Introduction
In a landmark judgement in State of Kerala v K Ajith, the Supreme Court (SC) allowed to continue the criminal proceedings against some former MLAs in Kerala and declared categorically that the privileges and immunities of the MLA does not protect them from criminal offences in which they engage in.
This writeup highlights the essential points in the judgement in an easy-to-learn language.
Criminal case on vandalism in Assembly
Six of the then lawmakers of Kerala become deliberate and determined lawbreakers at the time of budget presentation in the Kerala Legislative Assembly in 2015.
The Members of Legislative Assembly (MLAs) belonging to the party in opposition then, disrupted the presentation of the budget, climbed over to the Speaker’s dais and damaged furniture and articles including the Speaker’s chair, computer, mike, emergency lamp and electronic panel, causing a loss of Rs. 2,20,093/-.
Police filed a criminal case against the six MLAs accused of vandalism and destruction of public property on finding that they shall not be covered under the immunity provided to them as the MLAs under the Article 194 of the Indian Constitution.
CJ M Court refused to withdraw the case
Later the then opposition party became the ruling party and the government in 2021 filed a petition in the Chief Judicial Magistrate (CJM) Court to withdraw the criminal case in the Court on public interest.
By an order dated 22 September 2020, the CJM declined to give consent to withdraw the application of the Prosecutor on the ground that the immunity can be claimed by MLAs only in exercise of free speech and voting as held by the SC in P.V. Narasimha Rao v State (CBI/SPE).
The alleged offence committed by the respondent-accused did not have any connection with their speech or vote or privilege.
Kerala HC dismissed the revision petition
The State of Kerala then filed a Criminal Revision Petition before the High Court. The government of Kerala pleaded that an offence which is committed in the Assembly, during a session or in its vicinity by MLAs, cannot be registered by the police without the permission of the Speaker. Police officers require authorization from the ‘competent authority’ to investigate a breach of law if it occurs in the precincts of the Legislative Assembly.
The High Court of Kerala, by its judgement dated 12 March 2021, dismissed the criminal revision petition and affirmed the order of the CJM.
The High Court rejected the argument of the State that prosecuting the MLAs will lower the prestige of the Assembly, and thereby impact public interest.
The high court added that the conduct of the MLAs cannot be deemed to be in furtherance of the functioning of a free democracy, and does not warrant the invocation of the immunities and privileges granted to MLAs. And there is no provision, either in the Constitution, or in the Rules of Procedure and Conduct of Business in the Kerala Assembly that mandates the police to seek permission or sanction of the Speaker before registering a crime against an MLA.
Kerala filed a SLP in the Supreme Court
Later the Government of Kerala filed in the Supreme Court an appeal State of Kerala v K Ajith, and argued that the actions of the respondent-accused are a manifestation of their right to protest which is a facet of the freedom of speech and expression. The Article 194 of the Constitution provides that no proceedings shall be initiated in the court for the exercise of the freedom of speech by MLAs inside the precincts of the Legislative Assembly. Moreover, these actions took place during the course of the budget presentation and bear a close nexus to the right to vote which is protected under Article 194 of the Constitution.
Others argued that the exercise of the freedom of speech by the MLAs inside the House does not embrace within it the right to destroy property. The privileges under Article 194 cannot be used as a cover for violent actions of members in the precincts of the legislative assembly
Citing the case Lokayukta, Justice Ripusudan Dayal (Retired) and Ors. v State of Madhya Pradesh & Ors it was argued that a privilege can only be provided to the extent required so as to allow the members to perform their functions without hindrance.
A claim of privilege cannot be used as a shield to circumvent the application of criminal law on them. No person enjoys a privilege against criminal prosecution.
Privileges of the members
Articles 105 and 194 of the Constitution provide in similar terms for the privileges and immunities of Members of Parliament and MLAs respectively.
The articles provide a shield against any liability for a publication of a report, paper, votes or proceedings by or under the authority of the House. The clause 3 of Article 194 provides that in other respects the privileges and immunities are such as defined by law. Now there is no law on the subject at present.
Legislative functions v non-legislative ones
A three judge Bench of the SC in Lokayukta, Justice Ripusudan Dayal (Retired) made a distinction between legislative functions and non-legislative functions of the members of the House, for determining the scope of the privileges.
In the case, the SC observed that privileges are available only as far as they are essential for the members to carry out their legislative functions and that the scope of the privileges must be determined based on the need for them.
No elected member can stand above the law
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.
The purpose and object of the Act of 1984 was to curb acts of vandalism and damage to public property including (but not limited to) destruction and damage caused during riots and public protests. A member of the legislature, the opposition included, has a right to protest on the floor of the legislature. The right to do so is implicit in Article 105(1) in its application to Parliament and Article 194(1) in its application to the State Legislatures.
The first clauses of both these Articles contain a mandate that “there shall be freedom of speech” in Parliament and in the legislature of every State. Nonetheless, the freedom of speech which is protected by the first clause is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the legislature.
The second clause provides immunity against liability “to any proceedings in any court” in respect of “anything said or any vote given” in the legislature or any committee.
Moreover, no person is to be liable in respect of the publication by or under the authority of Parliament or of the House of the State Legislature of any report, paper, votes or proceedings.
Privilege for MLAs is to enable legislative functions
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. This has been emphasized by the three judge Bench in Lokayukta, Justice Ripusudan Dayal.
