Legislative Privileges & Immunities Not Gateways To Claim Exemption From Criminal Law : Supreme Court In Kerala Assembly Ruckus Case

While refusing to allow the withdrawal of criminal prosecution against six LDF members in the Kerala assembly ruckus case of 2015, the Supreme Court made certain significant observations on the scope of legislative privileges and immunities.

The State of Kerala and the accused persons had raised an argument that the criminal prosecution was not sustainable against the members for acts committed in the floor of the assembly as they are protected by legislative privileges under Article 194 of the Constitution.

Rejecting this argument ,a division bench comprising Justices DY Chandrachud and MR Shah observed that legislative privileges cannot be claimed to seek exemption from the application of criminal law.

In this regard, the judgment authored by Justice DY Chandrachud traced the history of legislative privileges to the House of Commons and observed "a stand out feature which emerges from  the privileges and immunities of the members of the House of Commons is the absence of an immunity from the application of criminal law".

Observing that there is a valid reason for this position, the judgment explained the purpose of legislative privileges as follows :

"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 recognizes 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 that Articles 105 and 194 of the Constitution, which deal with privileges of the members of the Parliament and Legislative Assemblies respectively, state that "there shall be freedom of speech and expression" in the legislature. The Court underscored that this freedom of speech is guaranteed to ensure that the elected representatives are able to perform their duties in discharge of the trust placed upon them by the people.

Significantly, the Court observed :

"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".

The State and the accused had relied on the judgment in PV Narasimha Rao vs State AIR 1998 SC 2120 (JMM Bribery) case to argue that the action of the respondent-accused inside the House was a form of 'protest' which bears a close nexus to the freedom of speech, and thus is covered by Article 194(2). The Court repelled this argument as "unsatisfactory". The said judgment was dealing with the aspect of right to vote in Parliament, as governed by Article 105(2), and did not deal with the 'freedom of speech' aspect.

The privileges are available only as far as they are essential for the members to carry out their legislative functions, the Court said referring to the precedent in Lokayukta, Justice Ripusudan Dayal (Retired) and Ors. vs State of Madhya Pradesh & Ors (2014) 14 SCC 473.

"An alleged act of destruction of public property within the House by the members to lodge their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative functions. The actions of the members have trodden past the line of constitutional means, and is thus not covered by the privileges guaranteed under the Constitution", the judgment stated.

Further, the Court said :

"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 and cognizance 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".

Assembly ruckus not 'proceedings' of the house within the meaning of Article 194(2)

The Court further held that "acts of vandalism cannot be said to be manifestations of the freedom of speech and be termed as "proceedings" of the Assembly".

"It was not the intention of the drafters of the Constitution to extend the interpretation of 'freedom of speech' to include criminal acts by placing them under a veil of protest. Hence, the Constitution only grants the members the freedom of speech that is necessary for their active participation in meaningful deliberation without any fear of prosecution".

The Court also added that there has been a growing recognition and consensus both in this Court and Parliament that acts of destruction of public and private property in the name of protests should not be tolerated.