No immunity to MLAs, MPs from criminal law: SC rejects Kerala govt plea

Legislators do not have immunity from criminal law for acts of vandalism or destruction of public property inside state assemblies or in parliament, the Supreme Court ruled on Wednesday, clearing the decks for the prosecution of some of Kerala’s sitting and former MLAs who threw furniture and destroyed computers and microphones during a House proceeding in 2015.

It also said that in this case, there is no need for the sanction of the speaker of the assembly to prosecute the legislators.

The bench of justices Dhananjaya Y Chandrachud and MR Shah underlined that privileges and immunities to the legislators under the Constitution “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.”

It held that any attempt to claim an exemption from the application of criminal law would be betraying the trust impressed on the character of elected representatives as the makers and enactors of the 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,” said the bench, rejecting a plea by the Kerala government to let it drop the criminal charges against two sitting and four former MLAs.

The Kerala government, through senior advocate Ranjit Kumar, sought to protect the six accused, who were MLAs of the Left Democratic Front (the opposition then) at the time of the incident in March 2015, by citing immunity granted to the members of the House under Article 194(1) of the Constitution and their right to protest. Senior advocate Jaideep Gupta appeared for some of the accused as he defended the state government’s decision to withdraw the prosecution. The lawyers asked for setting aside a Kerala high court judgment of March and let off the six accused , KT Jaleel, V Sivankutty, CK Sadasivan, EP Jayarajan, K Ajith and Kunjammadu Master.

But the bench rejected their submissions, emphasising that the privileges and immunity given to legislators inside the House was to create an environment in which they could perform their functions and discharge their duties freely and cannot be construed as a mark of status that made legislators stand on an unequal pedestal.

“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,” said the court.

Soon after the apex court’s order, the opposition parties in Kerala stepped up pressure for the resignation of state education minister V Sivankutty, who is one of the six accused.

However, the ruling party defended the minister, saying he will face the trial as the apex court did not get into the merit of the case. “It is not the final verdict. All accused will face the trial,” said CPI(M) acting secretary A Vijayaraghavan.

It added: “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 court cited previous judgments of the Supreme Court to underscore that privileges to legislators under Articles 105 (for MPs) and 194 would be confined to only such privileges essential for undertaking their legislative functions such as discussions, debates, resolutions and voting.

“Acts of destruction of public property are not privileged under the first limb of Article 194(2). Consequently, acts of vandalism cannot be said to be manifestations of the freedom of speech and be termed as ‘proceedings’ of the assembly,” it noted.

Shooting down the Kerala government’s argument on protest inside the House being a manifestation of free speech, the court said: “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.”

Committing acts of destruction of public property, said the bench, could not be equated with either the freedom of speech in the legislature or with forms of protest legitimately available to the members of the opposition.

“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,” it held.

The bench also highlighted that permitting withdrawal of prosecution would only result in a singular result; that the elected representatives were exempt from the mandate of criminal law and this could not be countenanced as being in aid of the broad ends of public justice.

It said that the recognition that there shall be freedom of speech in parliament and the state legislatures were as much a matter of duty and trust as they were of a right inhering in the representatives, who got chosen by the people.

The court affirmed the decisions of the judicial magistrate and the Kerala high court in dismissing the plea for withdrawal of prosecution against the six accused, saying the prosecution’s application was based on a “misconception that elected members of the legislature stand above the general application of criminal law.”

It has also held that there was no requirement of a sanction by the Speaker of the House for prosecuting the legislators since Kerala had enacted no provisions warranting the prior sanction of the Speaker. The court further said that no immunity could be claimed against the video-recording of the alleged incident since the recording was not published by private TV channels under the authority of the House.

After the apex court’s verdict, the accused shall face charges under Sections 425 (mischief), 427 (mischief causing damage to property) and 447 (criminal trespass) of the IPC and under Section 3(1) of the Prevention of Damage of Public Property Act. The maximum punishment under these charges is five years in jail, besides a fine.

Senior advocate V Giri said, “With this judgment there is clarity now that members of legislatures will have to face the law for committing criminal acts inside the House. The Court has held that Legislature is a public place and assaulting the Speaker, destroying public property are plain offences, against which no state can withdraw prosecution. MPs and MLAs have other ways to show protest by raising slogans and staging walkout and the judgment makes it clear that any act of vandalism will not go unpunished.”

(Ramesh Babu in Thiruvananthapuram contributed to this story)