Comparative analysis of P.V. Narasimha Rao v. State and U.S. v. Brewster

Supallab Chakraborty

Symbiosis Law School, Pune

Editor’s Note: The paper is a comparative analysis between the cases of P.V. Narasimha Rao v. State and U.S. v. Brewster”


Indian Legislature always has had a soft corner for those who are occupying seats in government offices acquired by them by means of election. Let us take the example of Section 9 of Representation of People’s Act which states that the state shall have conclusive proof to the fact that the person dismissed on the grounds of corruption of disloyalty and until proved the person may keep holding his office.[1] Although there is a provision in the Act that those who are corrupt or are booked for cases could not file candidature no matter they are guilty or not there is no such provision for them once they have occupied a seat. There is plethora of cases filed against sitting MLAs MPs and even Indian Foreign Services[2] for that matter; but none has been seen till the end. It is as if a cocoon of protection has been built by the legislative and judicial process around these extra privileged persons. One such example of impugned decision by the Supreme Court is that of P.V. Narasimha Rao case; where the court has laconically favoured the political crowd by wrongfully interpreting the discretionary powers entitled to them by the constitution. But before going in depth into the technicality of the cases we have understand the two states in consideration, the way their government function and the extent the judiciary can intervene into the parliament.

Indian and U.S. functional polity

While U.S. Constitution is designed on the basis of the principle of Separation of Power[3]; Indian constitution expressly does not recognize separation of powers between Legislative, Executive and Judiciary. However in India there is no differentiation and demarcation of the function between the Legislature and the Executive and generally speaking that one organ shall assume the functions belonging to the other organ, yet, there is no separation between them in its absolute rigidity[4]

Difference in the Court’s Outlook

Despite the fact that there is rigidity in the functioning of the government the U.S. court has been bold enough to not to give the judgement in favour of the corrupt politicians and state that the “primary responsibility for punishing the wrongdoer rested with the Judiciary and it is the duty of the same to delimit the scope of legislative immunity”[5]. Whereas in India where there is no such express provision or rigidity the court did not intend to or was not bold enough to intervene into the matters of parliament. The court laconically shifted the burden of the lacunae to the parliament stating that since there is no express authority mentioned was specified as competent to remove a Member and to grant sanction for his prosecution under section 19(1) of the Prevention of Corruption Act the onus is not necessarily on the court.[6] The Supreme Court like in case of one of the very few instances has acted as a “court of law” instead of “court of justice” as it ideally should but the outcome of it was not satisfactory.


Concise Facts of the Case

U.S vs. Brewster (United States)

Appellant, a former United States Senator was charged with solicitation and acceptance of bribes. The district Court, on Appellant’s pre-trial motion, dismissed the indictment on the ground that the Speech or Debate Clause of the Constitution shielded him ‘from any prosecution for alleged bribery to perform a legislative act’. The United States filed a Direct Appeal in the Supreme Court of United States, in which the appellant contends that the Supreme Court does not have the jurisdiction to entertain because the District Court’s action was not a decision or judgment setting aside or dismissing’ the indictment but was instead a summary judgment on the merits based on the facts of the case.


Whether a Member of Congress may be prosecuted under 18 U.S.C. ss 201(c)(1), 201(g), for accepting bribe in exchange for a promise relating to an official act?

P.V. Narasimha Rao v. State (India)

In the General Election for 10th Lok Sabha held in 1991 Congress (I) party emerged as the single largest party and it formed the Government or P.V. Narasimha Rao. The support of 14 members was needed to have the no-confidence motion defeated. On 28-7-1993, the no-confidence motion was lost, 251 members having voted in support and 265 against. Certain members of the Lok Sabha having allegiance to the Jharkhand Mukti Morcha (the JMM), Janata Dal, and Ajit Singh group (the JD, AS) voted against the no-confidence motion. Ajit Singh abstained from voting thereon.  One Shri Ravindra Kumar filed a complaint on 1-2-1996 with the CBI wherein it was alleged that in July 1993 a criminal conspiracy was hatched pursuant to which the above members agreed to and did receive the bribes, to giving of which P.V. Narasimha Rao, MP and Prime Minister, along with others were parties to vote against the no-confidence motion. A prosecution was launched and cognizance was taken by the special Judge Delhi.  The persons sought to be charged as aforesaid, filed petitions in the Delhi High Court seeking to quash the charges. The HC dismissed the petitions. Hence an appeal was filed in the Supreme Court of India and then referred to a Constitution Bench.


