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SC rejects Kerala govt’s plea to withdraw criminal cases against MLAs who vandalised assembly

The court said there is no merit in Kerala government’s appeal & that there is no immunity to protect legislators indulging in vandalism during a House session.

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New Delhi: The Supreme Court Wednesday said there is no immunity or privilege to protect legislators indulging in vandalism during a House session.

The ruling by a bench led by Justice D.Y. Chandrachud came as it dismissed the Kerala government’s appeal to withdraw criminal cases lodged against six prominent leaders of the CPI(M) for alleged vandalism during the assembly session in 2015.

The top court held the trial court was right in rejecting the state prosecutor’s plea to withdraw the FIR. It said lawmakers possess privileges that are essential for exercising public functions. “Vandalism and destruction inside the House are not essential for exercising legislative function,” said the bench, also comprising Justice M.R. Shah.

It added that the accused held a responsibility as elected MLAs. “In the same manner as any other citizen, they are subject to the boundaries of lawful behaviour set by criminal law.”

“There is no merit in the Kerala government’s appeal and the appeal stands dismissed,” the top court said.

Of the six accused in the case, two — V. Sivankutty and K.T. Jaleel — are members of the present assembly. While Sivankutty is the state’s education minister, Jaleel is a former minister. The others — E.P. Jayaranjan, C.K. Sadasivan, Kunahmed Master and K. Ajith — were charged under the prevention of damage to public property act and other provisions.

The Assembly witnessed violence scenes in March 2015, after the six tried to prevent the then finance minister K.M. Mani from presenting the budget, alleging his role in the bar bribery case.

On purpose and object of the Prevention of Damage to Public Property Act, the court said it was to curb acts of vandalism and damage to public property. No member of an elected legislature, it ruled, can claim either a privilege or immunity to stand above the sanctions of the criminal law, which applies equally to all citizens.

‘Act of vandalism doesn’t come under freedom of speech’

In its judgment, the Supreme Court said it was imperative for the court to scrutinise whether application for withdrawal of a case is made in good faith, and serves public functions. It must also serve public faith and justice.

“While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated,” the verdict stated.

The act of vandalism does not even come under freedom of speech, the bench said, rejecting the state’s arguments that the six had exercised their constitutional rights by voicing their anger against the then ruling government.

“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,” the court said.

The top court held the privileges of MLA bear a functional relationship to the discharge of his or her duty as a legislator, but immunities are not a mark of status that makes them stand on an unequal footing. “It is a conception that elected representatives stand above the general law,” said the bench.

‘Lawmaker has right to protest but subject to rules’

Noting that withdrawal of cases will be against public justice, the court said MLAs are under constitutional responsibility to discharge duties.

A member of the legislature, the opposition included, has a right to protest on the floor of the legislature. But the same is subject to provisions of the Constitution and rules, said the SC bench.

“Those duties and functions are as much a matter of duty and trust as they are of a right inherent 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 noted.

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.

Noting that the video recordings that were used by the police to file the chargesheet against the six accused was not a publication or broadcast, the court said that prosecution need not seek sanction of the Assembly speaker to proceed.

‘Withdrawal application betrays the constitutional provisions’

According to the court, the entire foundation of the public prosecutor’s withdrawal application. filed under the criminal procedure code, was flawed.

It said the application was based on a fundamental misconception of the constitutional provisions contained in Article 194 (related to privileges and immunity for lawmakers).

“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,” said the bench.

Even 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 enactor of the law”.

The judgment also discussed the existing law on withdrawal of cases under criminal procedure code and observed that in offences involving violation of public trust by executive or legislative authorities, the court has in the past evaluated the gravity of the offence and the impact of the withdrawal of prosecution on public life.

Therefore, it added, the public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw the prosecution.

“While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons,” the court remarked.

This report has been updated with additional details from the judgment.

Also read: ‘Failed’ law, ‘misused to stifle dissent’: Ex-SC judges speak out against UAPA, sedition, NSA


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