Mr. P.P.. Rao addressed us on behalf of P.V. Narasimha Rao, Mr. D.D. Thakur on behalf of Satish Sharma, Mr. Kapil Sibal on behalf of Bhajan Lal and Dr.Surat Singh on behalf of some of the J.D., A.S. M.Ps. All of them relied upon sub article (2) OF Article 105. Only Mr. P.P. Rao, learned counsel for P.V. Narasimha Rao, relied, in addition, upon sub article(3) thereof.
By reason of Sub-article (1) of Article 105, members of Parliament enjoy freedom of speech subject only to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. That express provision is made for freedom of speech in Parliament in sub-article (1) of article 105 suggests that this freedom is independent of the freedom of speech conferred by Article 19 and unrestricted by the exceptions contained therein. This is recognition of the fact that members need to be free of all constraints in the matter of what they say in Parliament if they are effectively to represent their constituencies in its deliberations. Sub-article (2) of Article 105 puts negatively what sub-article (1) states affirmatively.
Both sub-articles must be read together to deter mine their content. By reason of the first part of sub-article (2) no member is answerable in a court of law or any similar tribunal for what he has said in Parliament. This again is recognition of the fact that a member needs the freedom to say what he thinks is right in Parliament undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid of a machine, is treated as an extension of speech or a substitute for speech and is given the protection that the spoken word has. Two comments need to be made in regard to the plain language of the first part of sub-article (2). First, what has protection is what has been said and a vote that has been cast, not something that might have been said but was not, or a vote that might have been cast but was not. Secondly, the protection is broad, being "in respect of". It is so given to secure the freedom of speech in Parliament that sub-article (1) provides for. It is necessary, given the role members of Parliament must perform . The protection is absolute against court proceedings that have a nexus with what has been said, or a vote that has been cast in Parliament. The second part of sub-article (2) provides that no person shall be liable to any proceedings in any court in respect of the publication of any report, papers, votes or proceedings if the publication is by or under the authority of either House of Parliament. A person who publishes a report or papers or votes or proceedings by or under the authority of Parliament is thereby given protection in the same broad terms against liability to proceedings in any court connected with such publication. The constitution having dealt with the all - important privilege of members of Parliament to speak and vote therein as they deem fir, freed of the fear of attracting legal proceedings concerning what they say or how they vote, provides for other powers, privileges and immunities is sub-article (3). Till defined by Parliament by enactment, they are such as were enjoyed before the Constitution came into force; that is to say, they are such as were enjoyed by the House of Commons just before 26th January, 1950. For it to be established that any power, privilege or immunity exists under sub-article (3), it must be shown that power, privilege or immunity had been recognised as inhering in the House of Commons at the commencement of the Constitution. So important was the freedom to speak and vote in Parliament thought to be that it was expressly provided for, not left to be gathered, as other powers, privileges and immunities were, from the House of Commons. In so far as the immunity that attaches to what is spoken in Parliament and to a vote given therein is concerned, provision is made in sub-article (2); it is only in other respects that sub-article (3) applies. For the sake of completeness, though we are not here concerned with it, we must add that sub-article (4) gives the protection of the Sub-articles that preceded it to all who have the right to address the House, for example, the Attorney General.
