The law on horse-trading
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? Kannan Kasturi looks back at the trail so far.
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.
The Supreme Court ruled that MPs taking bribes could invoke the immunity from court proceedings conferred by Article 105 of the Constitution if they had actually spoken or voted in the House in accordance with the bribe taken by them.
• Govt. proposes, Parl. disposes
The accused persons took up two lines of defense. One, that Article 105 of the Constitution provided a Member of Parliament immunity from trial by the court in respect of a vote given by him or her; two, that a Member of Parliament was not a ‘public servant’ as per the definition of that term in the PCA, and could therefore not be tried under this Act.
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.
The NCRWC
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.
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Cite this article
Kannan Kasturi (2008) ‘The law on horse-trading’, India Together, 20 July 2008. https://indiatogether.org/horses-government/
7 reader responses
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Poornima · 21 July 2008
A real eye-opener on the unpleasant issue of horse-trading. Thanks. I wish Advani & NDA could have put Nation before Party and supported the deal.
Gaurav Singhal · 21 July 2008
It will be very difficult to draw the line between whether a vote or statement by a member of parliament was under the influence of money/any other valuable consideration. Suppose even if it is known that a political party (like JMM in current case) has voted for the government in exchange of ministerial berths, how would it be proved in the court with the Prime Minister having an absolute prejudice over whom to make a minister? And by the same logic it can be proved that many of the UPA non-congress cabinet ministers would not have voted for the govt. if they were not given the cabinet berth. Not would it be considered wrong, i.e. that they have voted in influence of exchange of valuable consideration? The concept for Article 105 emanated from British Parliament where parliamentarians were given absolute immunity to criticize even the king if they felt so for the public good. Although today that immunity has taken a bad form, it will be difficult to draw a clear line between the misuse and proper use of that immunity. Although a change in law can be made, I am not sure whether it will be effective.
Cupid · 21 July 2008
The author blindly endorses the NCRWC's recommendation and blames parliament for not acting on it without recognizing the fundamental problems inherent in the proposed solution. Firstly I will outline a brief critique of the commissions understanding (or lack thereof) of political corruption. The commission defined corruption as '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.' This would be an apt definition for bureaucratic or judicial corruption but could the same be applied without alteration to members of the legislature? MP/MLAs are not free agents but are bound to go by the 'wishes of the people' which in effect amounts to the cumulative influence of various interest groups upon the candidate. Accordingly, they have an obligation to solicit support from various quarters as part of their responsibility to their constituents. This support could come in various forms such as (a) Direct contribution such as active contribution as a campaign volunteer (b) Indirect contribution in kind as in providing vehicles for party rallies and for the campaign, providing material for banners/posters or (c) Contributions in cash which could be used for a variety of purposes. Candidates seek and do receive support in all three forms. In economic terms, time and effort are as valuable as money and there is absolutely no difference between providing assistance in one way as against another. Look at it this way. Suppose a particular MP fighting for labour causes votes introduces a bill in parliament that favours increased minimum wage and better benefits for labourers in exchange for the active support of union members not only in voting but also in campaigning for his/her re-election. Now suppose that there is another MP fighting for management interests who instead champions legislation that would reduce the minimum wage, decrease corporate tax and advance the interest of corporate management in exchange for their support. Managers being much smaller in number than labour, wealthier in individual terms and far busier, rather than contributing to the campaign in person, they find it sensible to instead provide the candidate with money that he/she can use to hire the people/infrastructure needed to run his/her campaign. In practice, what is the difference between the two? None at all - both candidates are fighting for perfectly legitimate goals and both receive support albeit in different forms. And neither cause is necessarily morally superior to the other: better wages and benefits may be beneficial to existing workers but comes at increased cost to operating businesses which in turn may translate into lower new investment and reduced opportunities for potential new workers; a pro-corporate measure may well mean all the opposite things. In sum, neither outcome could be said to be morally or ethically any more desirable than the other. Yet, according to this definition of corruption that the commission proposes, the first candidate would be termed honest and his approach to re-election completely acceptable but the second who has received 'money or other valuable consideration' would be termed corrupt and prosecuted. Could this be termed honest or fair by any measure? I think not. Money, inter alia, is the lubricant that keeps the wheels of democracy turning. The Court's decision to apply the Prevention of Corruption Act to MPs as well