The oath of office which members of Parliament and of the State Legislature have to subscribe requires them to
- bear true faith and allegiance to the Constitution of India as by law established;
- uphold the sovereignty and integrity of India; and
- faithfully discharge the duty upon which they are about to enter.
The Constitution recognizes privileges and immunities to create an environment in which they can perform their functions and discharge their duties freely. 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 is of significance that though Article 19(1)(a) expressly recognises the right to freedom of speech and expression as inhering in every citizen, both Articles 105(1) and 194(1) emphasise that “there shall be freedom of speech” in Parliament and in the Legislature of a State.
In essence, Article 19(1)(a) recognizes 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.
The freedom of speech in Parliament and the State Legislatures ensures 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 of elected representatives.
Privilege is not to claim exemptions
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.
Withdrawal of case against MLAs is on misconception
The application for withdrawal under Section 321 was moved by the Public Prosecutor based on a fundamental misconception of the constitutional provisions contained in Article 194.
The Public Prosecutor seems to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. 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.
Content of privileges of MLAs
It was in Lokayukta, Justice Ripusudan Dayal (Retired) that a three judge Bench of the SC laid down the law for the identification of the content of the privileges. It was held that the members shall only possess such privileges that are essential for undertaking their legislative functions.
The 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 MLAs are not covered by the privileges guaranteed under the Constitution.
The members of the House shall have freedom of speech in the legislature. The freedom of speech provided to the members is subject to the Constitution and other standing orders.
It was held in P.V. Narasimha Rao (supra) that the freedom of speech provided to the members of the House is absolute and independent of Article 19 of the Constitution, and that the freedom of speech of the members inside the House cannot be restricted by the reasonable restrictions provided in Article 19(2) of the Constitution. The members of the House cannot be precluded from undertaking any discussion on the grounds of violation of Article 19(2) of the Constitution, except anything on the conduct of a Judge of the Supreme Court or High Court in the discharge of their duties.
Two limbs of the privilege of MLAs
The Article 194(2) of the Constitution is divided into two limbs.
The first limb of Article 194(2) provides the members absolute immunity with respect of anything said or any vote given in the House is a manifestation of the freedom of speech provided under Article 194(1).
The second limb of Article 194(2) gives the members immunity in respect of the publication of ‘any report, paper, votes, or proceedings’ by or under the authority of the house.
The legal immunity to ‘anything said or any vote given’ in the first limb and the ‘publication of a report, paper, votes, or proceedings’ in the second limb of Article 194(2), flow from the freedom of speech that is provided under Article 194(1). The exercise of these manifestations of the freedom of speech – as provided in Article 194(2) – has been provided with express immunity.
However, the only difference between the two limbs of Article 194(2) is that the first limb protects the exercise of the freedom, and the second limb protects the member against the publication of the said exercise of the freedom.
The legal proceedings against the exercise of the freedom can only be initiated by those aware of the exercise of freedom, which would mean either those who are present in the House or those who become aware of it when the speech, vote or the like, is published.
While the freedoms protected by both the limbs are substantively the same, the second limb is clarificatory in the sense that it prevents ‘any person’ from initiating proceedings against the exercise of freedom of speech inside the House when they obtain knowledge of the exercise of the said freedom through a publication.
Thus, the immunity provided for the exercise of the manifestations of the freedom of speech in the second limb of under Article 194(2) cannot exceed the freedom of speech provided in the first limb of Article 194(2).
Therefore, the 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.
The Constitution does not extend the ‘freedom of speech’ to include criminal acts by placing them under a veil of protest. 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.
Moreover, the word ‘proceedings’ in Article 194(2) follows the words ‘any report, paper, votes’. Reports, papers and votes are actions that are undertaken by the members of the Assembly in their official capacity for participation and deliberation in the House. These are essential functions that a member has to perform in order to discharge her duty to the public as their elected representative.
Authentic book on Parliamentary Proceedings says
In regard to immunities and privileges of legislators the classic book titled, Practice and Procedure of Parliament by Kaul and Shakdher (7th Edition), in Chapter XII, under the sub-heading Proceedings in Parliament and the Criminal Law, says as follows:
“A criminal act committed by a member within the House cannot be regarded as a part of the proceedings of the House for purposes of protection. Thus, in the Maharashtra Legislative Assembly, when a member shouted at the operator to connect his mike to the loudspeaker, threw a paperweight in the direction of the loudspeaker-operator and rushed towards the Speaker and grabbed the mike in front of the Speaker, he was not only expelled from the House but was subsequently convicted under different sections of the Indian Penal Code and sentenced to rigorous imprisonment for six months.”
SC rejected the Kerala Government’s appeal
The SC rejected the appeal upholding the revision order of the high court and the C J M Court’s refusal to withdraw the criminal case against six former MLAs in Kerala for destroying properties in the Legislative Assembly building in Thiruvananthapuram.
Additional reading
- Practice and Procedure of Parliament by Kaul and Shakdher (7th Edition)
- SC judgement in State Of Kerala v K.Ajith on 28 July, 2021
- Kerala HC judgement in State Of Kerala v K.Ajith on 12 March, 2021
- P.V. Narasimha Rao v State (CBI/SPE)
- Lokayukta, Justice Ripusudan Dayal (Retired) and Ors. v State of Madhya Pradesh & Ors
