'Entitled To Legislative Privileges' : Kerala Govt Move Supreme Court Seeking Withdrawal Of Criminal Cases For 2015 Assembly Ruckus

The State of Kerala has filed a special leave petition in the Supreme Court seeking the withdrawal of criminal cases against six prominent CPI(M) members for the ruckus and vandalism caused in the Kerala Legislative Assembly in 2015.

The SLP is filed against the March 12 judgment of a single bench of the Kerala High Court which had dismissed the state's revision petition against the refusal of Chief Judicial Magistrate, Thiruvananthapuram, to allow the withdrawal of prosecution in these cases under Section 321 of the Code of Criminal Procedure.

A single bench of Justice VG Arun had observed that the withdrawal of prosecution "will not advance public justice". The High Court had also rejected the argument that the accused were entitled to protection of legislative privileges, observing that the alleged acts were not "acts done in furtherance of the free functioning of the house."

In the plea before the Top Court, the Kerala Government say that the acts happened during a protest staged against the presentation of budget by the then Finance Minister KM Mani, who was facing allegations of involvement in bar-bribery scam.

It is argued that the High Court failed to appreciate that the alleged acts took place while the assembly was in session, and hence no FIR could have been lodged without the sanction of the Speaker. The FIR was registered by the Secretary of the Legislative Assembly without the consent of the Speaker, it is stated.

Entitled to protection of legislative privileges

The petition raises the argument that the accused persons, who were then MLAs, are entitled to the protection of legislative privileges for their acts committed at the floor of the house.

"Articles 105(3) and 194(3) of the Constitution of India confer certain privileges and immunities to the members of the Parliament and State Legislature. The act of the accused being in relation to their function as members of the Legislative Assembly, no criminal proceedings can be initiated", the plea states.

Referring to Chapter 12 of text book Practice and Procedure of Parliament by Kaul and Shakdher,  the State of Kerala argues that acts committed in 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 privilege or code of conduct for which only the Speaker is empowered to take action.

"The Learned single judge failed to consider the legal proposition that with regard to a crime committed in Parliament, the house in which it was committed might claim the right to decide whether to exercise its own jurisdiction or to hand the offender over to criminal courts. In taking this decision, it would no doubt guided in the nature of the offense and the adequacy or inadequacy of the penalty, some what lacking in feasibility, which it could indict. However, there is no decision by the house in this case, and the collective protection available to the members of the house was also ignored by the learned Single Judge. The learned Single Judge failed to consider article 105(3) of the Constitution of India and there is absolutely no discussion with regard to the said privileges and immunities of the house, as a whole", the petition reads.

It is argued that the High Court failed to see that the withdrawal applications were filed by the Public Prosecutor in good faith and public interest. There is no justification on the presumption that the petition was filed without good faith and on extraneous influence.

Six members of CPI(M) were booked under the Indian Penal Code and the Prevention of Damage to Public Property Act for the vandalism in the house.  Out of the accused, V Sivankutty is now the Education Minister in the present second term of the LDF government. EP Jayarajan and KT Jaleel, who were ministers in the previous LDF government, CPIM members CK Sahadevan, K Ajith and K Kunhammed are the other accused.