In a landmark judgment in State of Kerala v. K. Ajith [AIR 2021 SC 3954], the Supreme Court (SC) allowed the criminal proceedings against some former MLAs in Kerala to continue, and declared categorically that the privileges and immunities of an MLA do not protect them from the criminal offences they commit.
This write-up highlights the essential points of the judgment in easy-to-understand language.
Criminal Case on Vandalism in the Assembly
Six of the then lawmakers of Kerala became deliberate and determined lawbreakers at the time of the budget presentation in the Kerala Legislative Assembly in 2015.
The Members of Legislative Assembly (MLAs) belonging to the opposition party at the time disrupted the presentation of the budget, climbed onto the Speaker’s dais, and damaged furniture and articles including the Speaker’s chair, computer, microphone, 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 the ground that they were not covered by the immunity provided to MLAs under Article 194 of the Indian Constitution.
CJM Court Refused to Withdraw the Case
By the time the case reached the consideration of the court, the earlier opposition party had become the ruling party, and the government of Kerala filed a petition before the Chief Judicial Magistrate (CJM) Court to withdraw the criminal case in the public interest.
By an order dated 22 September 2020, the CJM had declined to give consent to withdraw the Public Prosecutor’s application, on the ground that immunity can be claimed by MLAs only in the 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 had no connection with their speech, 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 argued that an offence committed within 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, it was argued, require authorisation from the “competent authority” to investigate a breach of law occurring within the precincts of the Legislative Assembly.
The High Court of Kerala, by its judgment dated 12 March 2021, dismissed the criminal revision petition and affirmed the order of the CJM.
The High Court rejected the State’s argument that prosecuting the MLAs would lower the prestige of the Assembly and thereby impact the public interest.
The High Court further held that the conduct of the MLAs could not be deemed to further the functioning of a free democracy, and did not warrant invocation of the immunities and privileges granted to MLAs. It also held that there is no provision, either in the Constitution or in the Rules of Procedure and Conduct of Business of the Kerala Assembly, that requires the police to seek the Speaker’s permission or sanction before registering a crime against an MLA.
Kerala Filed an SLP in the Supreme Court
The Government of Kerala then filed an appeal, State of Kerala v. K. Ajith, in the Supreme Court, arguing that the actions of the respondent-accused were a manifestation of their right to protest, which is a facet of the freedom of speech and expression.
It argued that Article 194 of the Constitution provides that no proceedings shall be initiated in any court in respect of the exercise of freedom of speech by MLAs within the precincts of the Legislative Assembly. It was further argued that these actions took place during the budget presentation and bore a close nexus to the right to vote protected under Article 194 of the Constitution.
Opposing counsel argued that the exercise of freedom of speech by MLAs inside the House does not extend to a right to destroy property, and that the privileges under Article 194 cannot be used as a cover for violent conduct by members within the precincts of the Legislative Assembly.
Citing Lokayukta, Justice Ripusudan Dayal (Retired) and Ors. v. State of Madhya Pradesh & Ors, it was argued that a privilege can be granted only to the extent required to allow members to perform their functions without hindrance, and that a claim of privilege cannot be used as a shield to circumvent the application of criminal law. 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.
These Articles provide a shield against liability for the publication of any report, paper, votes, or proceedings by or under the authority of the House. Clause 3 of Article 194 provides that, in other respects, privileges and immunities are as defined by law — though no such law currently exists.
Legislative Functions v. Non-Legislative Functions
A three-judge Bench of the SC in Lokayukta, Justice Ripusudan Dayal (Retired) drew a distinction between the legislative and non-legislative functions of members of the House, for the purpose of determining the scope of privileges.
The SC observed that privileges are available only insofar as they are essential to enable members to carry out their legislative functions, and that the scope of privileges must be determined based on that need.
No Elected Member Can Stand Above the Law
The persons named as accused in the FIR held responsible elected offices as MLAs in the Legislative Assembly. Like any other citizen, they are subject to the boundaries of lawful conduct set by the criminal law.
No member of an elected legislature can claim a privilege or immunity to stand above the sanctions of criminal law, which applies equally to all citizens.
The purpose and object of the Prevention of Damage to Public Property Act, 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 — including a member of the opposition — has a right to protest on the floor of the legislature. This right is implicit in Article 105(1), as it applies to Parliament, and Article 194(1), as it applies to State Legislatures.
The first clauses of both Articles mandate that “there shall be freedom of speech” in Parliament and in the legislature of every State. However, the freedom of speech 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 “in any proceedings in any court” in respect of “anything said or any vote given” in the legislature or any of its committees.
Further, no person is liable in respect of the publication, by or under the authority of Parliament or of a House of a State Legislature, of any report, paper, votes, or proceedings.
Privilege for MLAs Is to Enable Legislative Functions
The purpose of granting privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear, or favour. This was emphasised by the three-judge Bench in Lokayukta, Justice Ripusudan Dayal (Retired).
