Disruption in Legislature and Privileges of Elected Representatives vis-à-vis Kerala Assembly Ruckus

- Ayush Mangal & Prakhar Raghuvanshi*

In 2020, the Rajya Sabha passed two farm bills amid fierce protests that saw the tearing of papers and the breaking of the microphones of both the Secretary-General and Deputy Chairman. The incident resulted in the suspension of eight opposition Members of Parliament (“MPs”) for a week. A week-long suspension might appear disproportionate in light of the actions of the MP as our Constitution grants certain immunities and privileges to members of parliament and state legislatures during house proceedings for the functioning of democracy. The rationale behind these privileges and immunities is grounded in the idea of dissent and, thereby, protest. The need and importance of these provisions become clearer when authoritarianism knocks on the door of Parliament. Recently, during the protest against the General Insurance Business (Nationalisation) Amendment Bill, 2021, the opposition was blamed for manhandling a female marshal. However, the opposition refuted these allegations and termed the use of female guards as ‘gender shields’.

An endless debate emerges from such instances. It is not an exaggeration to say that this constitutional protection might be losing its value in the eyes of the general populace in light of such misuse of parliamentary privileges. However, there are some limits to these privileges as well. The Supreme Court, in the case of The State of Kerala v. K. Ajith, briefly considered these questions. The following discussion is restricted to privileges and prior sanction of the speaker to prosecute Members of Legislative Assembly (“MLAs”), for the other contentions and the final judgment in the case, are outside the scope of this article.

Background

Nani Palkhivala, while quoting Hilaire Belloc, wrote about the worrisome state of politics and ethical values held by politicians decades ago, which unfortunately holds true even today, especially in light of the case at hand[i]-

“The standard of intellect in politics is so low that men of moderate mental capacity have to stoop in order to reach it. Indian Democracy has reached its nadir because in our average politician we have the sordid amalgam of lack of intellect with lack of character and lack of knowledge.”

On 13th March 2015, when the Finance Minister of the Kerala Legislative Assembly was presenting the budget, members of the opposition party disrupted the budget presentation and caused damage to the speaker’s chair, computer, electricity lamp, etc. While this incident was reported by the Legislative Secretary, in due course, an application was filed for withdrawal of the case against the accused members. However, the Chief Judicial Magistrate, Thiruvananthapuram, and the Kerala High Court declined to withdraw the prosecution, citing that the conduct of the MLAs could not be deemed to be in furtherance of functioning of free democracy and was beyond the “immunity and privileges” granted under Article 194. In light of the same, independent Special Leave Petitions were filed in the Supreme Court against the order of the High Court. In the State of Kerala v. K. Ajith, the Court dealt with the justifiability of the withdrawal of prosecution by the state in detail.

Contentions

The State of Kerala apart from contending that withdrawal of prosecution is a supervisory function of the Court and not an adjudicatory function, put forth a set of hideous arguments. First, that the offence committed by the appellant is a manifestation of effective political participation and in furtherance of the political purpose representing the right to protest under Article 194. It further attempted to argue that video evidence of the act would count as the publication of the house under Article 194(2), and any member shall not be liable in respect of such publication.

Second, that the incident happened within the premises of the Legislative Assembly, and thus, the prosecution cannot be initiated without the sanction of the presiding officer of the Legislative Assembly. The state (wrongly) relied on P.V. Narasimha Rao v. State, where according to the appellants, it was observed that the sanction of the speaker is required for the registration of an offence against an MLA in general.

The counter to the above arguments was based on the rationale that freedom of speech under Article 194 does not embrace the right to destroy property within the premises of the Legislative Assembly, and thus, privileges cannot be used as an excuse for violent acts. It was also contended that members cannot claim privileges as a shield to avoid the criminal prosecution and that P.V. Narasimha Rao only mandated prior sanction of the speaker for prosecution under Section 19 of the Prevention of Corruption Act, 1988, which cannot be generalized to bring every prosecution within its ambit.

Does Privilege Include Disruption?

The Hon’ble Court, firstly, differentiated between the position in the United Kingdom and the position in India regarding the immunity and privileges of legislators. The difference holds significance because Article 194(3) states that the source of privileges and immunities would be determined through legislation, and until so determined, the privileges shall be the same as the House of Commons of the UK Parliament at the time of the commencement of the Constitution. As of now, there is no legislation to determine such privileges, and thus, it will be the same as the House of Commons.