  1. Whether by virtue of article 105 of the Constitution of India, a Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal court?
  2. Whether a Member of Parliament is a “public servant” falling within the purview of the Prevention of Corruption Act, 1988?

Comparison of judgment delivered

On a critical analysis of the entire judgement what we find that in the judgment of U.S. v Brewster the judges have taken into consideration in the reflective effect of the judgement instead of going ahead and interpreting the rules in its literal sense. Thereby they were successful in curtailing the aspect of corruption involved not only in this case but also in the upcoming judgement this rule will be reflected. The element of corruption was not taken into consideration in the majority decision of P.V. Narasimha Rao case. The reflective effect of this interpretation on the society was not taken into consideration

Difference in interpreting Parliamentary Privilege

In the Brewster case the Supreme Court of the United States narrowed the scope of the Speech or Debate Clause of the U.S. Constitution which provides immunity to the Senators from certain civil and criminal suits concerning their legislative acts.  In explaining the purposes of the Speech or Debate Clause, the Supreme Court traced the ancestry of the Clause to the English Bill of Rights of 1689, which they put as “the culmination of a long struggle for parliamentary supremacy”[7] In its first decision interpreting the Clause, Kilbourn v. Thompson[8] the Supreme Court read the Clause’s protection expansively, applying it “to things generally done in a session of the House by one of its Members in relation to the business before it.” Not all actions taken by a Member in the course of his congressional duties are covered by the Speech or Debate Clause.  The Court went ahead to stress upon the scope of the Clause in the following words and finally, came up with a landmark interpretation of the Clause:

“The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.”[9]

As is also aptly, pointed out by Lord Salmon in the Salmon Commission Report[10] “Now this is a charter for freedom of speech in the House; it is not a charter for corruption”.

 Judges in Brewster diverged from earlier popular opinion in the case of United States v. Johnson[11] in which the Court of Appeals had set aside the conspiracy conviction of a former congressman. What is prominent over here is that we find an element of judicial activism involved which we find missing in the Narasimha Rao judgment.

Narasimha Rao judgment blatantly took the literal interpretation of the provision 105(1) and 105(2) rather increased the scope of immunity under it. According to article 105(2) of the Constitution of India a Member of the parliament is immune from any proceeding against him in respect of any Vote or in respect of any speech made by the M.P in the parliament. According to the provisions of the parliament such immunity is necessary in order to protect the integrity of the Country. But such immunity cannot go beyond the ambit of the scope of the article. Article 105(1)of the constitution of India say that the freedom of speech in Parliament is absolute and independent of Article 19.  And Article 105(2) says that the constitution of India provides Immunities of M.Ps in respect of anything said or any vote given by him in Parliament. But these Immunities do not allow the MPs to accept bribes and indulge into immoral practices. The right to indulge into bribe is no where explained in the Articles of the Constitution as it is an illegal practice.

Difference in using Interpretation Rules

Now there can be two counter arguments to it which were considered.

Firstly something we term as the golden rule by which Sec2(c)(viii) & 2(b) of the Prevention of Corruption Act and The Representation Of The Peoples Act the Member of the Parliament comes under the term of Public Servant. Thus taking of bribe by a Public Servant under his office capacity is an illegal Act which needs to be prosecuted.[12]

Secondly and the most important aspect that should have been taken into consideration is the reason behind the statute i.e. the mischief rule. The purpose behind the immunity of the Article is to let the M.P speak his heart out without any fear or scare of being convicted. If a M.P has to remain in fear of conviction or proceeding then how can he truly represent the constituency he represents. In order to give the MP safeguard the constitution of India found this immunity for the MPs so that they cannot be prosecuted for anything they say or vote in the Parliament. Though the immunity given to the members of the Parliament under Article 105(1) and (2) has wide amplitude but the act of bribe taking cannot be included into it. The offence of bribe taking is a big offence and it involves the act of breaking of trust and misuse of the belief of the people.

However the court did not take into consideration any of the above and thereby came to an absurd rationale that the alleged bribe-takers were entitled to immunity under Art. 105(2) and as the alleged conspiracy for acceptance of bribe was “in respect of” or having nexus with the vote against the no-confidence motion. Mr. Ajit Singh, the MP who had abstained from voting, however, was not to be entitled to such immunity because he didn’t actually exercise his vote.  On the contrast, with respect to the bribe -givers, charges against them of bribe giving were held to be valid and sustainable.[13] What was the dissenting judgement of the Brewster case given by Brennan and White, JJ. and later joined by Douglas, J was taken up as the majority judgement in this case.