The provisions of Article 105 and of Article 194, which is in the same terms but deals with the privileges of Legislative Assemblies, have been examined by this Court in the past. In the case of Pandit M.S.M. Sharma v.Shri Sri Krishna Sinha And Others,  Supp.1 S.C.R. 806, a portion of the speech made by a member of a Legislative Assembly had been expunged by the orders of the Speaker. Nonetheless, the speech was published in its entirety in a newspaper of which the petitioner was the editor. He was called upon to show cause why action should not be taken against him for breach of privilege of the Legislative Assembly and he challenged the notice by a petition under Article 32. S.R. Das, C.J., speaking for the majority on the Constitution Bench which heard the writ petition, observed that Parliamentary privilege in England was defined in May's Parliamentary practice as "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, and which exceed those possessed by other bodies individuals". The privileges of the House of Commons, as distinct from those of the House of Lords, were 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 the House of Commons included the freedom of speech, which had been claimed in 1554. This comprised the right of the House to provide for the due composition of its own body, the right to regulate its own proceedings, the right to exclude stranger, the right to prohibit publication of its debates and the right to enforce observation of its privileges by fine, imprisonment and expulsion. For deliberative bodies like the House of Lords and Commons, this Court said, "freedom of speech is of the utmost importance. A full and free debate is of the essence of Parliamentary democracy." The argument that the whole of article 194 was subject to Article 19(1)(a) overlooked the provisions of article 194(2). The right conferred on a citizen under Article 19(1)(a) could be restricted by a law which fell within sub- article 2 of that Article and he could be made liable in a court of law for breach of such law, but Article 194(2) categorically laid down that no member of the legislature was to be made liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person would be liable in respect of the publication by or under the authority of the House of such a Legislature of any report, paper or proceedings. The provisions of Article 194(2), therefore, indicated that the freedom of speech referred to in sub-article (1) thereof was different from the freedom of speech and expression guaranteed under Article 19(1)(a) and could not be cut down in any way by any law contemplated by article 19(2). A law made by Parliament in pursuance of the earlier part of Article 105(3) or by a State Legislature in pursuance of the earlier part of Article 194(3) was not law made in exercise of constituent power but law made in exercise of ordinary legislative power under Article 246 read with the relevant entries. Consequently, if such a law took away or abridged any of the fundamental rights, it would contravene the peremptory provisions of Article 13(2) and would be void to the extent of such contravention. It might well be that that was reason why Parliament and the State Legislatures had not made laws defining their powers, privileges or immunities conferred by the latter part of Articles 105 and 194 were repugnant to the fundamental rights, they would be void to the extent of such repugnancy. It could not be overlooked that the provisions of Articles 105(3) and 194(3) were constitutional law and not ordinary law made by Parliament or the State Legislatures and therefore, they were as supreme as the provisions of part II of the Constitution. Further, quite conceivably, the Constitution makers, not knowing what powers, privileges and immunities Parliament or the State Legislatures might claim, though fir not to take any risk and made such laws subject to the provisions of Article 13; but that, knowing and being satisfied with the reasonableness of the powers, privileges and immunities of the House of Commons at the commencement of the Constitution, they did not, in their wisdom, think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Article 19(1)(a).
The case of Dr. Satish Chandra Ghosh V.Hari Sadhan Mukherjee,  3 S.C.R. 486, dealt with an appellant who was a member of a Legislative Assembly. He had given notice of his intention to put certain questions in the Assembly. The questions being disallowed by the Speaker, he had published them in a journal in his constituency. The first respondent, whose conduct was the subject-matter of the questions, filed a complaint under the Indian Penal Code against the appellant and the printer and publisher of the journal. The appellant pleaded privilege and immunity under Article 194 of the Constitution as a bar to criminal prosecution. The claim of absolute privilege was disallowed by this Court. It was said, with reference to the law in England in respect of the privileges and immunities of the House of Commons, that there was no absolute privilege attaching to the publication of extracts from proceedings in the House. So far as a member of the House of Commons was concerned, he had an absolute privilege in respect of what he had spoken within the four walls of the House, but there was only a qualified privilege in his favour even in respect of what he had himself said in the House if he caused the same to be published in the public press. The legal position, which was undisputed, was that unless the appellant could make out an absolute privilege in his favour in respect of the publication which was the subject-matter of the charge, the prosecution against him could not be quashed. He having no such absolute privilege, it was held that "he must take his trial and enter upon his defence, such as he may have."
