The Unanswered Question

It might not have been so bad if this had been only been the cynical andincorrect perception of the stung MPs. Unfortunately for the country, the MPswere only voicing the ugly reality in the country - a state of affairs wherepolicy is held hostage by big business and vested commercial interests. So tothat an extent, what the sting really lays bare is how pervasive the diseaseis - and it is important in this regard to pay attention to what Bahalhimself says: "If it had been a different set of middlemen, theconfiguration of MPs would obviously have reflected that." Let's alsoremember that the majority of the hypocritical lot now assuming the higher moralground and breaking into paroxysms of shock and outrage and sitting in judgementover these exposed MPs would itself be guilty of at least the same - if notworse - crime.

This is therefore just the exposed tip of the larger iceberg of corruptionthat is crying to be redressed.

But what about the sting operation itself? Was itlegal, ethical and in public interest? Whenever such operations take place andare publicized, such questions are inevitably raised, particularly by theaffected parties. There is no law which prohibits such operations or "invasionof privacy" - even if this were to be considered as such. It is also not thecase that a journalist offering such "bribes" would himself be guilty underthe Prevention of Corruption Act, since he had no "mens rea" or guiltyintent, which is an essential ingredient of a criminal offence. After all, eventhe police and the CBI often lay such traps to catch bribe takers red handed. Inmy view, there is no violation of any ethical principle in conducting such stingoperations.

It is clearly in public interest that such crooked legislators and publicservants are exposed and punished. Such sting operations now possible withcurrent electronic technology are the most effective way of ensuring that suchpersons are punished. It is only such visual exposure that spurs parties andgovernments to take action against such exposed persons and that too onlybecause of the public embarrassment that this causes. I am sure that no suchaction would be taken if such stings were not publicized. It is difficult tobelieve that parties are unaware of the crimes that their M.P.’s arecommitting. But there is no effort to take action against them, till they arecaught and publicly exposed.

(Expectedly, the reported replies from the exposed MPs to the notice from LokSabha Secretariat have been on predictable lines: alleging a conspiracy againstthe country, Parliament, their parties or themselves individually - one of themeven found "the notice very vague" as he could not answer the chargetill he was "furnished the full footage".)

I also do not subscribe to the argument that such sting operations involve aninvasion of privacy or a "gentlemen’s agreement of confidentiality". Nopublic servant or legislator can claim any privacy to take money for conductingtheir official functions. In fact, I for one am of the view that most publicoffices should have continuous video monitoring of what transpires in thoseoffices. This should be available to the people under the right to information.Today, the technology exists for doing this fairly inexpensively and it shouldbe done. And the public interest involved in exposing corruption in high placesoverrides any "gentlemen’s agreement of privacy".

Of course journalists would have to usually honour their word, if they are todevelop confidential sources. Full credit must however be given to Bahal and histeam on this sting operation. They kept on assiduously following up with the MPsfor almost a year without their cover being broken. They not only got the MPs toask the questions, someof them absurd, but also waited for the answers before airing the story.Such patience has become extinct in today’s culture of instant results andinstant gratification.

With the coming of the Right to Information Acthowever, many of these things would become otiose. The only reason why MPs wereable to demand bribes for asking questions was because asking questions to getinformation about any aspect of government was their privilege which was notavailable to common citizens. Now, with the Right to Information Act, everycitizen has been given the same right, and any information which cannot bedenied to Parliament, cannot be denied to a citizen either. This Act will now doaway with the premium on this privilege of asking parliamentary questions. ThisAct will not only empower the citizens and work towards restoring their positionof the real masters in a democracy, it will also make the task of investigativejournalists easier.

Finally, what action can be taken against the MPs whohave been caught? Firstly, it amounts to breach of privilege and both houseshave already initiated steps towards punishing the MPs for this breach. TheRajya Sabha has already suspended the lone Rajya Sabha MP caught, pending thefinal report of the privileges committee. For this breach, they can bereprimanded or suspended for up to the remainder of their term in Parliament.They cannot however be disqualified from contesting the next general elections.Apart from this, they can also be prosecuted under the Prevention of CorruptionAct, which makes it an offence for any public servant to take any considerationfor performing an official Act. Asking questions in Parliament is an officialact of an MP who has been held to be public servants by the Supreme Court.

The Court, however, in the JMM bribery case (where JMM MPs were charged fortaking bribes for voting) held that these MPs cannot be prosecuted since Art 105of the Constitution dealing with powers of privileges of MPs says that "No MPshall be liable to any proceeding in any court in respect of anything said orany vote given by him in Parliament.." It was thus held by the Court thatselling his vote is a Privilege of an MP. It could therefore be argued on aparity of reasoning that selling one's right to ask questions is also aprivilege of an MP and an adjunct to his privilege of speech in Parliament.

This is obviously an absurd view, but one which has unfortunately beenpropounded by a Constitution bench of the Supreme Court. It remains the law ofthe land till it is overruled by a larger bench. This cash for questions casewould be an appropriate case to seek a review of the law laid down by the Courtin the JMM case. Particularly so, because Shibu Soren - and many of those otherstoo smart to ever be caught on camera - would surely be solemnly voting to"condemn" their small-change counterparts.

The MPs involved in this case should be prosecuted by the CBI under thePrevention of Corruption Act. If they take shelter behind the JMM judgement ofthe Supreme Court, the CBI can at that stage seek reconsideration of thejudgement by a larger bench. With the state of public opinion on this issuebeing what it is, I am confident that the court will reconsider its earliererroneous view.

Prashant Bhushan is a public interest lawyer in the Supreme Court.