Boss’ bribe: Is there any cover anywhere?

Protection is offered only to the President and Governors under the Article 361 of the Constitution. The Article says, “President and Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and duties.”

The Article 361(2) says: “No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.” It means after the term is over, criminal case can be initiated. However, the Chief Minister of a State is not immune from court proceedings. Best example is conviction of Tamil Nadu CM Jayalalithaa in neighbouring Bangalore.

Though not as a CM, Chandrababu Naidu can have privilege as a legislator, except in case of commission of a crime, the best example being the arrest of Revanth, who being an MLA indulged in bribing. Privilege extends to legislative functioning only. In JMM bribery case, a Constitution Bench of Supreme Court held that the privilege does not extend to the act of bribe-giving, even if it was done by a legislator.

The Article 105 says that no member 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. The Article 194 (2) similarly immunes the members of state legislators. Immunity is available to a vote given in the house, even if it is caused by bribe! Unfortunately, this was the judgment of Supreme Court in P V Narasimha Rao v State (CBI/SPE) [1998(4) SCC 626].

Thus even applying this, had an MLA taken a bribe for voting on that consideration, he is immune as of today. But the bribe-giving episode involving Revanth Reddy happened outside the House for a vote to be cast inside the House. The bribe givers – whether they are MLAs, MPs (of Lok Sabha or Rajya Sabha), Chief Minister or Prime Minister – are liable, if evidence is there to prove the guilt. Late P V Narasimha Rao was prosecuted as giver of bribe but was acquitted due to lack of evidence, and not because of any immunity.

The liability or immunity of Chandrababu Naidu depends on the weight of evidence that is procured. Section 8 of APRA Another question is whether Section 8 of AP Reorganization Act 2014 comes to rescue of Chandrababu Naidu? This section is meant for tackling issues of law and order arising out of division of state, if any. Bribing is a crime and not an issue arising out of threat to safety of any Andhra person in Hyderabad. It is ridiculous to contend that any Andhra person can commit theft, murder, rape or dacoity and happily escape because of Section 8.

If the contention of Andhra Media Advisor is accepted, all Andhra brothers will be emboldened to commit any crime they like to against their own brothern or Telangana people. Fortunately no Andhra person, including Chandrababu, is thinking like that. This contention reflects a panic mind. Another question is whether privacy of Chandrababu was invaded? If someone is suspected of committing a crime, there is no question of privacy. Privacy does not mean facility to commit crimes in secrecy. Criminal suspicion is exception to privacy.

Trappings of tapping

The trapping in ACB cases is an age-old method, though not mentioned in the Prevention of Corruption Act 1988. In cases of prostitution and bribery, it’s a fool-proof method of collection of evidence, i.e., investigation. Hence it need not be part of any written code. The evidence collected through that process is accepted and relied upon to convict and sentence thousands of corrupt employees for the last several decades.

An AP minister stated that ‘trap’ was not legitimate. He should know that trap is the best recognised way culprits are caught in bribery and prostitution. Supreme Court in State of Maharashtra v. Rashid B. Mulani, decided on 4 January, 2006, by Justice S B Sinha & Justice R V Raveendran (http://indiankanoon.org/doc/450090/) validated the conviction of a bribe-taking public servant based on the trap.

It has set aside the judgment of High Court of Bombay which accepted contention that bribe amount was a loan installment, and confirmed the guilt of the accused. The Supreme Court found that the matter had been pending for about 3 years before the Special Judge, and about 8 years before the High Court and, thereafter, for 8 years before this Court. The accused was hardly 32 years old when the incident occurred and now more than 50 years old.

The accused was a Talathi coming from a poor background with a family to support. Under the circumstances, while restoring the conviction, the SC reduced the sentence from one year to four months both under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act. Both the sentences were to run concurrently. It is called legal entrapment or legitimate trap.

Interestingly, Revanth Reddy was caught in a reverse trap, where bribe-giver is trapped by a complainant, bribe-taker. Both are public servants. Stephenson’s report was confirmed by the presentation of notes, two eye witnesses besides Revanth Reddy, and another statement of Stephenson. The Telugu people have to wait and see how many years this case would take and how many times the case goes to appellate levels. The general rule of law is if the case is strong against the accused, the case will be surely delayed beyond imagination.

Tapping in the trap

Earlier trapping was used to collect evidence through eye witnesses only. With advent of technology, the audio-video recordings are possible to corroborate those witnesses. The moment complaint is written about the offer of bribe, the ACB can legally monitor call data records, fix cameras to record. If manipulation or tampering or mimicry is ruled out which is possible in forensic laboratory, the tape recorded conversation or video footage was accepted as evidence in hundreds of cases so far. The call data record CDR was and will be the basis of conviction.

Sting by media

Even the sting by media is validated by court if that is genuine and in public interest. Example is the expulsion of 11 MPs in 2005, which was exposed by a media sting. The Lok Sabha inquiry committee said "Media is in no way to blame for exposing genuine wrong doing." The Committee headed by Pawan Kumar Bansal endorsed the view taken by the First Report of the Committee of the British House of Commons on Standards in Public Life under the Chairmanship of Lord Nolan. "A free press using fair techniques of investigative journalism is an indispensable asset to our democracy". Every citizen has a constitutional duty to prevent crime, including crime of bribery.

In Aniruddha Bahal v State (2010 172 DLT 269) the Delhi High Court held that “it is built-in duties that every citizen must strive for a corruption free society and must expose corruption whenever it comes to his or her knowledge”. If someone just provokes a public servant to accept his offer of bribe only to test him, it is illegal entrapment and courts cannot accept the same. There should be real demand for bribe and it should have been demanded by the public servant.

In BMW runaway case, where a rich spoiled brat killed pedestrians while asleep in inebriated driving incident, there was a sting by media exposing a lawyer purchasing a key prosecution witness to defend the rich criminal. Supreme Court praised the TV channel for its operation in public interest and convicted the lawyer, too. If a public servant is caught red-handed, besides prosecution, he will be facing a departmental inquiry.

Thousands of employees were suspended on charges of accepting small amounts of bribe, besides getting arrested. They were jailed and dismissed. Eleven MPs were immediately expelled by the Parliament in 2005 for taking bribe to ask questions favouring big companies. If MLAs bribe, their respective Assembly Houses should expel them from being a public representative, if rule of law is followed.