An analysis of the Cash for Votes scandal [UPA-BJP 2008]

in India - Constitutional Issues and questions

Submitted by: Submitted To:

Shubh Dixit Aakanksha Kumar

B.A. L.L.B Faculty of Law

Second Semester

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION

(JANUARY-MAY 2015)

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An analysis of the Cash for Votes scandal [UPA-BJP 2008] in India - Constitutional Issues and questions

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ACKNOWLEDGEMENT

On the completion of this project I find that there are many persons to whom I would like to express my gratitude, since without their help and co-operation the success of this educative endeavour would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and guide Ms. Aakanksha Kumar, Faculty of Constitutional Governance, who has been a constant source of encouragement and guidance throughout the course of this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out this work. Thanks are also due to all members of the Library staff for their help and assistance at all times.

I am also grateful to all my friends and colleagues for being helpful in their differences and for their constant support.

Shubh Dixit

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TABLE OF CONTENTS

ACKNOWLEDGEMENT.........................................................................................................3

TABLE OF CONTENTS...........................................................................................................4

RESEARCH METHODOLOGY...............................................................................................5

FACTS OF THE SCAM............................................................................................................6

ACCUSED.................................................................................................................................7

INVESTIGATION OF THE ALLEGATIONS.........................................................................7

CHARGE SHEETS....................................................................................................................8

CONSTITUTIONAL ISSUES.................................................................................................11

Bail is the rule and jail an exception....................................................................................11

Bribing the vote....................................................................................................................12

BIBLIOGRAPHY....................................................................................................................14

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RESEARCH METHODOLOGY

SUBJECT: Constitutional Governance II

TOPIC: An analysis of the Cash for Votes scandal [UPA-BJP 2008]

in India. Constitutional Issues and questions

The method of research opted by me to complete this project was doctrinal

research from primary and secondary sources. Major part of the project has

been researched Articles and newspaper reports available in web databases

on the topic by scholars on the subject.

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FACTS OF THE SCAM

On 21.07.2008 on the asking of Sh. Arun Jaitely, MP, Rajdeep  Sardesai, Editor in chief   of  

CNNIBN agreed to record evidence of 'horse trading' of MPs. Rajdeep  Sardesai 

instructed his correspondent Sidharth Gautam to get in touch with concerned MPs and film

the monetary transaction that may take place. Sidharth Gautam was instructed to contact

Sudheendra Kulkarni and both met at the night of 21.07.2008 at the resident of Sudheendra

Kulkarni. He introduced CNN IBN team to 3 BJP MPs- Ashok Argal, Faggan Singh Kulaste

and Mahabir Singh Bagora- and also Sohail Hindustani. Sohail told the CNN IBN team that a

meeting is fixed in Hotel LeMeridian with a senior congress leader. Two MPs were fitted

with cameras and they went into the hotel. Sometime later they come back and tell the CNN

IBN team that the meeting did not happen as the congress leader did not turn up. At midnight

the CNN IBN team reached Ashok Argal’s residence where Smajwadi Party leader Rewti

Raman Singh was to arrive. Cameras were installed in the room of the MPs house. Around

12.30 AM Rewti Raman Singh arrived and the conversation between the 3 MPs and Rewti

Singh was recorded. The 3 MPs then asked the CNN IBN team to return by 7 in the morning.

The team when came back at 7 AM, they were told that a meeting is fixed with Amar Singh

at his house. CNN IBN team then reached Amar Singh’s house, where a zen car, driven by

Hasmat Ali, with tinted glasses came. Sohail Hindustani was in that car. 30 minutes later the

car came out of Amar Singh’s house and reached Ashok Argal’s house. The 3 BJP MPs told

the CNN IBN team that Amar Singh had promised to send money via his secretary. Around

11 AM, Sanjeev Saxena came and delivered 1 crore rupees to the 3 BJP MPs. The video of

money being placed on the table was recorded by the camera.

On July 22nd,2008 three members of the Parliament, placed on the table of parliament

currency notes or the amount of Rs. 1 Crore, when the House was debating on Motion of

Confidence. It was claimed that the money offered to them was in connection with the voting.

Speaker of the House after discussions with the senior Parliamentarians asked the mentioned

MPs to put in a written complaint. Before the written complaint could be submitted, Rajdeep

Sardesai, Editor in Chief of CNN-IBN enclosed 5 video tapes and sent it to the Speaker.

Formal complaint dated 25th July 2008 addressed to the speaker was submitted by the three

MPs, alleging that they were sought to be bribed by the leaders of Congress and Samajwadi

Party to help the Government, by refraining from voting against confidence motion.

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ACCUSED

The accused of the scam were:

Sanjeev Saxena

Sohail Hindustani

Sudheendra Kulkarni

Amar Singh

Faggan Singh Kulaste

Mahabir Singh Bhagora

Ashok Argal

Rewati Raman Singh

INVESTIGATION OF THE ALLEGATIONS

For primary investigation, the Speaker of the Lok Sabha formed a Joint Parliamentary

Committee. This committee was headed by Shri V. Kishore Chandra S. Deo. The committee

in its report, the committee found Rewti Raman Singh, Amar Singh, Faggan Singh Kulaste,

Mahabir Singh Bhagora and Ashok Argal to be guilty of accepting money for voting in the

Parliament. They are subsequently charge sheeted.