Special Reference No.1 of 1964, 1 S.C.R. 412 known more commonly as Keshav Singh's case or the Privileges case, deals extensively with the scope of the privileges of legislative bodies. The Presidential Reference was made in the following circumstances: The Legislative Assembly of the State of Uttar Pradesh committed one Keshav Singh, not one of its members, to prison for contempt. The warrant it issued was a general warrant, in that it did not set out the facts which had been found to be contumacious. Keshav Singh moved a petition under Article 226 challenging his committal and he prayed for bail. Two learned judges of the Lucknow Bench of the High Court ordered that Keshav Singh be released on bail pending the decision on the writ petition. The Legislative Assembly passed a resolution requiring the production in custody before it of Keshav Singh, the advocate who had appeared for him and the two judges who has granted him bail. The judges and the advocate filed writ petitions before the High Court at Allahabad. A Full Bench of the High Court admitted their petitions and ordered the stay of the execution of the Assembly's resolution. The Legislative Assembly modified its earlier resolution so that the two judges were now asked to appear before the House and offer an explanation. The President thereupon made the Special Reference. Briefly put, the questions he asked were : whether the Lucknow Bench could have entertained Keshav Singh's writ petition and released him on bail; whether the judges who entertained the petition and granted bail and Keshav Singh and his advocate had committed contempt of the Assembly; whether the Assembly was competent to require the production of the judges and the advocate before it in custody or to call for their explanation; whether the Full Bench of the High Court have entertained the writ petitions of the two judges and the advocate and could have stayed the implementation of the resolution of the Assembly; and whether a judge who entered or dealt with a petition challenging any order of a Legislature imposing penalty or issuing process against the petitioner for its contempt or for infringement of its privileges and immunities committed contempt of the Legislature and whether the Legislature was competent to take proceedings against the judge in the exercise of its powers, privileges and immunities. The adjectival clause "regulating the procedure of the Legislature" in Article 194(1) governed, it was held, both the proceeding clauses relating to "the provisions of the Constitution" and "the rules and standing orders." Therefore, Article 194(1) conferred on legislators specifically the right of freedom of speech subject to the limitation prescribed by its first part. By making this sub- article subject only to the specified provisions of the Constitution, the Constitution-makers wanted to make it clear that they thought it necessary to confer on the legislators freedom of speech separately and, in a sense, independently of Article 19(1)(a). It was legitimate to conclude that Article 19(1)(a) was not one of the provisions of the Constitution which controlled the first part of Article 194(1). Having conferred freedom of speech on the legislators, Article 194(2) emphasized the fact that the freedom was intended to be absolute and unfettered. Similar freedom was guaranteed to the legislators in respect of the votes they might give in the legislature or any committee thereof. "In other words". this Court said, "even if a legislator exercises his right of freedom of speech in violation, say, of Article , he would not be liable for any action in any court. Similarly, if the legislator by his speech or vote is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court. If the impugned speech amounts o libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any court by this clause .... .... .... It is plain that the Constitution-makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause (2). Thus, clause (1) confers freedom of speech on the legislators within the legislative chambers and clause (2) makes it plain that the freedom is literally absolute and unfettered." Referring to Article 194(3), this Court said that it was well-known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time and some faded out by desuetude. Accordingly, in every case where a power was claimed, it was necessary to enquire whether it was an existing power at the relevant time. It had also to appear that the power was not only claimed by the House of Commons "but was recognised by the English courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons." In India, this Court said, the dominant characteristic of the British Constitution could not be claimed. The supremacy of the Constitution was protected by an independent judicial body which was the interpreter of the scheme of distribution of powers. It was difficult for this Court to accept the argument that the result of the provisions contained in the latter part of Article 194(3) was intended to be to confer on the State Legislatures in India the status of a superior Court of Record. It was essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons was based on historical facts. It was a fact of English history that Parliament had been discharging judicial functions and the House of Lords still continued to be the highest court of law in the country. The Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional background did not support the claim that they could be regarded as Courts of Record in any sense. The very basis on which English courts agreed to treat a general warrant issued by the House of Commons the footing that it was a warrant issued by a superior Court of Record was absent in the case of a general warrant issued by a State Legislature in India.
In the case of T.K.Jain v. N.S. Reddy 1 S.C.R. 612, it was contended that the immunity granted by Article 105(2) was with reference to the business of Parliament and not in regard to something which was something utterly irrelevant. This Court said:
"The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of anything said ....... in Parliament. The word "anything is of the widest import and is equivalent to 'everything'. The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none."
The last of the cases to which reference need be made is State of Karnataka v. Union of India & Another,  2 S.C.R. 1. It was there held that the Constitution vested only legislative power in Parliament and in the State Legislatures. A House of Parliament or State Legislature could not try anyone or any case directly, as a Court of Justice could. It could proceed quasi-judicially in cases of contempts of its authority and take up motions concerning its privileges and immunities because, in doing so, it sought removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arose, it had to be decided by the courts in appropriate proceedings. Beg, J. added, "For example, the jurisdiction to try a criminal offence, such as murder, committed even within a house vests in ordinary criminal courts and not in a House of Parliament or in a State Legislature".
