The Left Democratic Front (LDF) government in Kerala faced an embarrassing setback on July 28 when the Supreme Court ruled against its appeal to withdraw the criminal prosecution case against six former LDF legislators accused of destruction of property and vandalism in the State Assembly on March 13, 2015. The court ruled that the accused legislators must face trial, as two lower courts had ruled earlier.
The outcome of such an appeal by a government by claiming legislative privilege on behalf of the legislators concerned ought to have been an obvious one. Yet, the two LDF governments that have been in power in the State since 2016 have been appealing in various courts seeking the withdrawal of the prosecution case against the former MLAs. The Chief Judicial Magistrate’s Court (CJM) in Thiruvananthapuram, before which the case came up for hearing initially, rejected the government’s plea. So did the Kerala High Court, when the government approached it against the trial court’s order. The government then decided to move the Supreme Court. Some of the accused legislators too did so.
However, in its order on July 28, the Supreme Court bench of Justices D.Y. Chandrachud and M.R. Shah rejected the appeal to withdraw the prosecution case against the MLAs, saying not just that the trial must continue but, significantly, going further, and affirming that the actions of the accused legislators in the Assembly were indeed punishable offences. The court also stated unequivocally that “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”.
Protest in the Assembly
The controversial events occurred on March 13, 2015, during a protest in the Kerala Assembly by the LDF, which was then in the opposition, against Finance Minister (and Kerala Congress leader) K.M. Mani, who was presenting the Budget amidst corruption charges and allegations of his involvement in what came to be known as the ‘bar bribery case’.
The House witnessed chaotic scenes, with legislators going berserk, pushing and pulling one another, tucking up their dhotis, climbing over chairs and tables, pulling out mikes, computers and keyboards, running riot on the Speaker’s dais, throwing down the Speaker’s chair, and so on; a woman MLA from the LDF even bit a ruling Front colleague.
In its order, the Supreme Court noted that “the respondent-accused, who at the time were Members of the Legislative Assembly belonging to the party in opposition, disrupted the presentation of the Budget, climbed on 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”.
All major television channels aired live the happenings in the Assembly on Budget Day proceedings, and the visuals left no one in doubt about the nature of the case that the new LDF government that came in its wake was seeking to withdraw.
After the then Legislature Secretary informed the police about the happenings in the House that day, cases were registered against six LDF MLAs for offences punishable under Sections 447, 427 read with 34 of the Indian Penal Code (IPC) and Section 3(1) of the Prevention of Damage to Public Property Act. The MLAs were V. Sivankutty, who is now the State Education Minister; E.P. Jayarajan and K.T. Jaleel, who were Ministers in the previous LDF government; K. Sahadevan, K. Kunhammed and K. Ajith.
The bar bribery case and corruption charges against Mani and other Ministers eventually led to disaffection within the then ruling United Democratic Front (UDF) and Mani’s resignation by the end of 2015. The issue of corruption proved to be the UDF’s undoing, and it lost the next Assembly election held in 2016 (‘ Forced out ’, Frontline , December 11, 2015).
The LDF government led by Pinarayi Vijayan that came to power in its wake took the decision to withdraw the case against the MLAs. Subsequently, in July 2018, the public prosecutor sought the trial court’s permission to withdraw the prosecution. But the CJM Court, before which the case was transferred, rejected it outright in September 2020. The High Court rejected the appeal in March 2021.
The Supreme Court also disallowed the government’s appeal and reaffirmed that legislators are not above the law and must face prosecution if they commit criminal offences even within the State Assembly. “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. This cannot be countenanced as being in aid of the broad ends of public justice,” it said.
In perhaps the first ever Supreme Court order reflecting the growing consensus, both in courts and Parliament, that acts of destruction of public and private property in the name of protests should not be tolerated, Justices D.Y. Chandrachud and M.R. Shah stated 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. 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 [Code of Criminal Procedure] and cognisance 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.”
Privileges and immunity
The judges said that the public prosecutor’s application for withdrawal under Section 321 was based on a “fundamental misconception of the constitutional provisions contained in Article 194” (which deals with powers, privileges, etc., of the House of Legislatures and of the members and committees thereof). The judges said: “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.”
The judges also said that 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. “It is to create an environment in which they can perform their functions and discharge their duties freely that the Constitution recognises 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,” the court noted.
It also held that the legislators shall only possess such privileges that are essential for undertaking their legislative functions. An alleged act of destruction of public property within the House by members to lodge their protest against the presentation of the Budget cannot be regarded as essential for them to exercise their legislative functions. The actions of the members have “trodden past the line of constitutional means”, and are thus not covered by the privileges guaranteed under the Constitution, the court observed.
The order further said: “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.”
In the early course of the case in the trial court, much to the chagrin of the government, a public prosecutor insisted that legally the prosecution case against the MLAs could not be withdrawn. However, the government appointed another prosecutor in her place. The CJM court in Thiruvananthapuram rejected the appeal presented by the new prosecutor.
‘Cause of public justice’
Upholding the trial court’s order, the Kerala High Court observed that there was “no justification for the presumption in the trial court’s order that the petition was filed (by the prosecutor) without good faith and on extraneous influence”. However, the Supreme Court said that the High Court’s finding that there is no absence of good faith in the public prosecutor’s appeal would not by itself mean that the application for withdrawal of prosecution can be allowed as a necessary consequence. It said the court will also have to consider “the cause of public justice and the need to observe probity in public life”.
“The members of the State Legislature have in their character as elected representatives a public trust impressed upon the discharge of their duties,” the judges said, pointing out that the true function of the court when an application under Section 321 (dealing with the aspect of withdrawal from prosecution by the public prosecutor) is filed “is to ensure that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes”.
