Plea In Kerala High Court Seeks To Disqualify Saji Cherian From MLA Post Over His Remarks On The Constitution

A petition has been moved in the Kerala High Court seeking a direction to declare that CPI(M) legislator and former minister Saji Cherian is not entitled to hold the office of MLA after his remarks allegedly insulting the Constitution sparked a controversy across the State.

When the matter was taken up on Tuesday, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly took a prima facie view that Article 173 of the Constitution, which deals with qualification for being an MLA, may not be applicable here.

"The said provision deals with qualification for membership of State Legislature and in the case on hand, being qualified, Mr. Saji Cherian, the 4th respondent, had already been elected as a member of the State Legislature, prima facie, we are of the view that the said Constitutional provision may not be applicable."

However, the Court opined that the question of whether Cherian's speech would attract disqualification under Article 188 (Oath or affirmation by member of Legislative Assembly) has to be looked into.

Cherian, who was previously the State's Fisheries and Culture Minister, had allegedly said that the Constitution was 'used to exploit commoners' while speaking at a party event earlier this month. After this statement courted a political row, the legislator had stepped down and resigned over the issue. 

The petition before the High Court has asserted that the former minister publicly insulted the Constitution in a public speech at his political meeting, which was published in the Malayalam daily Mathrubhumi.

Advocate P. K. Pretheep Kumar appearing for the petitioner argued that Cherian's conduct is violative of Articles 173(a) (qualification for being an MLA) and 188 (oath/affirmation by MLAs) of the Constitution while adding that a case has also been registered against him under the Insults to National Honour Act, 1971 over the incident. 

The grievance of the petitioner is that despite all of this, Cherian was still holding the post of MLA of the Kerala Legislative Assembly.

Advocate General K. Gopalakrishna Kurup submitted that to disqualify an MLA, the Constitution provides certain parameters and also the procedure to be followed. He objected to the relief sought in the petition on the ground that even if there is a breach of oath by a minister, that would not call for disqualification as an MLA.

The Court noted that on going through the material on record, there was not any reference to the provisions of the Representation of the People Act. 

"Material on record discloses that on the allegations that Mr. Saji Cherian, the 4th respondent, has made statements against the Constitutional provisions, it appears that a crime has been registered under the provision of Insults to National Honour Act, 1971.. Going through the material on record, we do not find any reference to the provisions of the Representation of the People Act, 1951, as regards disqualification of a Member of a Legislative Assembly."

Similarly, it was found that though it has been disclosed that a representation has been made to the Election Commission of India to declare Cherian as ineligible and disqualified, no provisions have been referred to in the averments filed in support of the petition.

As such, the Bench directed the petitioner to produce relevant provisions of the Representation of the People Act, election laws or any orders issued by the Election Commission of India in this regard by today. 

Case Title: Biju P. Cheruman v. Election Commission of India & Ors. 

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