In Tolaram Relummal and anr. vs. The State of Bombay, 1995 (1) S.C.R. 158, this Court construed the words "in respect of" occurring in Section 18(1) of the Bombay Rent Restriction Act, 1947, the relevant portion of which read thus:
"If any landlord either himself or through any person acting or purporting to act on his behalf........receives any fine, premium or other like sum or deposit or any consideration, other than the standard rent..........in respect of the grant, renewal or continuance of a lease of any premises........such landlord or person shall be punished.......".
The High Court had observed that the expression "in respect of" was very comprehensive but this Court took the view that it had laid undue emphasis thereon. This Court said, "Giving the words "in respect of" their widest meaning, viz, "relating to" or "with reference to", it is plain that this relationship must be predicated of the grant, renewal or continuance of a lease, and unless a lease comes into existence simultaneously or near about the time that the money is received, it cannot be said that the receipt was "in respect of" the grant of a lease.............It is difficult to hold that any relationship of landlord and tenant comes into existence on the execution of an agreement executory in nature or that the expression "premium" can be appositely used in connection with the receipt of money on the occasion of the execution of such an agreement. It may well be that if a lease actually comes into existence then any receipt of money which has a nexus with that lease may fall within the mischief of section 18(1), but it is unnecessary to express any final opinion on the question as in the present case admittedly no lease ever came into existence and the relationship of landlord and tenant was never created between the parties.:"
The learned Attorney General submitted that the words "in respect of" had not always received a board meaning, and he cited the judgment of this Court in State of Madras vs. M/s. Swastik Tobacco Factory, Vedaranyam, 1966 (3) S.C.R. 79. A provision of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, which stated that, "the excise duty, if any, paid by the dealer to the Central Government in respect of the goods sold by him,...." would be deducted from the gross turnover of a dealer for the purposes of determining the net turnover, was under consideration. The Court noted that the words "in respect of" had been considered by the House of Lords in Inland Revenue Commissioners vs. Courts & Co.,  2 All. E.R.722, and it had observed that "the phrase denoted some imprecise kind of nexus between the property and the estate duty".In Asher v. Seaford Court Estates Ltd., L.R.  A.C. 508, the House of Lords had held that the expression "in respect of" in the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, must be read as equivalent to "attribute". The Privy Council in Bicber, Ltd. V. Commissioners of Income-tax, 3 All. E.R.. 294, had observed that these words could mean more than "consisting of" or "namely". This Court said, "It may be accepted that the said expression received a wide interpretation, having regard to the object of the provisions and the setting in which the said words appeared. On the other hand, Indian tax laws use the expression 'in respect of' as synonymous with the expression 'on'." In the provision under consideration the expression "in respect of the goods" was held to mean "on the goods".
This Court drew a distinction in the above case between the use of the expression "in respect of" in taxing statutes in India and its use elsewhere. In the context of its use in the Constitution and having regard to the object which is intended to be secured by Article 105(2), we think that the broad interpretation thereof is the most appropriate. It is thus that this Court has already interpreted the provision.
The Attorney General submitted that a proceeding in court founded on the allegation that a member of Parliament had received a bribe to vote in a particular way was not a proceeding in respect of a vote that he had given and that, therefore, the member did not enjoy immunity from the proceeding by reason of Article 105(2) did not cover criminal proceedings. It had been held by the courts of the United States of America, Canada, Australia and, recently, England, he said, that a legislator could be proceeded against for corruption. The Attorney General relied upon the decisions and reports in this behalf to which we shall refer.The Attorney General submitted that the immunity given by Article 105(2) should be interpreted in the light of the times in which we live and, so interpreting it, should exclude from its coverage corrupt legislators.
