of the Lokayukt Act, and the
Prevention of Corruption Act, 1988, the jurisdiction of the
Lokayukt
or
the
Madhya
Pradesh
Special
Police
Establishment is for all public servants (except the Speaker
58
Page 58
and the Deputy Speaker of the Madhya Pradesh Vidhan
Sabha for the purposes of the Lokayukt Act) and no privilege
is available to the officials and, in any case, they cannot
claim any privilege more than an ordinary citizen to whom
the provisions of the said Acts apply.
Privileges do not
extend to the activities undertaken outside the House on
which the legislative provisions would apply without any
differentiation.
67) In the present case, the action taken by the petitioners
is within the powers conferred under the above statutes and,
therefore, the action taken by the petitioners is legal.
Further, initiation of action for which the petitioners are
legally
empowered,
cannot
constitute
breach
of
any
privilege.
68) Under the provisions of Section 39(1)(iii) of the Code of
Criminal Procedure, 1973, every person who is aware of the
commission
of
an
offence
under
the
Prevention
of
Corruption Act is duty bound to give an information available
with him to the police. In other words, every citizen who has
59
Page 59
knowledge of the commission of a cognizable offence has a
duty to lay information before the police and to cooperate
with the investigating officer who is enjoined to collect the
evidence.
69) In the light of the above discussion and conclusion, the
impugned letters/notices are quashed and the writ petition is
allowed as prayed for. No order as to costs.
........................................CJI.
(P. SATHASIVAM)
...........................................J.
(RANJAN GOGOI)
...........................................J.
(SHIVA KIRTI SINGH)
NEW DELHI;
FEBRUARY 25, 2014.
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