The Committee recommended further probe into the roles of Sanjeev Saxena, Sohail

Hindustani and Sudheendra Kulkarni as their roles in the scam were unclear. The committee

was not sure if with the given set of facts, these three were actually involved in the planning

or were just people who were transferring money and people from one point to another. 1

1 Report of Joint Parliamentary Committee Para 141 (XIV to XVII).

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A plea was made for an SIT by India Rejuvenation Initiative. They moved the Supreme Court

saying that the Delhi Police has not made any arrests in the case. The Supreme Court granted

the Delhi Police a time of 2 months to make arrests and charge sheet the accused. 2

Few days later, arrests were made of the accused.

CHARGE SHEETS

Faggan Singh Kulaste and Mahabir Singh Bhagora were booked under section 7 and 13(i)

(d) of the Prevention of Corruption Act 1988.

Section 7 of Prevention of Corruption Act:

“Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept

or attempts to obtain from any person, for himself or for any other person, any gratification

whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do

any official act or for showing or forbearing to show, in the exercise of his official functions,

favor or disfavor to any person or for rendering or attempting to render any service or

disservice to any person, with the Central Government or any State Government or

Parliament or the Legislature of any State or with any local authority, corporation or

Government company referred to in clause (c) of section 2, or with any public servant,

whether named or otherwise, shall be punishable with imprisonment which shall be not less

than six months but which may extend to five years and shall also be liable to fine.”

Section 13 (i) (d) of Prevention of Corruption Act:

“A public servant is said to commit the offence of criminal misconduct,-

 if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any

valuable thing or pecuniary advantage; or

2 http://www.thehindu.com/news/national/plea-for-sit-probe-into-cashforvotes-scam/article1688991.ece, Last Visited on 12 February, 2015.

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(ii) by abusing his position as a public servant, obtains for himself or for any other

person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing

or pecuniary advantage without any public interest;”

Sanjeev Saxena, Sudheendra Kulkarni and Amar Singh were booked under Section 12 of

Prevention of Corruption Act 1988 and Section 120B of Indian Penal Code.

Section 12 of Prevention of Corruption Act 1988:

“Whoever abets any offence punishable under section 7 or section 11 whether or not that

offence is committed in consequence of that abetment, shall be punishable with imprisonment

for a term which shall be not less than six months but which may extend to five years and

shall also be liable to fine”

[Section 11 of Prevention of Corruption Act talks about Public servant obtaining valuable

thing, without consideration from person concerned in proceeding or business transacted by

such public servant]

Section 120B of Indian Penal Code:

1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,

imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall,

where no express provision is made in this Code for the punishment of such a conspiracy, be

punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit

an offence punishable as aforesaid shall be punished with imprisonment of either description

for a term not exceeding six months, or with fine or with both.

Sohail Hinduatani was booked under Section 8 and 12 of Prevention of Corruption Act

1988 and Section 120B of the Indian Penal Code 1860.

Section 8 of the Prevention of Corruption Act 1988:

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“Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for

himself or for any other person, any gratification whatever as a motive or reward for

inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do

or to forbear to do any official act, or in the exercise of the official functions of such public

servant to show favor or disfavor to any person, or to render or attempt to render any service

or disservice to any person with the Central Government or any State Government or

Parliament or the Legislature of any State or with any local authority, corporation or

Government company referred to in clause (c) of section 2, or with any public servant,

whether named or otherwise, shall be punishable with imprisonment for a term which shall

be not less than six months but which may extend to five years and shall also be liable to

fine.”

[Section 12 of the Prevention of Corruption Act 1988 and Section 120B of The Indian Penal

Code 1860 are mentioned above]

Rewati Raman Singh was booked under Section 120B of the Indian Penal Code 1860 and

Section 7,8,12 and 13 (1) (d) of the Prevention of Corruption Act 1988.3

[Sections are mentioned above]

Ashok Argal was not charge sheeted.

3 Rewati Raman Singh v. State 2012(127)DRJ176

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CONSTITUTIONAL ISSUES

Bail is the rule and jail an exception

Delhi High Court granted bail to Sudheendra Kulkarni, Faggan Singh Kulaste Mahabir Singh

Bhagora, and Ashok Argal on November 16.4

The court in its obiter stated that “bail is the rule and jail an exception”.5 It is being debated

now if rejection of bail violates the fundamental right to life and personal liberty guaranteed

under Article 21 of the Constitution. On November 15, the Supreme Court agreed to examine

the larger issue of denial of bail in high-profile cases. A bench of Justices Altamas Kabir, S.S.

Nijjar and Jasti Chelameswar accepted the plea of senior counsel Ranjit Kumar and Mukul

Rohtagi questioning whether trial courts and high courts could deny bail in such cases simply

on the ground of "gravity of offence". The bench agreed to hear the larger issue of bail on

January 18, 2012.

