There have been many incidents where the elected representatives behave very badly in the house, (they can be councillors, MLAs or MPs) in ordinary cases these types of vandalism may be termed as a criminal offence. But nothing happens to these people as they have privileges of doing anything in the house and they have immunity for the same, as fae as criminal law is concerned, but it is going to change now.
SC Yesterday, while dismissing Kerala govt’s challenging the12th March 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 the 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 immunity to stand above the sanctions of the criminal law, which applies equally to all citizens”, said a bench of 2 judges.
The further added 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 purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear and favour”.
The judges also said 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”.
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.
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.”
See the mockery of the procedures in this case, the Left Democratic Front (LDF) was in opposition when this case started against their 6 MLAs, but now they are back in power in Kerala they want the cases against the MLAs should be withdrawn citing privileges and immunity. Now all the court ie Trial Court, High court and Supreme Court have rejected their application of withdrawing the criminal cases, it means that the 6 politicians will have to face the criminal charges in the court. It has already taken more than 6 years to come to this stage, I do not know whether those 6 are MLAs in the present assembly or not. But with the present judicial process of the country, it will take years to come to final conclusion in this case. First, there will be the trial court, if they get punished by the trial court then they will appeal to HC and then SC.
You will recall it was more than 2 decades in the case of Lalu Prasad, who was guilty in a fodder scam, to get the punishment.
But one thing is certain now, the elected representative will have to be careful about their actions on the floor of the house.
Waiting for your views and comments.
Anil Malik
Mumbai,India
29th July 2021