In Bradlaugh v. Gossett, 12 Q.B.D.271, the plaintiff Bradlaugh had been elected to the House of Commons. He required the Speaker to call him to the table to take the oath. By reason of what had transpired on a earlier occation, the Speaker declined to do so and the House resolved that the Serjeant-at-Arms should exclude Bradlaugh until "he shall engage not further to disturb the proceedings of the House". Bradlaugh prayed for an injunction against the Serjeant-at-Arms restraining him from carrying out the resolution. The suit was dismissed. Lord Coleridge, C.J. said, "What is said or done within the walls of Parliament cannot be inquired into in a court of law...........The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and inefficiency without it."' He added, "The Houses of Parliament cannot act by themselves in a body : they must act by officers; and the Serjeant-at-arms is the legal and recognised officer of the House of Commons to execute its orders. I entertain no doubt that the House had a right to decide on the subject-matter, have decided it, and have ordered their officer to give effect to their decision. He is protected by their decision. They have ordered him to do what they have a right to order, and he has obeyed them.........If injustice has been done, it is injustice for which the Courts of law afford no remedy." Stephen, J., concurring, said that the House of Commons was not subject to the control of Her Majesty's Courts in its administration of that part of the statute law which had relation to its own internal proceedings, and that the use of such actual force as was necessary to carry into effect such a resolution as the one before the court was justifiable. In support, the learned Judge quoted Blackstone, who had said, "The whole of the law and custom of Parliament has its original from this one maxim, 'that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere." This principle had been re- stated by the judges who decided Stockdale v. Hansard, 9 Ad. & E.I. Lord Denman had said, "Whatever is dome within the walls of either assembly must pass without question in any other place." Littledale, J., had said, "It is said the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned." Patteson, J., had said, "Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere." And Coleridge, J., had said, "That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity." It seemed to follow that the House of Commons had the exclusive power of interpreting the Parliamentary Oaths Act, so far as the regulation of its own proceedings within its own walls was concerned: and that, even if that interpretation was erroneous , the court had no power to interfere with it "directly or indirectly". It was in regard to a possible case as to the effect of an order by the House of Commons to put a member to death or to inflict upon him bodily harm that the learned Judge said, "I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice". Referring to the old case of Sir John Eliot, Denzil Hollis, and Others, the learned Judge said, "This case is the great leading authority, memorable on many grounds, for the proposition that nothing said in parliament by a member as such, can be treated as an offence by the ordinary Courts".
In the case of Church of Scientology of California vs. Johnson Smith, (1972) ALL E.R. 378, the defendant, a member of Parliament, was sued for libel allegedly published in a television programme. He pleaded fair comment and privilege. The plaintiffs countered by alleging malice, to prove which they sought to bring on record as evidence extracts from Hansard. The trial judge declined to permit them to do so. In his ruling he said, "I am quite satisfied that in these proceedings it is not open to either party to go directly, or indirectly, into any question of the motives or intentions, of the defendant or Mr. Hordern or the then Minister of Health or any other member of Parliament in anything they said or did in the House."
The report of the Royal Commission on Standards of Conduct in Public Life, chaired by Lord Salmon, was presented in July 1976. It says, "307. Only Parliament can decide what conduct constitutes a breach of privilege or a contempt of Parliament. In cases that are adjudged to be 'contempts', the House may exercise its penal jurisdiction to punish the offenders. The main penal sanctions available to the House are reprimand and committal to the custody of the Serjeant at Arms or to prisons. These sanctions apply both to Members and strangers. In addition, a Member may be suspended from the House or expelled. The House of Commons possesses no power to impose a fine.
"308. Whilst the theoretical power of the House to commit a person into custody undoubtedly exists, nobody has been committed to prison for contempt of Parliament for a hundred years or so, and it is most unlikely that Parliament would use this power in modern conditions."
The Report states (in para 307), "it is in the light of the foregoing paragraphs that we note the fact that neither the statutory nor the common law applies to the bribery or attempted bribery of a Member of Parliament in respect of his Parliamentary activities". The Report speaks (in para
309) of "the historical circumstances in which the ordinary criminal law has not applied to bribery in respect of proceedings in Parliament". It finds (in para 310) that "the briber of a Member of Parliament would be immune from effective punitive sanctions of the kind that can be inflicted under the criminal law. Public obloquy is unlikely to be an effective sanction against such a person and accordingly we consider that there is a strong case for bringing such malpractices within the criminal law". It reiterates that "the bribery of a Member of Parliament acting in his Parliamentary capacity does not constitute an offence known to the criminal law........". The conclusion of the Report on the point is contained in para 311:
"Membership of Parliament is a great honour and carries with it a special duty to maintain the highest standards of probity, and this duty has almost invariably been strictly observed. Nevertheless in view of our report as a whole, and especially in the light of the points set out in the foregoing paragraph, we recommend that Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament acting in his Parliamentary capacity within the ambit of the criminal law".