The oath of office that members of Parliament and of State Legislatures must take 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.
The Constitution recognises privileges and immunities to create an environment in which members can perform their functions and discharge their duties freely. These privileges bear a functional relationship to the discharge of a legislator’s functions; they are not a mark of status placing legislators on an unequal pedestal.
Notably, while Article 19(1)(a) expressly recognises the right to freedom of speech and expression as vested in every citizen, Articles 105(1) and 194(1) instead state that “there shall be freedom of speech” in Parliament and in the Legislature of a State.
In essence, Article 19(1)(a) recognises an individual right to freedom of speech and expression vested in all citizens, whereas Articles 105(1) and 194(1) address freedom of speech within 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.
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 vested in representatives chosen by the people. One misses the point by focusing on rights without the corresponding duties of elected representatives.
Privilege Is Not a Claim to Exemption
Privileges and immunities are not gateways to exemption from the general law of the land — particularly, as in this case, the criminal law that governs the conduct of every citizen.
To claim exemption from the application of criminal law would betray the trust placed in elected representatives as the makers and enactors of the law.
Withdrawal of the Case Against the MLAs Was Based on a Misconception
The application for withdrawal under Section 321 was moved by the Public Prosecutor based on a fundamental misconception of the constitutional provisions in Article 194.
The Public Prosecutor appears to have been influenced by the existence of privileges and immunities believed to stand in the way of prosecution. Such an understanding misreads the constitutional provision and proceeds on the mistaken premise that elected members of the legislature stand above the general application of criminal law.
Content of the Privileges of MLAs
It was in Lokayukta, Justice Ripusudan Dayal (Retired) that a three-judge Bench of the SC laid down the law for identifying the content of these privileges, holding that members possess only such privileges as are essential to undertake their legislative functions.
The alleged act of destroying public property within the House, to register protest against the budget presentation, cannot be regarded as essential to the exercise of legislative functions. The MLAs’ actions are therefore not covered by the privileges guaranteed under the Constitution.
Members of the House have freedom of speech in the legislature, subject to the Constitution and other standing orders.
It was held in P.V. Narasimha Rao (supra) that the freedom of speech given to members of the House is absolute and independent of Article 19 of the Constitution, and that this freedom cannot be restricted by the reasonable restrictions under Article 19(2). Members of the House cannot be precluded from any discussion on the ground that it violates Article 19(2), except in relation to 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
Article 194(2) of the Constitution has two limbs.
The first limb grants members absolute immunity in respect of anything said or any vote given in the House, as a manifestation of the freedom of speech under Article 194(1).
The second limb grants members immunity in respect of the publication of “any report, paper, votes, or proceedings” by or under the authority of the House.
The immunity for “anything said or any vote given” under the first limb, and for the “publication of a report, paper, votes, or proceedings” under the second limb of Article 194(2), both flow from the freedom of speech provided under Article 194(1). Both manifestations of this freedom are expressly immunised.
The difference between the two limbs is that the first protects the exercise of the freedom itself, while the second protects the member against liability arising from the publication of that exercise.
Legal proceedings against the exercise of this freedom can be initiated only by those aware of it — either persons present in the House, or those who become aware of it once it is published.
While the freedoms protected by both limbs are substantively the same, the second limb is clarificatory: it prevents any person from initiating proceedings against the exercise of freedom of speech inside the House when they learn of it through a publication.
Thus, the immunity for the manifestations of freedom of speech protected under the second limb of Article 194(2) cannot exceed the freedom of speech protected under the first limb.
Accordingly, acts of destruction of public property are not privileged under the first limb of Article 194(2). Acts of vandalism cannot, therefore, be treated as manifestations of freedom of speech or as “proceedings” of the Assembly.
The Constitution does not extend “freedom of speech” to cover criminal acts carried out under the guise of protest. It grants members only the freedom of speech necessary for active, meaningful participation in deliberation, without fear of prosecution.
Moreover, the word “proceedings” in Article 194(2) follows the words “any report, paper, votes.” Reports, papers, and votes are actions undertaken by members of the Assembly in their official capacity, for participation and deliberation in the House — essential functions that a member must perform to discharge their duty to the public as an elected representative.
What an Authoritative Text on Parliamentary Proceedings Says
On the immunities and privileges of legislators, the classic text 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,” states 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 CJM Court’s refusal to withdraw the criminal case against the six former MLAs in Kerala for destroying property in the Legislative Assembly building in Thiruvananthapuram.
Additional Reading
- Practice and Procedure of Parliament by Kaul and Shakdher (7th Edition)
- SC judgment in State Of Kerala v. K. Ajith, 28 July 2021
- Kerala HC judgment in State Of Kerala v. K. Ajith, 12 March 2021
- V. Narasimha Rao v. State (CBI/SPE)
- Lokayukta, Justice Ripusudan Dayal (Retired) and Ors. v. State of Madhya Pradesh & Ors