Difference in scope of deciding the case

But we cannot wholly blame Supreme Court for not taking up a bold step because there was a lot of difference in both the cases and would have given rise to a lot of controversy. For example under the Prevention of Corruption Act 1988 though it is stated a Member of a parliament is a Public Servant there is no authority competent to remove him from his office and the Supreme Court is of the opinion that though there is no authority to remove the MP from his office he does not cease to be a public Servant. The Constitution of India does not give power even to the President to remove a MP from his office. But the house can pass a resolution against a member who is found guilty of the breach of Privilege and acceptance of bribe by a member in connection of the business of the house. However, if this position were to be applied in the Indian scenario, it would amount to making the Parliament a judge in its own case, which would lead to further corruption, as MP’s would then try to appease those Members who are in charge of  deciding their fate.

Difference in the opinion about Corruption and Bribe taking

Moreover in order to draw an analogy from the case of U.S v. Brewster, it must be stated at the outset, that Senator Brewster was charged with the solicitation and acceptance of bribe so as to influence his performance of legislative duties. In stark contrast, in the P.V. Narasimha Rao case, bribes were exchanged between chunks of MP’s in collusion to defeat an entire no-confidence motion in the House, which is a more radical act of corruption when compared to Brewster, because in this case, the credibility of entire government was at stake.

Also, the rationality of distinction made by the Indian Supreme Court between bribe-givers and bribe –takers, rendering bribe givers susceptible to prosecution but not bribe takers, is absurd according to them indignation should not entitle them to interpret the constitution narrowly. However, an apt rationale can be found in the majority opinion in Brewster, and their verdict that the illegal conduct is taking or agreeing to take money for a promise to act in a certain way……..acceptance of the bribe is the violation of statute, not performance of the illegal promise.


“That a Member of Parliament against whom there is a prima facie charge of corruption should be immune from prosecution in the courts of law is to my mind an unacceptable proposition at the present time. I do not believe it to be the law.”

– Buckley J., in R v. Currie; 1992

The discussion pertaining to the extent of immunity of MP’s can be summed in this one statement made by the learned Judge.  The office of a Member of Parliament is one of great honour and carries with it a special duty to maintain the highest standards of probity, and this duty invariably, needs to be strictly observed.

 To resolve this conflict of interpretation, a fair distinction needs to be drawn between the bona fide and mala-fide acts of the MP’s. Immunity must be granted only so far as the Member is acting in good faith and performing his duties with conscience. The moment there is a taint of any illegal activity upon such a duty, the veil of immunity should to be lifted to bring the MP at par with a common man.

Further, in today’s times, when political corruption has crossed all limits, it would be even more dangerous, to confer such an immunity upon the callous political class of India. Time has come to make the legislators accountable for every single rupee of the common man and it is in no way unreasonable to demand highest morals and codes of conduct from our legislators. In fact, that is the basic demand of the office of the Member of Parliament.

Edited By Amoolya Khurana

[1] Lalu Prasad @ Lalu Prasad Yadav v. State through C.B.I(A.H.D.) Ranchi, Jharkhand; AIR(2003)SC 3838

[2] Ratan Tata v. Union of India; (2014) 1 SCC 93; Nira Radia  group of cases handled by a special team under CBI allegedly involved in corporate lobbying and 2G scam spectrum broking still holds office as an officer of Indian Foreign Services.

[3] Jennings Law and the Const., App. 1 (280-304) 1959; Finkelman, Separation of Power, 2 Toranto L.J. 313 stated that there should be separate organs for each, working together but none of them should be dependent on or discharge the function on behalf of the other.

[4] Ram Jawaya Kapur v. State of Punjab; AIR 1955 SC 549; A Regd. Society v. Union of India, AIR 1999 SC 2979

[5] Tenney v. Brandhove, 341 U.S. 367 at 371; U.S. v. Brewster, 408 U.S. 501 (1972)

[6]  Santosh Kr. Jha v. UOI & Ors, ILR (2012) I Delhi 473; P.V. Narsimha Rao v State, AIR 1998 SC 2120

[7] Paragraph 3 page 6 of the judgment

[8] 103 U.S. 168, 26 L.Ed.377 (1881)

[9] Paragraph 9, page 16 of the Judgment

[10] Report of the Royal Commission on Standards of Conduct in Public Life, 1976 (chaired by Lord Salmon)

[11] 383 U.S. 169, 86 S.Ct.749, 15 L.Ed. 2d 681(1966)

[12] L.K. Advani v. CBI; 1993 IIIAD Delhi 53, 1997 RLR 292

[13] Paragraph 137, page 730

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