Whether MLAs Are Public Servants
There are two categories of public servants recognised in law:
ย One was under the Prevention of Corruption Act, 1947, which provided that the public servant shall be same as defined in Section 21 of the IPC. Section 21 IPC, as originally enacted, contained 10 categories of public servants. The eleventh category was added in the year 1920 and twelfth in the year 1964.
When the Prevention of Corruption Act, 1947 was repealed by the enactment of Prevention of Corruption Act, 1988, Section 2(c), which defines public servant, contains 12 categories.
Supreme Court in R.S. Nayak Vs. A.R. Antulay, . That was a case where it was alleged that a former Chief Minister had committed offences under Sections 161 and 165 IPC and Section 5 of the Prevention of Corruption Act, 1947 (in short the ‘PC Act’) while holding the office of Chief Minister. Question arose as to whether sanction for prosecution of such a person was required, who had ceased to hold the office of Chief Minister, though he was still a sitting MLA. The Constitution Bench answered the question in the negative. The Court was of the opinion that the accused must continue to be a public servant on the date of taking cognizance of the offence by the Court and not on the date of commission of the offence. It was, thus, not disputed that as Chief Minister is a public servant, but since he no more remained Chief Minister on the date cognizance of offence was taken by the Court, sanction u/s 6 of the PC Act, 1947 or u/s 197 Cr.P.C. was not required. It is not necessary for us to take note of detailed reasoning give by the Constitution Bench on this aspect. We are concerned with alternate argument raised therein, namely, whether MLA was public servant, as the respondent in the said case was still an MLA.
The Constitution Bench expressly excluded MLAs from the category of public servant under the IPC, inter alia, on the ground that they are not paid by the Executive Government for any duty at its behest. The Court did not buy the argument that MLAs have other obligations under the Constitution or to electorate which could make their duty within the meaning of Section 21(12) IPC. The argument that MLAs get remuneration also did not cut ice with the Constitution Bench, which opined that remuneration within the meaning of Section 21(12)(a) IPC must be the remuneration by the Executive Government for duties carried out at its behest and direction and the MLAs get their salary under an Act of the legislature as MPs do under an Act of Parliament. In the process the Court also held that the legislature is not ‘Government’ within the meaning of Section 20(12) IPC. Payment of salaries to MLAs or even the Ministers, under a law passed and grant voted by the legislature is payment at the legislature’s command and not payment by the Executive Government, who may be the disbursing authority. In respect of Ministers, they were held to be public servants not because of the mode of their payment but because they discharge duties prescribed by the State Government’s Rules of Business allocated by the Governor to whom they report and, Therefore, they are treated to be in the service of the Government. For this, the Court referred to the earlier Constitution Bench judgment in M. Karunanidhi Vs. Union of India and Another, , wherein it was held:
Three facts, therefore, have been proved beyond doubt:
1. That a Minister is appointed or dismissed by the Governor and is, Therefore, subordinate to him whatever be the nature and status of his constitutional functions.
2. That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him.
3. That the said salary is paid to the Chief Minister or the Minister from the Government funds. It is thus incontrovertible that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is co-terminus with his office and is not paid tike other constitutional functionaries such as the President and the Speaker. These facts, Therefore, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, Therefore, a public servant within the meaning of Section 21(12) of the Penal Code.
The aforesaid submission of Antulay’s ratio finds its voice in the detailed discussion contained in para 29 onward while answering question (d), formulated as under:
(d) Is MLA a public servant within the meaning of expression in Section 21(12)(a) IPC?
It is useful to take note of the arguments of the respondent therein on the basis of which, attempt was made to demonstrate that MLA would be a public servant, though unsuccessfully. Following portion of para 30 of the judgment is quoted for this purpose:
30. It was conceded before the learned Special Judge and not retracted before us that the case of the accused does not fall in the first limb, i.e. the accused as MLA could not be said to be in the service of the Government. The contention is that the accused while receiving his salary as MLA under the Maharashtra Legislature Members’ Salaries and Allowances Act, 1956 was and is in the pay of the Government. The second limb of the submission was that even if the pay which the accused received as MLA under the relevant Act would not make the accused a person in the pay of the Government which the accused would receive for performance of public duty from the Government. It was contended on behalf of the complainant that the expression ‘in the pay of the Government, would, in the context in which the expression is used in Section 21(12)(a), mean unless there is relationship of master and servant and command and obedience between the payer and the payee, mere payment even if styled as pay would not mean that the payee is in the pay of the payer. Proceeding along it was submitted that MLA could not be said to be subject to obedience of any command by the Government, and therefore, the accused as MLA could not be said to be ‘in the pay of the Government.’ And as regards the third limb, it was urged that the accused as MLA was not performing any public duty for the performance of which he was remunerated by the Government. Additionally, it was urged that the expression ‘Government’ in Clause (12)(a) must receive the same meaning assigned to it in Section 17 IPC meaning thereby that it denotes the Central Government or the Government of a State as the context requires. It was urged that in that sense the expression ‘Government’ in Clause 12(a) would mean ‘Executive Government’ and it would be adding insult to injury if it can ever be said that MLA is in the pay of the Executive Government or State Government.