In Prebble v. Television New Zealand Ltd., (1994) 3 All E.R. 407, the Privy Council considered Article 9 of the Bill of Rights (1688), which applies by reason of incorporation in New Zealand. It reads thus:
"That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament."
The defendant, a New Zealand television company, aired a programme in which it was alleged that the plaintiff, Prebble, then a Minister in the New Zealand Government, had conspired with certain businessman and public officials to give the businessmen an unfair opportunity to obtain certain state-owned assets which were being privatised on unduly favourable terms in return for donations to his political party, and he had thereafter arranged for incriminating documents and computer files to be destroyed. The plaintiff having brought an action for libel, the defendant company pleaded justification, alleging that the plaintiff and other ministers had made statements in the House of Representatives which had been misleading and that the conspiracy had been implemented by introducing and passing legislation in the House. The plaintiff applied to strike out these particulars on the ground that parliamentary privilege was infringed. The trial judge upheld the claim to immunity, as did the Court of Appeal. The privileges Committee of the House of Representatives having held that the House had no power to waive the privileges protected by Article 9, the plaintiff appealed to the Privy Council also upheld the claim to immunity. Lord Browne-Wilkinson, speaking for the Board, said that if Article 9 was looked at alone, the question was whether it would infringe that Article to suggest that the statements that were made in the House were improper or that the legislation was procured in pursuance of the alleged conspiracy, as constituting impeachment or questioning of the freedom of speech of Parliament. In addition to Article 9 itself, there was a long line of authority which supported a wider principle, of which Article 9 was merely one manifestation, namely, that the courts and Parliament were both astute to recognise their respective constitutional roles. So far as the courts were concerned, they would not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. The basic concept that underlay Article 9, namely , the need to ensure so far as possible that a member of the legislature and witnesses before a committee of the House spoke freely "without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect." The privilege protected by Article 9 was the privilege of Parliament itself. The actions of an individual member of Parliament, even if he had an individual privilege of his own, could not determine whether or not the privilege of Parliament was to apply. The wider principle that had been encapsulated by Blackstone prevented the courts from adjudicating on "issues arising in or concerning the House, viz whether or not a member has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters". Cases such as the one before the Privy Council illustrated how public policy, or human rights, issues could conflict. There were "three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail."
Very recently, in the case of R. vs. Currie, it was alleged against Harry Greenway, a Member of Parliament, that he had accepted a bribe from Plasser, Jurasek and Brooks as a reward for using his influences as a Member of Parliament in respect of Jurasek's application for British nationality. The indictment of the four was sought to be quashed on the basis that the bribery of a Member of Parliament was not a crime and that, in any event, the court had no jurisdiction for only Parliament could try a member for bribery, the matter being covered by Parliamentary privilege. The trial judge, Buckley, J. did not agree. He quoted the Salmon Commission Report. He also noted that Lord Salmon, speaking in the debates of the House of Lords, had said, after referring to the immunity enjoyed by Members of Parliament from being prosecuted under the criminal law if they took bribes, that, "at Common Law you cannot be convicted of bribery and corruption unless you are a holder of an office, and most of us are not the holders of an office". Viscount Dilhorne had agreed. Buckley, J. could not accept that a question of such great importance could turn on semantics. In his view, "To hold that the existence of a Common Law crime of bribing a Member of Parliament depends upon the meaning to be given to the word "office" in this context, as opposed to looking at the principle involved, would not be calculated to commend the Criminal Law to the public it should serve." Buckley, J. noted what had been said by James Martin, C.J. in R.V. White, 13 SCR (NSW), 332, which case concerned the attempted bribery of a Member of Parliament in New South Wales, "........a legislator who suffers his votes to be influenced by a bribe does that which is calculated to sap the utility of representative institutions at their foundations. it would be a reproach to the Common Law if the offer