this blanket definition of corruption that the NCRWC would have parliament adopt are so flawed that they ignore this reality completely. It is naïve to think that money can be kept out of the system as Justice JP Stevens noted, 'Money, like water, will always find an outlet'. What is necessary is not a bar on receiving money per se but ethical regulations on how to receive it and what needs to be disclosed about it. Secondly, the commission would define the exception to Article 105 as follows: "Nothing in clauses (1), (2) or (3) shall bar the prosecution of a Member of Parliament, in any court of law, for an offence involving receiving or accepting, whether directly or indirectly, and whether for his own benefit or for the benefit of any other person in whom he is interested, any kind of monetary or other valuable consideration for voting in a particular manner or for not voting, as the case may be, in a House of Parliament." If an MP votes/speaks against a bill unexpectedly defying the government's desire, under the current system, he may incur the party's disfavoUr and either lose his ticket for re-election or worse, be expelled from its primary membership. However, if the amendment is incorporated, he/she can be threatened with even greater retaliation by the government an open-ended investigation into his and his family's assets potentially leading to charges against him/her in court (remember that due process is the punishment in India). Is it a good idea to add this additional penalty to the political parties' already overflowing armory of methods to discipline their members? Are MPs to be reduced to little more than robots who will no longer be allowed to defy the whip even at the expense of sacrificing their own hard-won seats? The basic grievance of the commission is that the Supreme Court, in P V Narasimha Rao v. State (1998) chose to follow the dissent in US v. Brewster (1972) rather than the majority opinion by Chief Justice Burger. Even in the latter case, the Chief Justice did not overrule US v. Johnson (1966) where the US Supreme Court held that any speech delivered on the floor of the House could not be used as evidence against the legislator in any trial, a very basic form of protection provided in virtually every democracy including ours (under Art. 105). The wording of this exception that the commission proposes would take even that away. Instead of parliamentary immunity, they would then be conferred the Miranda rights that criminal suspects get ("You have the right to remain silent. Anything you say may be used against you"), a good way to silence parliamentary attack and criticism. In summary, it is a good thing that the commission's half-baked ideas have remained on paper. In any case, under the current political conditions where even the faintest whiff of money is sufficient to scandalize any politician and his/her party, it is quite unlikely that the routine wheeling and dealing will happen to come under the public scanner all that frequently. Amending Art. 105 is thus unlikely to serve any real purpose. Instead of wasting one's energies on this, it would be far more worthwhile to push for reforming the system of political financing that we currently have.
Kannan Kasturi · 21 July 2008
It is not my intention to endorse a specific solution, but merely to point out the legal hurdle that exists in prosecuting MPs on corruption charges even if sufficient grounds exist for the same. It is for the Government and the law makers to come up with a solution.The point is that 15 years after a major scandal affecting the image of MPs, it seems there has been no progress. Some clarifications are also in order. The National Commission to Review the Working of the Constitution while recomending that Article 105 be amended (to clarify that immunity did not extend to corrupt acts) did not provide any specific wording for the same. The commission also wanted courts to take cognizance of an offence only with the prior sanction of the house speaker/chairman.
unni krishnan atiyodi · 24 July 2008
A democracy, committing suicide will have criminals to represent them. Many MPs have criminal backgrounds and some of them are already in jail. They got elected by muscle power and coercion. People fear to exercise their franchise freely. It seems good people cannot survive in our society. Nepotism, bribery, redtapism etc. have become the order of the day. MPs can be purchased with money. Politics should not be the occupation of anybody. A diary and a villainous appearance have become the mark of a politician. Without any capital, they get divident! Illiterate ruffians build palatial houses and travel in airconditioned costly cars. People are cowed down. First these people must have a job other than politics. Let them make a living by working. No MP or MLA should be given the salary other than allowances. Life long pension for them, declared by Indira Gandhi has proved to be dangerous. We must make them disciplined. Otherwise we are leading to anarchy. U.K.Atiyodi
unni krishnan atiyodi · 3 August 2008
Now that the Leftists are after Mayavathi, the chances of Indian politics dwindling further is certain. Scruples evade personal gains. Prakash Karat and his cohorts have done a great blunder by joining hands with BJP and Mayavathi. The Leftists could have stayed aloof from all these people so that they can maintain their integrity to scruples. Now they also have proved their preference to ascend to power by any means. Definitely there are people in India who think logically before voting. Don't try to take them for a ride.
Rathi Menon · 2 October 2008
I have not come across any organised protest against the meagre compensation given to endosulfan victims in a state where even suicide cases are given more compensation and every political party makes mountain out of moles for any issue. Keralites should feel ashamed of it.