Friends, are you aware that the lawmakers (MPs, MLAs) in our country have immunity from the law for their behavior on the floor of the house? This means whatever they speak or do physically on the floor of the house can not be questioned by any law. They can speak abuse, and give bad words to anyone, and no action can be taken against them. It is very strange that a lawmaker can become a lawbreaker on the floor of the house, but still gets immunity from the law.
An incident happened in the Kerala assembly on 13th March 2015, when the state finance minister was presenting the budget, some MLAs of the Opposition party Left Democratic Front (LDF), disrupted the presentation of the budget, climbed over Speaker’s dais and damaged furniture and other articles including Speaker’s chair, computer, mike, emergency lamp etc., causing a loss of Rs 2,20,000. After the Legislative Secretary reported the incident, a criminal case was registered against the six accused MLAs. The investigation was completed, the final report was submitted, and cognizance was taken by the Additional Chief Judicial Magistrate, Ernakulam.
It so happened that in 2018 LDF formed the government in Kerala, the Public Prosecutor filed an application seeking sanction to withdraw the cases against all the accused MLAs, but the Chief Judicial Magistrate, Trivandrum declined to give consent to this application. The case went to High Court (HC), where also petition was declined, and then the matter went to SC.
The matter was deliberated in the SC for a long time, the main point for deliberation was that under Article 194 of the constitution the MLAs have the immunity for the actions in the house, as the protest is the right of MLAs and if in that process something is damaged they are not liable for criminal action. But the SC observed:
“ The persons who have been named as the accused in 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 behavior set by criminal law. No member of an elected legislature can claim either a privilege or an immunity to stand above the sanctions of criminal law, which applies equally to all citizens. Privileges and immunities are not gateways to claim exemptions from general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”
After a lot of deliberations, SC found no merit in the appeal and held that the Chief Judicial Magistrate was justified in declining consent for the withdrawal of the prosecution.
Yesterday SC made an observation that the people holding public office, including ministers and elected representatives, are getting away with making disparaging remarks with no mechanism to check such behavior, it is an unwritten rule and part of our ‘ Constitution Culture’ that they must maintain restrain and not blabber something which hurts others’ sentiments. Elected representatives are making hate speeches and remarks, and it should be left to the Parliament to debate and decide, as self restrain is no longer maintained by those in public office.
In another case, the SC appointed senior advocate PS Patwalia as amicus curiae to assist it in examining whether an MP or MLA can claim immunity from criminal prosecution for taking bribes to make a speech or vote in the Assembly or Parliament. A five-judge constitution bench headed by Justice SA Nazeer, and having other justices BR Gavai, AS Bopanna, V Ramasubramanian, and BV Nagarathna, will hear the issue on 6th December 2022.
In 2019, a three-judge bench said this issue had wider implications, and referred to a five-judge bench. It will revisit its 24-year-old verdict in a sensational JMM bribery case on an appeal filed by Sita Soren, a JMM MLA. She is the daughter of Shibu Soren (Former MP and CM of Jharkhand) who was also involved in taking a bribe for voting in favour of PV Narsimha Rao’s government in no-confidence motion, in the judgment mentioned below
Here in this case, she had appealed against the Jharkhand HC order of 17th February 2014 refusing to quash a criminal case against her for allegedly taking bribe to vote for a particular candidate in the Rajya Sabha elections held in 2012. In her appeal she quoted the following ruling by the SC:
It so happened that, the SC, in its 1998 five-judge constitution bench verdict delivered in PV Narsimha Rao vs CBI case, had held that parliamentarians had immunity under Constitution against criminal prosecution for any speech made and vote cast inside the house.
There are many such type of cases involving elected representatives during last 7 decades, but all the time these people get away with constitutional immunity granted to them, and they think whatever they do in the house is above any criminal or civil law. It is a very good thing that the SC has come into picture, and hopefully in near future Parliament will have to pass the bill on this issue. In the recent times the behavior of many elected representatives on the floor of the house and even outside is highly deplorable. The language used by some elected representatives in the public is so bad that you feel ashamed and wonder how these people get elected to higher offices.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
16th November 2022