to, or the acceptance of, a bribe by such a person were not an offence". Faucett, j., agreeing with the Chief Justice, had said, "The principle is, that any person who holds a public office or public employment of trust, if he accepts a bribe to abuse his trust - in other words, if he corruptly abuses his trust - is guilty of an offence at Common Law; and the person who gives the bribe is guilty of an offence at Common Law". The same view had been taken in Canada in R V. Bunting, 1885 Ontario Reports 524; that was a case of a conspiracy to bring about a change in the Government of the Province of Ontario by bribing members of the Legislature to vote against the Government. R.V.. Boston,(1923) 33 Commonwealth Law Reports 386, was also a case where similar arguments had been advanced and turned down, and Buckley, J.quoted this "memorable sentence "from the judgment of Higgins, J.:" A member is the watch-dog of the public; and Cerberus must not be seduced from vigilance by a sop." Based upon these judgments, Buckley, J., was satisfied that "the undoubted common law offence of bribery is not artificially limited by reference to any particular shade of meaning of the word 'office'. The underlying reason or principle is concerned with the corruption of those who undertake a duty, in the proper discharge of which the public is interested." The learned Judge then considered the question of parliamentary privilege and noted Article 9 of the Bill of Rights, 1688, which has already been quoted. The learned judge quoted Lord Salmon, speaking in the House of Lords, thus: "To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake". After quoting the Bill of Rights, Lord Salmon had continued : "Now this is a charter for freedom of speech in the House it is not a charter for corruption. To my mind, the Bill of Rights, for which no one has more respect that I have, has no more to do with the topic which we are discussing than the Merchandise Markets Act. The crime of corruption is complete when the bribe is offered or given or solicited or taken." Buckley, J., commented, "It is important to note that which Lord Salmon pointed out, namely, that corruption is complete when the bribe is offered or given, solicited or taken. If, as is alleged here, a bribe is given and taken by a Member of Parliament, to use his position dishonestly, that is to favour the briber as opposed to acting independently and on the merits, the crime is complete. It owns nothing to any speech, debate or proceedings in Parliament. Proof of the element of corruption in the transaction is another and quite separate consideration. Privilege might well prevent any inquiry by a court into Parliamentary debates or proceedings. See : The Church Of Scientology v. Johnson-Smith, 1972, 1 KB 522. However, it is not a necessary ingredient of the crime that the bribe worked." Referring to the case of Ex parte Wason, to which we shall make more detailed reference later, Buckley, J., observed that the substance of the proposed indictment there was that certain parties had conspired to make false statements in the House of Lords and Cockburn, C.J., had held "that the making of false statements in either House of Parliament could not be the subject of criminal or civil proceedings and nor could not be the subject of criminal or civil proceedings and nor could a conspiracy to do so". It seemed clear to the learned judge that the court had Article 9 of the Bill of Rights well in mind. "The only candidate", he said, "for the unlawful act or means was the very act which was not subject to the criminal law". He added that he could not see that the reasoning of Ex parte Wason, assuming the decision to be correct, would apply to alleged bribery for the proof of which no reference to going on in Parliament would be necessary. This approach, he found, happened to be in line with several United States authorities on their "Speech or Debate Clause" which, for all practical purposes, was the same as Article 9. That a Member of Parliament against whom there was a prima facie case of corruption should be immune from prosecution in the courts of law was to Buckley, J.'s mind an unacceptable proposition "at the present time". He did not believe it to be the law. The Committee of Privileges of the House was "not well equipped to conduct an enquiry into such a cases ..................nor is it an appropriate or experienced body to pass sentence .................. The courts and legislatures have over the years built up a formidable body of law and codes of practice t achieve fair treatment of suspects and persons ultimately charged and brought to trial ................. Again, unless it is to be assumed that his peers would lean in his favour why should a Member be deprived of a jury and an experienced judge to consider his guilt or innocence and, if appropriate, sentence ? Why should the public be similarly deprived." The prosecution went ahead against the other accused but the charge was not established. The member of Parliament was., therefore, also acquitted.