The Supreme Court reiterated that public prosecutors are duty bound to act independently and ensure that they have applied their minds to the essential purpose that governs the exercise of power and that “the broad ends of public justice” must guide the court’s decision while judging the prosecutor’s actions. Referring to earlier apex court decisions, Justices Chandrachud and Shah said that the court would have to see “whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law”.
The order further says: “Good faith is one and not the only consideration. The court must also scrutinise whether an application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.”
On the touchstone of these principles the Supreme Court ruled that “there can be no manner of doubt that the CJM was justified in declining consent for the withdrawal of the prosecution under Section 321”.
The Supreme Court’s order can be read as a scathing criticism of the State government’s dogged pursual of the appeal for the withdrawal of the prosecution against the MLAs. According to media reports, during the final hearing, Justice Chandrachud said “what was the public interest being pursued by the State through its application to withdraw prosecution under Section 321 of the CrPC?” Justice Shah said, “Why the State government was pursuing the withdrawal application by raising the defence arguments which ought to be raised by the accused?”
Significantly, the judges said that “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. This cannot be countenanced as being in aid of the broad ends of public justice.”
State government’s argument
The State government’s argument was that “acts committed in the Assembly, even if punishable offences, are to be reckoned as part of the proceedings of the House, for the purpose of the protection of the members. At best, their action will only amount to breach of privilege or code of conduct for which only the Speaker is empowered to take action.”
In order to support this claim, the government and the accused MLAs relied on the 1998 Supreme Court judgment in the JMM MPs bribery case ( P.V. Narasimha Rao vs CBI ), which said that “the sanction of the Speaker, as presiding officer of the House, is necessary for prosecution of members of the House for the commission of an offence inside the House”.
The two-judge Bench led by Justice Chandrachud, however, said it was unable to accept such a submission as the Supreme Court decision in the P.V. Narasimha Rao case and the factual background within which it arose were quite different. It said: “In that case MPs were accused of committing offences under the Prevention of Corruption Act. Section 19 of the PC Act specifically provides that cognisance of offences committed by a public servant under Sections 7, 10, 11, 13 and 15 can only be taken with the prior sanction of the authority competent to remove a public servant from office. In light of this section, the majority judges in P.V. Narasimha Rao case held that since MPs are public servants, prior sanction is required to initiate a prosecution against them. The court also held that since there is no authority competent to remove an MP, the power to grant a sanction to prosecute an MP would reside in the Speaker of the House.
“The observations of the Constitution Bench regarding prior sanction were made with specific reference to Section 19 of the PC Act and cannot be construed to imply a broader proposition of law that sanction is a pre-requisite for initiating a prosecution against the members of the House, in this case of the Kerala Legislative Assembly for any offences committed within the House.”
Moreover, the court said, “It would be a stretch to argue that the observations of the court (in the Narasimha Rao case) grant the Speaker a carte blanche to decide if and when criminal proceedings should be initiated against MLAs”.
Justices Chandrachud and Shah also referred to the fact that unlike Maharashtra, Kerala had not amended the relevant provisions of the CrPC warranting the Speakers’ sanction to initiate criminal proceedings against MLAs.
The Code of Criminal Procedure (Maharashtra Amendment) Act, 2015, was enacted amending Sections 156 and 190 of the CrPC. The amended provisions state that no magistrate can order investigation and take cognisance for an offence alleged to have been committed by any person who is or was a pubic servant, “while acting or purporting to act in discharge of his official duties”, without the previous sanction of the sanctioning authority.
The judges said that even in such a case the Speaker’s sanction is necessary only when the act is committed by the person “while acting or purporting to act in the discharge of official duties”. The judges said: “When no provisions warranting the sanction of the Speaker—either specific to the offence (such as the PC Act) or specific to the class (such as the Maharashtra Amendment Act, 2015) are enacted—the argument of the appellant stands on fragile grounds. For the above-mentioned reasons, the contention that the prosecution against the respondent-accused is vitiated for want of sanction of the Speaker is rejected.”
Despite such a well-founded denial of its claims by the Supreme Court, the State government seems to be sticking to its position that what happened in the Kerala Assembly on March 13, 2015, was only a part of the political protest by the then opposition against the presentation of the Budget by a corrupt government and its Finance Minister.
The Congress-led opposition parties have launched an agitation demanding immediate resignation of Education Minister V. Sivankutty, who is among the six former MLAs accused in the case. Another in the list of accused, K.T. Jaleel, too continues to be an MLA. Both of them are part of a government which now has the peculiar responsibility of conducting the case further in the trial court and see that the accused get the punishment they perhaps deserve, even though it has taken a public stand justifying the actions of the accused MLAs.
The Communist Party of India (Marxist) has announced that the agitation in the Assembly took place as part of the party’s decision and that Sivankutty need not resign as Minister as the Supreme Court order contains no adverse remarks against him but only says that the accused should face trial. Sivankutty has said he will not resign but “will prove his innocence in the trial court”. The other legislators accused in the case have also said they are ready to face trial.
Significantly, while replying to a heated debate on the verdict in the Assembly on July 29, Chief Minister Pinarayi Vijayan told UDF members: “It is better that incidents that happen in the Assembly ends in the Assembly itself. The UDF should consider seriously whether its decision to drag the issue into the police station and as a court dispute is indeed in the best interests of the House. The government was trying to uphold the privileges of the members of the House.” He cited as many as 12 instances of such events in various State Assemblies in India which he said “were never dragged outside the House for the consideration of the courts”.
1. Consumed by alcohol , Frontline, May 01, 2015
2. Forced out , Frontline, December 11, 2015