Kumar pointed out that of late, trial courts had not been granting bail in high-profile cases,

some of which "are media-driven" and "judges are afraid of the confidential reports needed

for promotion''. With Rohtagi, Kumar was appearing for Ashok K. Sinha, an associate of the

former Jharkhand chief minister Madhu Koda, detained for offences under the Prevention of

Money Laundering Act and the Indian Penal Code.

Kumar argued that his client had been in jail for more than two years, whereas the minimum

sentence for the alleged offence was three years and the maximum, seven years. In Sinha's

case, though the chargesheet against him had been filed more than a year ago, the trial was

yet to start and he had been denied bail. "A serious situation has arisen as a result of denial of

bail to the accused, who also have fundamental rights,'' Kumar said, adding that it was time

that the Supreme Court clearly laid down the law "so that rights of the accused are not

trampled upon''.

Though senior advocate Raju Ramachandran feels that it is "premature'' to say that the mood

of the judiciary is changing towards bail, his colleague K.T.S. Tulsi says that "it is definitely

the beginning of a correction''. According to Tulsi, not granting bail is an aberration which 4 http://indiatoday.intoday.in/story/cash-for-votes-scam-kulkarni-argal-out-on-bail-sc-to-question/1/160600.html5 2011IXAD(Delhi)629

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has to be corrected. "It has derailed the process of justice,'' he adds. Asked whether the 2G

spectrum scam accused should get their hopes up, he says that until the Supreme Court gives

its judgment on bail, the lower courts are not likely to oblige.

A Supreme Court bench of Justices G.S. Singhvi and H.L. Dattu had on November 1 reserved

its order on the bail plea of five 2G scam accused, including Unitech Managing Director

Sanjay Chandra, DB Realty Managing director Vinod Goenka as well as Reliance executives

Hari Nair, Gautam Doshi and Surendra Pipara.6

Bribing the vote

The other privilege expressly conferred by Article 105(2) of the Constitution is the one

relating to the vote by a member in the House. The ramification of having a complete

immunity from court proceedings in respect of the vote in Parliament was felt in JMM case 7.

The Supreme Court was called upon to decide if the constitutional immunity could be applied

to the case of an alleged bribe given to members for exercising their vote in Parliament. The

Court by majority held that the member, the alleged bribe-taker, could not be proceeded

against. But, the bribe-giver and a member, who had not voted but had merely abstained,

were found disentitled to any immunity. The majority were quite unhappy that they had to

come to the conclusion that they did:

”137. We are acutely conscious of the seriousness of the offence that the alleged bribe-takers

are said to have committed. If true, they bartered a most solemn trust committed to them by

those they represented. By reason of the lucre that they received, they enabled a Government

to survive. Even so, they are entitled to the protection that the Constitution plainly affords

them. Our sense of indignation should not lead us to construe the Constitution narrowly,

impairing the guarantee to effective parliamentary participation and debate.”

Both, the minority and the majority judgments in the case indicate the march of the law in

various countries and the attempts to cut down on the immunity. In particular, reference is

found to the Report of the Royal Commission on Standards in Public Life (chaired by Lord

Salmon) which has stated that "neither the statutory nor the common law applies to the

bribery or attempted bribery of a Member of Parliament in respect of his parliamentary

6 http://indiatoday.intoday.in/story/cash-for-votes-scam-kulkarni-argal-out-on-bail-sc-to-question/1/160600.html7 P.V. Narasimha Rao v. State, (1998) 4 SCC 626

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activities" but "corrupt transactions involving a Member of Parliament in respect of matters

that has nothing to do with the parliamentary activities would be caught by the ordinary

criminal law". The report also notes that investigation into such matters could be too

complex, would require special expertise and be beyond the investigative capacities of the

House. A Parliamentary Commissioner for Standards appointed by the Select Committee of

Standards and Privileges can and does go into the propriety of a member's conduct and deals

with allegations of corrupt payment to members. But, the courts in England still believe that

the ordinary criminal courts are best equipped to deal with bribery cases.8

Perhaps, one limitation on the privilege to vote can be found in the Constitution (Fifty-second

Amendment) Act, 1985 and the anti-defection rules framed thereunder. The disobedience of

the party whip could lead to disqualification of a member. It applies only to voting and not to

any other right of a member like his privilege regarding speech.9

8 (2006) 2 SCC (Jour) 19 Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.) p. 100

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BIBLIOGRAPHY

Books:

Prevention of Corruption Act 1988

Indian Penal Code 1860

The Constitution Of India

Case Laws:

Amar Singh v. State and ors. 2011IXAD(Delhi)305

Ashok Argal v. State 2011IXAD(Delhi)629

Rewati Raman Singh v. State 2012(127)DRJ176

V. Narasimha Rao v. State, (1998) 4 SCC 626

Articles:

Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.)

Parliamentary Privilege: Complementary Role Of The Institutions (2006) 2 SCC

(Jour) 1

Weblinks:

www.thehindu.com

www.indiatoday.in

Reports:

Report of Joint Parliamentary Committee Para 141 (XIV to XVII)

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