Judgments

THE STATE OF KERALA VS. K. AJITH : CASE SUMMARY

The Supreme Court in the State of Kerala Vs. K. Ajith AIR 2021 SC 3954 has held that privileges and immunities are not gateways to claim exemptions from the general law of land. particularly the criminal law,  which governs the action of every citizen.

FACTS OF THE CASE

The Finance Minister was presenting budget for Financial Year 2015-16 in Kerala Legislative Assembly. Respondents, who were members of opposition party, disrupted the presentation of budget, climbed over to the speaker dais and damaged furniture and articles including the speaker’s chair, computer, mike, emergency lamp, and electronic panel causing loss of Rs. 2,20,093/-. FIR was registered under Section 447 and 427 R/w Section 34 IPC and Section 3 (1) of the Prevention of Damage to Public Property Act, 1984. On the completion of investigation, the final report under Section 173 of the Cr.P.C. was submitted and cognizance was taken by the Additional CJM. Assistant Public Prosecutor filed Application for withdrawal of case under Section 321 CrPC on several grounds including privileges of members of Legislative Assembly under Article 194 (3).  The CJM declined to give consent for withdrawal. Criminal Revision Petition filed before the High Court was also dismissed.  The matters reached to the Supreme Court.

FINDINGS OF THE SUPREME COURT

The Supreme Court observed that under Section 321 CrPC , consent of the Court is required. The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice. The Public Prosecutor has to formulate independent opinion. Merely the fact that proposal has come from the Government will not vitiate the application.

The Supreme Court noted that Article 105 and 194 provide in similar terms for the privileges and immunities of Members of Parliament.

The Supreme Court observed that Clause (1) of Article 194 recognized the freedom of speech in legislature of every State. The freedom recognized by clause (1) is subject to provisions of the Constitution and standing orders regulating the procedure of State Legislatures. Clause 2 grants immunity which protects a member of the legislature from a proceeding in any court “in respect of anything said or vote given” in the legislature or in any committee of legislature. As far as clause (3) is concerned the Supreme Court observed that the ultimate source of the powers, privileges and immunities of a State Legislature and of the members and committees would be determined by way of a legislation. Until such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the Forty-Fourth Amendment Act 1978 would govern.

The Supreme Court observed that Parliament is as yet to enact the law on the subject of parliamentary privileges.  According to Article 194 (3) of the Constitution, the MLAs possess privileges that the members of the House of Commons possessed at the time of enactment of the Constitution. The Supreme Court after surveying several authorities of United Kingdom concluded that person committing criminal offence within the precincts of the House does not hold an absolute privilege. He would possess a qualified privilege and would receive immunity only if action bears nexus to the effective participation of the member of the House.

The Supreme Court observed that privileges and immunities are not gateways to claim exemptions from the general law of land. particularly 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.

The Supreme Court reiterated law laid down in Lokayukta, Justice Ripusudan Dayal (retired)  Vs. State of Madhya Pradesh (2014) 4 SCC 473 that the members shall possess such  privileges that are essential for undertaking their legislative functions. Alleged act of destruction of public property to lodge protest against presentation of budget cannot be regarded as essential for exercising their legislative functions.

The Supreme Court also rejected the contention that the prosecution against the respondents is vitiated for want of sanction of speaker.

The Supreme Court also observed that the video recording that was procured from the Electronic Control Room of the Assembly is not a copy of the broadcast of the incident in the local or national television but was a part of the internal records of the Assembly. Thus, the stored video footage of the incident was not broadcast, or in other words, published, for dissemination to the public. Since it was not a publication of house, it does not enjoy the protection of immunity under Article 194 (2) of the Constitution.

The Supreme Court did not find merit in appeal and dismissed the same.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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