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Monday, September 20, 2021

Kerala Assembly ruckus: SC rejects state appeal for withdrawing case against LDF MLAs

The judgment reminded that “the purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions ...”.

By: Express News Service | New Delhi |
Updated: July 29, 2021 5:29:52 am
A bench of justices D Y Chandrachud and M R Shah observed that right to free speech and privileges of lawmakers do not extend them immunity against criminal law.

Legislative privileges available to the members of a House cannot extend to immunity from application of criminal law, the Supreme Court said Wednesday dismissing Kerala government’s challenging the March 12, 2021 order of the state High Court upholding a trial court decision to reject the request to withdraw the prosecution of six Left Democratic Front (LDF) MLA’s under IPC and Prevention of Damage to Public Property Act 1984 for alleged acts of vandalism inside the Assembly during budget presentation in March 2015.

“The persons who have been named as the accused in the FIR in the present case held a responsible elected office as MLAs in the Legislative Assembly. In the same manner as any other citizen, they are subject to the boundaries of lawful behaviour set by criminal law. No member of an elected legislature can claim either a privilege or an immunity to stand above the sanctions of the criminal law, which applies equally to all citizens”, a bench of Justices D Y Chandrachud and M R Shah said in its judgement.

Writing for the bench, Justice Chandrachud said that “privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen. To claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law”.

The judgement reminded that “the purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear or favour”.

It added that “the oath of office which members of Parliament and of the State Legislature have to subscribe requires them to (i) bear true faith and allegiance to the Constitution of India as by law established; (ii) uphold the sovereignty and integrity of India; and (iii) faithfully discharge the duty upon which they are about to enter. It is to create an environment in which they can perform their functions and discharge their duties freely that the Constitution recognizes privileges and immunities. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal”.

The state had tried to rely on the 1998 SC ruling in the P V Narasimha Rao vs State (CBI/SPE) etc (JMM bribery case) to contend that the action of the accused MLAs inside the House “was a form of ‘protest’ which bears a close nexus to the freedom of speech, and thus is covered by Article 194(2)”, but the court termed the argument “unsatisfactory”.

The SC pointed out that in the 2014 case, Lokayukta, Justice Ripusudan Dayal (Retired) and Ors. vs State of Madhya Pradesh & Ors., it was laid down that the members shall only possess such privileges that are essential for undertaking their legislative functions. “An alleged act of destruction of public property within the House by the members to lodge their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative functions. The actions of the members have trodden past the line of constitutional means, and is thus not covered by the privileges guaranteed under the Constitution”, the bench ruled.

Referring to arguments on freedom of speech and expression, the court said that while Article 19(1)(a) recognises an individual right to the freedom of speech and expression as vested in all citizens. Articles 105(1) and 194(1) speak about the freedom of speech in the Parliament and State Legislatures “and in that context must necessarily encompass the creation of an environment in which free speech can be exercised within their precincts”.

It added that the “recognition that there shall be freedom of speech in Parliament and the State Legislatures underlines the need to ensure the existence of conditions in which elected representatives can perform their duties and functions effectively. Those duties and functions are as much a matter of duty and trust as they are of a right inhering in the representatives who are chosen by the people. We miss the wood for the trees if we focus on rights without the corresponding duties cast upon elected public representatives”.

The bench ruled that “committing acts of destruction of public property cannot be equated with either the freedom of speech in the legislature or with forms of protest legitimately available to the members of the opposition” and that “to allow the prosecution to be withdrawn in the face of these allegations, in respect of which upon investigation a final report has been submitted under Section 173 of the CrPC and cognizance has been taken, would amount to an interference with the normal course of justice for illegitimate reasons. Such an action is clearly extraneous to the vindication of the law to which all organs of the executive are bound”.

The judgement said that “…acts of vandalism cannot be said to be manifestations of the freedom of speech and be termed as “proceedings” of the Assembly. It was not the intention of the drafters of the Constitution to extend the interpretation of ‘freedom of speech’ to include criminal acts by placing them under a veil of protest. Hence, the Constitution only grants the members the freedom of speech that is necessary for their active participation in meaningful deliberation without any fear of prosecution”.

The SC said that “members of the State Legislature have in their character as elected representatives a public trust impressed upon the discharge of their duties. Allowing the prosecution to be withdrawn would only result in a singular result, which is that the elected representatives are exempt from the mandate of criminal law. This cannot be countenanced as being in aid of the broad ends of public justice”.

It said that the Public Prosecutor’s application for withdrawal of prosecution “is based on a fundamental misconception of the constitutional provisions contained in Article 194” which deals with the Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof and that hat “such an understanding betrays the constitutional provision and proceeds on a misconception that elected members of the legislature stand above the general application of criminal law”.

The state also relied on the Rao judgement to contend that the prior sanction of the Speaker, as the presiding officer of the House, is necessary to initiate a prosecution against the members of the House for the commission of an offence inside the House but the court did not accept this.

“The observations of the Constitution Bench (in Rao case) regarding prior sanction were made with specific reference to Section 19 of the PC (Prevention of Corruption) Act and cannot be construed to imply a broader proposition of law that sanction is a prerequisite for initiating a prosecution against the members of the House, in this case of the Kerala Legislative Assembly for any offences committed within the House”, it said.

The court also rejected the argument that powers of the Speaker to control and regulate the House encompasses the power of sanction for initiation of proceedings against members of the Assembly saying the Speaker cannot have a carte blanche to decide if and when criminal proceedings should be initiated against MLAs.

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