The Law Commission in England very recently published a Consultation Paper (No.145) entitled "Legislating the Criminal Code - Corruption". It refers to the Salmon Commission Report, the report of the Nolan Committee on the Standards of Conduct in Public Life and recent judgments (to one of which we shall advert). It states, "Whether Members of Parliament are subject to the criminal law of corruption, and more particularly whether they should be, are both contentious issues currently to the fore in public debate. As to the latter, on the one hand it has been said of Members of Parliament that 'Few are in a higher position of trust or have a duty to discharge in which the public have a greater interest', and they should arguably therefore be subject to the criminal law. On the other hand, they are sui generis, in that, although they have be benefit of Parliamentary privilege, which protects them against criminal liability for things said in Parliamentary proceedings, they are, in consequence, subject to the jurisdiction in Parliament".
Halbury's Laws of England, Fourth Edition, in dealing with Members of Parliament under the subject of "Criminal Law, Evidence and Procedure" (in Volume 11, para 37), sets out the law succintly:
"37. Members of Parliament. Except in relation to anything said in debate, a member of the House of Lords or of the House of Commons is subject to the ordinary course of criminal justice the privileges of Parliament do not apply to criminal matters."
Before we deal with the judgment of the United States Supreme Court in United States v. Daniel B. Brewster, 33 L. Ed. 2d 507, which lends support to the learned Attorney General's submissions, we should set out the speech or debate clause in the Constitution of the United States and refer to the United States Supreme Court judgment in United States v. Thomas F. Johnson, 15 L.Ed. 2d 681, to which the latter judgment makes copious reference.
Article 1, Section 6 of the United States Constitution contains the speech or debate clause. Referring to United States Senators and Representatives, it says : (F) or any Speech or Debate in either House, they shall not be questioned in any other Place".
Thomas F. Johnson was convicted by a United States Distinct Court for violating a federal conflict of interest statute and for conspiring to defraud the United States. Evidence was admitted and argument was permitted at the trial that related to the authorship, content and motivation of a speech which the Congressman had allegedly made on the floor of the House of Representatives in pursuance of a conspiracy designed to give assistance, in return for compensation, to certain savings and loan associations which had been indicated on mail fraud charges. The conviction had been set aside by the Court of Appeals on the ground that the allegations in regard to the conspiracy to make the speech were barred by the speech or debate Clause. Finding that the evidence that had been adduced upon the unconstitutional aspects of the conspiracy count had infected the entire prosecution, the Court of Appeals had ordered a new trial on the other counts. The Supreme Court , in further appeal, held that the prosecution on the conspiracy charge, being dependent upon an intensive inquiry with respect to the speech on the floor of the House, violated the speech or debate clause warranting the grant of a new trial on the conspiracy count, with all elements offensive to the speech or debate clause eliminated. The earlier cases, it said, indicated that the legislative privilege had to be read broadly to effectuate its purpose. Neither of those cases, however, had dealt with criminal prosecution based upon the allegation that a member of Congress had abused his position by conspiring to give a particular speech in return for remuneration from private interests. However reprehensible such conduct might be, the speech or debate clause extended at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of Government functions. The essence of such a charge in the context was that the Congressman's conduct was improperly motivated, and that was precisely what the speech or debate clause generally foreclosed from executive and judicial inquiry. The Government argued that the clause was meant to prevent only prosecutions based upon the "content" of speech, such as libel actions, but not those founded on "the antecedent unlawful conduct of accepting or agreeing to accept a bribe". Th language of the Constitution was framed in the broadest terms. The broader thrust of the privilege had been indicated by Ex parte Wason, which dealt specifically with an alleged criminal conspiracy. Government had also contended that the speech or debate clause was not violated because the gravamen of the charge was the alleged conspiracy, not the speech, and because the defendant, not the prosecution, had introduced the speech. Whatever room the Constitution might allow for such factors in the context of a different kind of prosecution, they could not serve to save the Government's case under the conspiracy charge. It was undisputed that the Congressman had centered upon the questions of who first decided that a speech was desirable, who prepared it, and what the Congressman's motives were for making it. The indictment itself focused with particularity upon motives underlying the making of the speech and upon its contents. The prosecution under a general criminal statute dependent on such inquiries necessarily, contravened the speech or dabate clause. The court added that its decision did not touch a prosecution which, though, as here, it was founded on a criminal statute of general application, did not draw in question the legislative acts of a Congressman or his motives for performing them. The court expressly left open for consideration the case of a prosecution, which though it might entail an inquiry into legislative acts or motivations, was founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.