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(65) It was contended that the Prevention of Corruption Act, 1988 had brought about no change in the position and that the definition of 'public servant' as contained in clause (viii) of section 2(c) of the Act does not include MLAs or MPs and in support my attention was drawn to the following appearing in the Lok Sabha and the Rajya Sabha debates on the Bill which led to the passing of the Act of 1988: Lok Sabha "Prevention of Corruption Bill, 1987 page 362 Shri E. Ayyapu Reddy Now, what are the changes this Bill is trying to bring about? Sir, I may submit that this Bill has merely compiled the various provisions of the Indian penal Code which were prevalent and the Prevention of Corruption Act and the Ordinance put together which as I could see, there is no doubt an enlargement of the definition of a "Public servant" I do not see what is the rationale behind this enlargement of the public servant. You were anxious to enlarge your jurisdiction. While the investigating agencies and the prosecuting agencies were not even able to meet the fringe of the problem with regard to the corruption that was prevalent among the public servants as defined previously under Section 21 of the Indian Penal Code, where was the necessity for you to expand it? Are you able to say that on account of this non-expansion, on account of the original definition which was prevailing previously, the agencies were prevented or were not able to get at the roots of corruption. It is not your case at all. Now in the expanded definition you have included elected presidents of cooperative societies. If I am not wrong, in this definition you have included also elected MLAs and MPs within the definition of public servant. You have not stated that elected MPs as well as MLAs also come within the meaning of this Bill. Is it your intention to include MLAs and MPs within the sphere of this Bill. Please make it clear because by reading the definition one gets the impression that if he is merely discharging his public duties whether he is appointed by a Government or not, he will be deemed to be a public servant. The definition is very sweeping: "Any person who holds an office by virtue of which he is authorised or required to perform any public duty" Explanation I says: " Persons falling under any of the above subclauses are public servants, whether appointed by the Government or not." Prevention of Corruption Bill, 1987 page 422-424 Shri P.CHIDAMBARAM You cannot do it in that manner. That kind of Code will take decades to pass. What we are trying to do is to make a penal law, a bill for a penal law which can only create offences and specify penalties and this Bill, I believe, does it. We have to supplement this with other laws. Sir, a number of questions have been raised about certain provisions of the Bill. Since Members by and large have accepted the provisions of the Bill, I do not want to dilate upon them. Let me point out one or two things. For example, a Minister is a public servant Therefore, there is no doubt about the fact that a Minister would certainly be covered by this Bill. A question has been raised what is the position of a Member of Parliament oa Member of a Legislative Assembly? We have not done anything different or contrary to the law as it stands today. Under the law, as it stands today, the Supreme Court has held in Antulay's case that a Member of the Legislative Assembly is not a public servant within the meaning of Section 21 of the Indian Penal Code. I personally think that it is very difficult to say when an Mla or an Mp becomes a public servant. I believe that when an Mp functions qua. Mp, perhaps he is not a public servant and therefore, we are not attempting a definition which will lead to difficulties. We think that there could be situations when an Mp or an Mla does certain things which are really not part of his duties as an Mp or an MLA. We think that an Mp or an Mla could in certain circumstances hold an office where he will be discharging certain public duties. These two situations are covered by this Act. If an Mp or an Mla does certain acts not qua-MP or qua-MLA, but as an individual, abusing his position. I am not using the word 'Office'. I think he will be covered like any other individual under Sections 8,9 and 12. When an Mp or an Mla holds an office, and by virtue of that office he has to discharge certain public duties, I think he will be covered under Section 2 clause (b) read with Section 2 clause (c) sub-clause (viii). I think these two situations are quite adequate to take care of defaulting Members of Parliament and defaulting Members of the Legislative Assemblies. If any other situation arises future, we shall certainly consider amending the Act at a suitable time. We are trying to fit this in with the pronouncement of the Supreme Court and at the same time taking note of the felt needs of the situation. Sir, a question has been asked who will be the competent authority to sanction such a prosecution. The question itself is wrongly addressed. Sanction for prosecution is required only in the case of public servant. In the case of a person other than a public servant and in the case of a person committing offenses under Section 8 or Section 9 or Section 12, no sanction is necessary. If you will kindly see the section which requires sanction, namely Section 19, it requires sanction only in respect of offenses punishable under Section 7, 10, 11, 13 and 15 committed by a public servant. The question may not arise in the case of an Mp or an MLA. Therefore, I do not think there is any problem. Rajya Sabha Prevention of Corruption Bill, 1987 page 252-254 Shri P.CHIDAMBARAM One of the hon. Members raised question about the position of the Ministers. I think the position is beyond doubt. Ministers are public servants. They have always been public servants and they are public servants under this law and Ministers will come under the purview of this Bill. An HON. Member : What about MPs? Shri P.CHIDAMBARAM : I am coming to that. A question was asked about the Members of Parliament and Members of Legislative Assembly. Madam, under the law declared by the Supreme Court a Member of Parliament or a Member of the Legislative Assembly per sec.. is not a public servant but there can be a number of situation where an Mp or an Mla holds an office and discharging other duties which brings him under this Bill. If he holds another office in a Coop. Society, if he holds another office in an public institution, if he discharges certain duties which will come under the defection of public duty clearly, then he would be within the definition of 'public servant' under this Bill. But these are matters in which you cannot make a prior assumption. One has to look into the facts of each case and then the courts will decide on the facts of that case. It was also argued that the Constitution of India has made a marked distinction between the expressions "office" and "seat" and that as and when reference is made to an Mp the expression used is "seat" and not "office" and that wherever the expression "office" is used its duties are also invariably mentioned. In this respect my attention was particularly drawn to Articles 59(1), 67, 75, 84, 93, 94 and 99 which run as under: "59. Conditions of President's office (1) The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President." ................ "67. Term of office of Vice-President The Vice- President shall hold office for a term of five years from the date on which he enters upon his office. Provided that - (a) ........ (b) A Vice-President may be removed from his office by a resolution of the Council of States passed by a majority of all the then members of the Council and agreed to by the House of the People; but no resolution for the purpose of this clause shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution: (c) a Vice President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office." ...................... "75. Other provisions as to Ministers (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President. (3) ..... (4) Before F a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) ............. (6) ........... "84. Qualification for membership of Parliament A person shall not be qualified to be chosen to fill a seat in Parliament unless he- (a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and ........... ........... ..................................... "93. The Speaker and Deputy Speaker of the House of the People The House of the People shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall choose another member to be Speaker or Deputy Speaker, as the case may be." "94. Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker A meer holding office as Speaker or Deputy Speaker of the House of the People- (a) shall vacate his office if he ceases to be a member of the House of the People; (b) may at any time, by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office, and (c) may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House. Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution; Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution." ........................................... "99. Oath or affirmation by members- Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."