No member of legislature can claim privilege to stand above sanctions of criminal law:SC; dismisses Kerala govt plea for withdrawal of case against 6 LDF leaders

The Supreme Court on Wednesday held that 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, adding acts of destruction of public property in the House cannot be equated with freedom of speech.

The top court said this as it dismissed a plea by the Left government in Kerala for withdrawal of the criminal case against the then six MLAs of the LDF over the opposition ruckus inside the state Assembly in 2015. The current Education minister V Sivankutty was among the MLAs who will now have to face trial.

“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,” the court said, holding that the actions of the legislators have trodden past the line of constitutional means, and is thus not covered by the privileges guaranteed under the Constitution.

It further said that privileges bestowed upon elected members of the legislature are not a “mark of status” which makes them stand on an unequal pedestal.

A bench of justices D Y Chandrachud and M R Shah said an alleged act of destruction of public property within the House by members to lodge their protest against presentation of budget cannot be regarded as “essential for exercising their legislative functions”.

The top court made the observations in its 74-page verdict on two separate appeals, including the one filed by the state against the Kerala High Court's March 12 order dismissing the plea for withdrawal of the criminal case in the matter.

It said allowing the prosecution to be withdrawn would only result in a singular result that elected representatives are exempt from the mandate of criminal law.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.'' The bench said it was not the intention of the drafters of the Constitution to extend interpretation of ‘freedom of speech’ to include criminal acts by placing them under a “veil of protest”.

The Kerala assembly had witnessed a huge ruckus on March 13, 2015 as the CPI(M)-led Left Democratic Front(LDF) MLAs tried to prevent the Congress-led United Democratic Front(UDF) finance minister K M Mani, who was facing allegations in the bar bribery scam, from presenting the state budget.

Besides flinging the speaker's chair from the podium, electronic equipment like computers, keyboards and mikes on the desk of the presiding officer were also allegedly damaged by the LDF members, causing an estimated loss of Rs 2.20 lakh.

A case was registered for the alleged offences under various sections of the Indian Penal Code (IPC), including 447 (criminal trespass), and under the provision of the Prevention of Damage to Public Property Act.

Armed with the Supreme Court ruling, the UDF mounted pressure on the Left coalition for the resignation of Minister Sivankutty, saying he has no moral right to continue in the post.

Rejecting the demand, Sivankutty, who was allegedly in the forefront of unprecedented violence unleashed by the opposition Left MLAs, said the agitation in the House was the decision of the LDF and they were implementing that decision on that day. He also said the apex court had not made any observation warranting his resignation.

Defending the minister, LDF convenor and CPI(M) acting secretary A Vijayaraghavan said the Supreme Court has not taken any form of legal action against the minister.

''There is a case (of ruckus). Trial of that case has not commenced yet'', Vijayaraghavan said.

Senior Congress leader Ramesh Chennithala, who waged the legal battle seeking trial of the MLAs involved in the ruckus, urged Chief Minister Pinarayi Vijayan to sack Sivankutty immediately in view of the court verdict.

In its plea filed against the the high court order, the Kerala government had claimed that the high court had failed to appreciate that the alleged incident had occurred while the Assembly was in session and no case could have been registered ''without previous sanction'' of the Speaker.

In its verdict, the top court noted that there has been a growing recognition and consensus both in the apex court and parliament that acts of destruction of public and private property in the name of protests should not be tolerated.

“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,” it said.

The bench, while referring to Articles 105 and 194 of the Constitution which deals with privileges and immunities of members of parliament and legislative assemblies, said the recognition that there shall be freedom of speech in parliament and state legislatures underlines the need to ensure the existence of conditions in which lawmakers 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.'' It said 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 law.

Referring to the case, the bench said the entire foundation upon which the application for withdrawal under section 321 of the CrPC was moved by public prosecutor is based on a “fundamental misconception” of constitutional provisions contained in Article 194.

It also rejected the contention that prosecution against the accused in the case is vitiated for want of sanction of the Speaker.

The bench also rejected the contentions regarding video recording of the incident, saying it was not a “proceeding” of the Assembly which would be protected from legal proceedings under Article 194(2) of the Constitution.

“As held above, that 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 said.

The state government had moved the high court against an order of the trial court which had dismissed an application filed by the public prosecutor seeking permission to withdraw prosecution against the accused in the case.