Most of the time, we never hear about how MPs vote in Parliament. Indeed, these days the various bills in the Lok Sabha and the legislatures are passed only by voice vote, and there is no need for counting. The ruling party votes 'yes' as one bloc, the opposition votes 'no' as another bloc, and the bill is passed into law. But every once in a while, comes a confidence motion, one or those rare instances when it matters how each MP votes. And we are now upon such a moment, a time for every Member of Parliament to stand up and be counted, literally.
The stakes are high for the ruling Congress-led UPA coalition - a few more months holding the reins of power before being forced to seek another mandate from the electorate may be critical for its future. With the date of the confidence motion approaching, the air is thick with rumours of how the MPs, especially those from smaller parties, will vote. And alongside those, one finds allegations of horse trading - a term that in Indian politics has come to signify the use of personal inducements to get a legislator to vote in a particular way.
There is wide-spread agreement that horse trading in the political arena is immoral and undesirable, and should be illegal. But what is the actual position of law on this? A look at the legal treatment of an incident from the past throws up some surprises.
Rewind to an earlier Congress government
In July 1993, the coalition government of P V Narasimha Rao was faced with a trust vote. The government survived, with support from members of the Jharkhand Mukti Morcha (JMM) and the breakaway Janata Dal (Ajit). The latter's leader Ajit Singh himself abstained from the vote. At that time it was alleged that horse trading had taken place to influence the vote.
CBI investigations into that scandal started in 1996 after a change of government. The CBI soon put up a case that Narasimha Rao had entered into a criminal conspiracy with others - including MPs and MLAs - to bribe several Members of Parliament to induce them to vote against the motion of no confidence. Charges under the Prevention of Corrution Act, 1998 (PCA) were filed against the alleged bribe givers - Rao himself, but also Karnataka Congressman Veerappa Moily, and several other MPs and MLAs. Charges were also filed against the alleged bribe takers - the four JMM MPs including Shibu Soren, and the eight Janata Dal (Ajit) MPs including Ajit Singh. In 1997, one JMM MP turned approver and was pardoned by the Special Judge hearing the case; the case against the rest proceeded.
Article 105 of the Constitution lays down the powers, privileges and immunities of the two houses of Parliament and its members. The defense claim of immunity in the case was based on Clause 2 of the Article, which declares that "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 ..." This, said Rao and his defenders, meant that their actions in the confidence motion were not subject to scrutiny by any court.
The Special Judge, Delhi and later the Delhi High Court rejected the claims of immunity by the defendants. They ruled that the real question before the court was not in respect of the vote given, but rather the illegal act of demanding and accepting a bribe for voting in a particular manner. That, they decided, was certainly within the purview of the PCA. And just as importantly, they also held that Members of Parliament were 'public servants' within the meaning of the PCA and could be prosecuted for offences specified in the Act.
The case then went up to the Supreme Court, and was heard there by a five-judge Constitution Bench (P V Narasimha Rao vs State, 1998). The Bench was unanimous that Members of Parliament were 'public servants' within the meaning of the PCA. However, on the question of immunity from trial offered by Article 105, their opinion was sharply divided. Their opinion, decided by a 3-2 majority, was summarised in the following words in a consultation paper that was circulated some years later by the National Commission to Review the Working of the Constitution:
"While bribe-givers (who are Members of Parliament) cannot invoke the immunity conferred by clause 2 of Article 105, the bribe-takers (Members of Parliament) can invoke that immunity if they have actually spoken or voted in the House pursuant to the bribe taken by them; if however a Member of Parliament takes a bribe for speaking or voting in the House in a particular manner but does not so speak or vote, the immunity cannot be invoked by him."
In light of this Supreme Court verdict, the Court of the Special Judge dropped the bribery related charges against the JMM MPs and those Janata Dal (Ajit) MPs who had voted with the P V Narasimha Rao government. As for the others, the case against them was on. Ajit Singh could not have immunity because of the way he voted, and Narasimha Rao and the other vote-buyers were to be prosecuted. In 2000, the Court of the Special Judge sentenced Rao to 3 years imprisonment, but acquitted Ajit Singh, Veerappa Moily and others. On appeal, the Delhi High Court overturned the verdict of the Special Judge against Narasimha Rao and acquitted him in 2002 after finding the confessional statement of the JMM MP who had turned approver 'unreliable' and not corroborated by any other independent source.
A National Commission to Review the Working of the Constitution was set up by the NDA Government in 2000, and this commission considered, among other issues, the question of immunity for legislators offered by clause 2 of Article 105. A consultation paper prepared by the commission for generating public discussion on this question argued as follows:
"Creating an immunity in favour of Members of Parliament for their corrupt acts on the ground that such corrupt acts are 'in respect of' their voting and speaking in Parliament appears to run counter not only to the principle of equality underlying our Constitution, but against all notions of justice, fair play and above all good conduct which is expected from the Members of Parliament more than from the ordinary citizens of this country ... We are also of the opinion that recognition of such an immunity is neither good for the image of the Parliament and of its Members, nor is it in the interest of our society and our nation. Indeed it appears surprising that such a contention was urged by certain Members of Parliament before the courts including the Supreme Court."
The commission recommended in 2002 that Article 105 be amended to clarify that "immunity enjoyed by Members of Parliament under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise. Corrupt acts would include accepting money or any other valuable consideration to speak and/or vote in a particular manner. For such acts, they would be liable for action under the ordinary law of the land."
In March 2006, a private members' bill was introduced in the Rajya Sabha to amend article 105 of the constitution. Nothing came of this, as was to be expected. It is common knowledge that only bills sponsored by the Government have a serious chance of becoming law.
That brings us to the present. The NCRWC's recommendations to amend Article 105 of the Constitution continue to gather dust. The UPA government has not shown particular urgency to remove this repugnant immunity enjoyed by MPs. Meanwhile, the scenario leading up to the confidence vote sought by Dr Manmohan Singh's government bears an uncanny resemblance to the situation 15 years back, when the trust vote was sought - and bought, in the opinion of many - by P V Narasimha Rao's Government.