Constable, MP, And Authority That Doesn't Exist

On 16 October the Supreme Court dismissed a Rajasthan police constable's appeal in Tejaram v. State of Rajasthan. He had been charged under Section 7 of the Prevention of Corruption Act, 1988 for demanding ₹1.5 lakh against which he raised two objections. Did the police need prior approval under Section 17A before investigating him? No. Demanding a bribe, Justice N.V. Anjaria wrote, is “a pure criminal act unconnected to discharge of the official functions or duties.” Had the sanction under Section 19 come too late? It came before cognizance, so any delay was at most an irregularity.

Two questions, two clean answers.

Now change one fact. Put a Member of Parliament in the dock, and make the money a payment to vote a certain way in the House. The first answer survives. However, the second one disappears.

Take Section 17A first. Tejaram reads it in a very tight and intricate manner. The offence must be relatable to a recommendation or decision, and that recommendation or decision must be taken in discharge of official functions. Without both elements the section “cannot be viewed to have an omnibus application.” The Court also refused to wait for a larger Bench to rule on the provision's validity, after January's split verdict in Centre for Public Interest Litigation v. Union of India. Where Section 17A doesn't apply on its own terms, the case “could be decided without awaiting the reference.”

Now lay that beside Sita Soren v. Union of India. In 2024, the Apex Court consisting of seven judges held that a legislator who takes a bribe “commits a crime which is not essential to the casting of the vote,” and that the offence “crystallizes on the exchange of illegal gratification.” If a constable's demand has nothing to do with his official functions, a legislator's price for his vote can hardly be different. On Tejaram's reasoning, Section 17A has no work to do in a case of legislative bribery.

One lock off.

A signature box nobody can sign

The second lock is much stiffer. Section 19 bars a court from taking cognizance without previous sanction. For a legislator, who is an elected representative, the clause that applies asks for “the authority competent to remove him from his office.”

Suppose you are the investigating officer. For the constable, that is the officer who can dismiss him. For the MP or an MLA, there isn't one. His seat falls vacant by operation of law once he is disqualified. Under Articles 103 and 192, the President or the Governor is empowered to decide a disputed question of disqualification, and settling a dispute isn't removing anyone. What about the House, which can expel him? In P.V. Narasimha Rao v. State (1998), Justice Agrawal ruled that out too, relying on K. Veeraswami.

Section 19, in short, is a form with a mandatory signature box that, for one class of public servant, nobody is entitled to sign. The provision itself is valid; the Court upheld it in Manzoor Ali Khan (2015). The problem isn't constitutional. It's mechanical.

The sanction majority in Narasimha Rao, Justices Agrawal and Anand with Justice Ray, held that the gap doesn't take legislators outside the Act. It then improvised though the same was never placed on a legislative footing. The prosecuting agency had to obtain the permission of the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha before filing a charge-sheet.

Justice Agrawal took the idea from K. Veeraswami v. Union of India (1991). There the President sanctioned a judge's prosecution, but the Court required the Government to consult the Chief Justice of India first. He borrowed the model, though, and not the problem. In Veeraswami an authority existed and the Court added a safeguard. In 1998 there was no authority at all, so the safeguard became the whole gate.

He also made the gate temporary. It was to hold only “till provision is made by Parliament in that regard by suitable amendment in the law.” In State of Kerala v. K. Ajith (2021), the Court later noted that the direction was made “with specific reference to Section 19 of the PC Act.”

Sita Soren left all of this untouched. At paragraph 10, the Bench noted that Narasimha Rao had also decided “who is designated as the sanctioning authority,” then confined itself “solely” to the immunity question. That restraint was proper. It does leave an awkward result, though. The Court holds that the Court and the House “exist in distinct spheres,” yet an officer of the House still holds the key to the courtroom.

The answer Parliament already wrote

Here's the odd part. Parliament supplied the missing provision in 2013, and then switched it off.

Since 2014, Section 19(1) has required previous sanction “save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.” Follow those words. Section 14(1)(c) of the Lokpal Act covers “any person who is or has been a member of either House of Parliament.” Section 23(1) lets the Lokpal grant sanction “notwithstanding anything contained in … section 19 of the Prevention of Corruption Act, 1988”. Section 24, whose heading names members of Parliament, lets the Lokpal file the case in the Special Court and send its report to the Chairman or the Speaker. On this route, the Lokpal tells the presiding officer what it has done. It doesn't ask permission.