In para 44 of the said judgment, the Court enumerated three categories of persons, who would be public servants, i.e. (i) he is in the service of the Government; or (ii) he is in the pay of the Government; or (iii) he is remunerated by fees or commission for the performance of any public duty by the Government. It was conceded that an MLA is not in the service of the Government and, Therefore, would not be covered by first category enlisted above. The Court, thus, considered in detail the question as to whether an MLA would be ‘in the pay of the Government’. Both the expressions, namely, ‘in the pay of’ and ‘Government’ occurring in this category received detailed analysis at the hands of the Constitution Bench. Article 195 of the Constitution provides that ‘Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined by the Legislature of the State…..’
This is the enabling provision under which various legislatures have enacted laws entitling the Members to receive salaries and allowances. Therefore, it was not disputed that a MLA receives his salary and allowances in his capacity as a MLA. The question was as to whether it would make him a person ‘in the pay of the Government’. The Court noted that this expression had received attention by the earlier Constitution Bench of the Supreme Court in M. Karunanidhi (supra) wherein the Court had opined that the Chief Minister would be public servant as comprehended in Clause (a) of sub-section (12) of Section 21. After detailed analysis of M. Karunanidhi’s case (supra), the Court concluded that no argument was advanced bearing on the interpretation of the expression ‘Government’ in the said clause. It was assumed that salary and allowances paid to the Chief Minister are by the Government. Therefore, it was necessary to examine as to whether salary and allowances received by the MLA would be covered by the expression ‘in the pay of the Government.’ According to the Bench, the expression ‘Government’ denotes either the Central Government or the Government of the State as per Section 17 of the IPC. Since the case related to MLA of a State Legislature, the Court was of the opinion that the issue which needed attention was: ‘Whether MLA is in the pay of the Government in the State or is remunerated by the fees for the performance of any public duty by the Government of a State’
The Court explained the principle of separation of powers in the three wings of the Government, namely, Executive, Legislature and Judiciary in a democratic set up and under the scheme of Indian Constitution and answered the question by observing that MLA was not in the pay of State Government because Legislature of a State cannot be comprehended in the expression ‘State Government.’ This conclusion is contained in para 56 of the judgment, which is reproduced below:
56. To the same effect is a decision of the J and K High Court in the case of Bakshi Ghulam Mohd. v. G.M. Sadiq and Ors. AIR 1968 J&K 98 where Anant Singh, J. observed as follows (at p. 102):
A Minister of a State is paid from its public exchequer, and he is paid for doing public duty and, in my opinion, a Minister is a ‘public officer’ within the meaning of Section 80 as defined in Section 2(17)(h) of the Civil Procedure Code.
Supreme Court in Ramesh Balkrishna Kulkarni Vs. State of Maharashtra, and the Court held: ‘A public servant is an authority who must be appointed by Government or a semi-governmental body and should be in the pay or salary of the same. Secondly, a public servant is to discharge his duties in accordance with the rules and regulations by the Government.’ It may also be necessary to take note of another judgment of the Supreme Court in the case of K. Veeraswami Vs. Union of India (UOI) and Others, where the question was as to whether a Judge of the High Court could be prosecuted under the PC Act. In that case the Court was concerned with Clause (3) of Section 21 and not Clause 12. The question of sanction also arose in the context of Section 6 of the PC Act and not Section 197 Cr.P.C. Holding that sanction u/s 6 was a pre-condition, the question which fell for determination was as to who would be the sanctioning authority. The Court opined that it should be the Chief Justice. Thus, when sanction was a pre- condition and sanctioning authority was not specifically mentioned, the Court dealt with this issue to fill this gap. That judgment, though cited by the learned Counsel for the petitioner to advance his case, would not be relevant once the context in which the issue was decided is seen, as examined above. However, what is important for us is that the Supreme Court did not read the requirement of sanction into the law where none existed. It merely identified the authority in the light of an omnibus provision of Section 6(1)(c) of the PC Act, which existed.
36. The PC Act, 1947 was replaced by the Act of 1988. The definition of public servant has been expanded. Another important feature, which needs mention, is that the new Act, 1988 repealed most of Chapter IX IPC. The corruption offences, namely, offences by public servants u/s 161-165 were repealed and specific provision made in the PC Act, 1988. After analysing the scheme of the new Act, it can be stated that there was a complete departure from IPC and PC Act. This distinction was first noticed by this Court in L.K. Advani Vs. Central Bureau of Investigation, . The Court noted that the objects of two Acts, namely, IPC and PC Act were different and refused to take the IPC definition in view of the definition that was provided by the PC Act, 1988. This view was upheld by the Supreme Court in appeal. Question came up for consideration before the Supreme Court once again in P.V. Narsimha Rao Vs. State (CBI/SPE), . The Court held that for the purpose of Prevention of Corruption Act, 1988, a Member of Parliament would be a ‘public servant’. In view of extended definition of ‘public servant’ therein and with the introduction of Section 2(b), which defines ‘public duty’. Section 2(c)(viii) of the PC Act, 1988, covers MPs as well. Thus, a person may be public servant for the purpose of PC Act, 1988 having regard to the aforesaid judgment and the provisions of the Act, but he would not be ‘public servant’ for the purpose of IPC, i.e. u/s 21 IPC having regard to Antulay’s case (supra). This is clear from the following observations of the Supreme Court in P.V. Narasimha Rao’s case (supra):
There can be no doubt that the coverage of Section 2(c) of the said Act is far wider than that of Section 21 of the Indian Penal Code. The two provisions have only to be looked at side by side to be sure that more people can now be called public servants for the purposes of the anti-corruption law…..Having regard to the fact that there was no clause in Section 21 of the Indian Penal Code which is comparable to Section 2(c)(viii) of the said Act, the decision in Antulay case is of little assistance in this context.