There is a need to look at English law cases since the power to determine privileges and immunities of the House of Commons is in the hands of the Court. Accordingly, after analysing Bradlaugh v. Gossett and R. v. Chaytor and Ors., the Court held that it is evident that the member can have qualified privilege if he commits an offence within the House and would receive the immunity if his actions are necessary for effective participation.

In India, courts have tried to determine the extent of privileges and immunities in light of the absence of any legislation to do so. In P.V Narasimha Rao, the Court stated that for fearless participation, members need immunity against all civil and criminal proceedings that bear nexus to their speech and vote. Further, in the case of Lokayukta, Justice Ripusudan Goyal, the Court said that privileges are those rights that are necessary for legislative functions.

Thus, in the present case, the Court held that destroying public property within the House cannot be equated with freedom of speech under Article 194. The purpose of privileges is to enable the legislators to perform their legislative functions without fear, and thus, under the garb of this provision, they cannot claim exceptions from the general law of the land, particularly from criminal law. Furthermore, the Court accepted the argument of the respondent, holding that there is no specific provision in India that requires the sanction of the speaker. Lastly, the Court held that the video of the incident would not be considered “proceeding” of the Assembly since proceedings refer to only those actions which are exercised by members under official capacity for participation in the house and thereby, the video recordings are not protected from legal proceedings under Article 194(2).

Prior Sanction of Speaker?

The only case requiring the sanction of the speaker for prosecution is under the Prevention of Corruption Act, 1988 (“the Act”). In Narasimha Rao, it was held that the definition of public servants under the Act is much wider than the general definition of public servants under Section 21 of the Indian Penal Code (“IPC”) and thereby includes MPs within its ambit. However, the same is not to be applied generally.

In addition to this, there are numerous precedents that hold that MLAs do not qualify as public servants under the IPC, and hence no sanction is required (R.S.Nayak v A.R.Antulay). However, it must be noted that in M. Karunanidhi v. Union of India, it was held that MLAs in the capacity of Chief Minister or any other Minister would qualify as public servants. Justice Chandrachud, rejecting the contention, stated that there exists no provision warranting such sanction without relying on the aforementioned precedents. The petitioners relied on Satish Chandra v. Speaker, Lok Sabha and Ram Das Athawale v. Union of India and argued that the Speaker’s power to regulate the proceedings is final and binding. Justice Chandrachud, however, rejected the contention of the petitioner and said that the power to regulate proceedings could not be interpreted to mean that the Speaker has a carte blanche to decide the prosecution of a member.

Moreover, the State of Kerala has no State Amendment mandating prior sanction of sanctioning authority, unlike Maharashtra, which enacted The Code of Criminal Procedure (Maharashtra Amendment) Act, 2015, mandating prior sanction while discharging official duties. It is interesting to note that the question of prior sanction in this specific case would not have affected the final outcome as the case against MLAs was registered at the instance of the Secretary of the Legislative Assembly. It can be rightly assumed that this was within the knowledge of the speaker. Relying on this fact, the Chief Judicial Magistrate, Thiruvananthapuram, rejected the contention that the case was not registered with the prior sanction of the speaker (¶ 5).

Conclusion

While privileges and immunities granted to elected representatives, especially for the opposition inside the house, are crucial and form the essence of parliamentary democracy, they must be saved from outright abuse, like in the case of Kerala. These privileges and immunities are indispensable for the opposition, especially when discharging their functions under a government with authoritarian tendencies. It is this very factor that demands that the general populace must revere them. The ruckus in the Kerala Legislative Assembly under the name of protest and dissent had the opposite effect. It is for these reasons that a well-reasoned judgment defying the tendency to abuse privileges and immunities is important.

However, this again highlights the sheer lack of commitment that our elected representatives have towards strengthening legislature and democracy. Article 194(3) leaves the task of determination of privileges, immunities and powers for the legislature. Yet, no such law has been enacted even today. Considering the rise in allegations of misuse of the provisions and instances of actual abuse like in the present case, it becomes necessary to prioritize this and keep reminding ourselves of what Palkhivala said - “A democracy without discipline is a democracy without future.’

Endnotes [i] Singhvi, Pai & Ramakrishnan ed., Nani Palkhivala: Selected Writings, p. 76 (Penguin 1999).

*Ayush Mangal is a second year student at National Law University Jodhpur. Prakhar Raghuvanshi is a fourth year student at National Law University Jodhpur.

Views are Personal.