So why hasn't anyone used it? Section 14(2). The Lokpal can't inquire into anything said or any vote given in Parliament “covered under the provisions contained in clause (2) of article 105 of the Constitution.”

Read that slowly. The drafters didn't exclude speeches and votes as such. They excluded whatever clause (2) covers. The exception is a pointer, not a list, and a pointer moves when its target moves.

In 2013, with Narasimha Rao still good law, clause (2) covered bribery. So the carve-out swallowed exactly the conduct the new machinery was best placed to reach. Parliament built the engine and disconnected it in the same breath.

After Sita Soren, clause (2) no longer covers bribery. I think the better reading, then, is that Section 14(2) no longer reaches it either. If that is right, Justice Agrawal's condition has been met. Parliament has made provision, and therefore, his stopgap is no longer necessary to the extent that the new law addresses the issue.

As far as I can tell, no one has noticed. In CPIL, both opinions quote Section 14(2) in full. Neither mentions Sita Soren or Narasimha Rao.

Put side by side, the two cases look like this:

Limits, misuse, and what should follow

The argument has three limits. First, Section 23(3) of the Lokpal Act excludes those who hold constitutional office and whose removal procedure the Constitution specifies. A legislator meets the first condition but not the second, since the missing removal procedure is the whole problem. Still, the point is not settled. Second, Section 14 covers MPs only. MLAs depend on State Lokayukta laws, which differ, so the argument runs narrower for them, including for Sita Soren herself. Third, and most important, the Lokpal isn't the only way into a Special Court. When the CBI or the State police investigate in the usual way, Section 19(1)(c) applies on its own terms and the 1998 stopgap still governs.

Justice Nagarathna's opinion in CPIL suggests an objection. Courts cannot substitute the Lokpal for the authority Parliament named, she held, because that would be judicial legislation. Nothing needs substituting here. Section 19(1) yields to the Lokpal Act in its own words, and Section 23(1) overrides Section 19 by name. Justice Viswanathan's reasoning may even narrow the third limit. Why should the procedure differ, he asked, “merely for the reason that the information is not lodged as a complaint in the Lokpal”? His answer: “There is no good reason to hold so.”

What about misuse? Any gatekeeper can be misused, and the Lokpal is no exception. Its selection leans towards the government, and in a year without a recognised Leader of Opposition, the ruling side can effectively choose it alone. But the real question is which gatekeeper is harder to misuse. Today, a single presiding officer, usually from the ruling side, decides with no prescribed procedure, hearing or time limit. The Lokpal cannot act alone. A bench of at least three Members decides, and only after hearing the MP. The Act sets time limits for its inquiry, bars the transfer of an officer investigating its case without its approval, and makes a false complaint an offence. Above all, the Lokpal can look only at the money, never at the vote, because Section 14(2) still protects every genuine speech and vote. A Special Court judge still has the last word. For MLAs, much depends on how each State has framed its Lokayukta law.

Three things should follow. Parliament should amend Section 19(1) to name a sanctioning authority for legislators. A model has been gathering dust for more than two decades. The National Commission to Review the Working of the Constitution proposed a committee of five MPs, nominated by the President in consultation with the Speaker and the Chairman. The Centre should finally use the power it has held since 2018, under Section 29A(2)(b), to frame required sanction guidelines. That demand is already before the Kerala High Court in C.T. Muneer v. Union of India. The petition doesn't mention legislators. It should. And when the larger Bench hears the Section 17A reference, a word on Section 19 wouldn't go amiss. The two provisions share a drafting formula and its blind spot, and the Lokpal answers both.

In 1924, the Reforms Enquiry Committee recommended that the corrupt influencing of a legislator's vote be made a crime under the ordinary law. The Supreme Court finally agreed a hundred years later. Let's hope it doesn't take another twenty-eight to decide who signs the papers.

Author is an Advocate practicing at High Court of Kerala. Views are personal.