SC verdict re-ignites debate on law vs lawmakers

K Raveendran
The Supreme Court has passed a historical verdict on the powers of the legislature vis-à-vis other institutions of parliamentary democracy, declaring that the privileges of the elected representatives do not place them above the law of the land.
The landmark decision by a bench comprising Justices D Y Chandrachud and M R Shah came while dismissing a petition filed by the Kerala government against the Kerala High Court decision that upheld a decision by a chief judicial magistrate disallowing the state government’s bid to withdraw a criminal case against six CPI-M MLAs who destroyed public property while protesting against the presentation of budget in 2015 by the then finance minister K M Mani, facing corruption charges.
The decision is bound to trigger a heated debate over whether the court can interfere with the powers and authorities of the Speaker, which have been upheld in many cases. But the latest decision declares that the privileges and immunity “are not a gateway to claim exemption from criminal law and that would be a betrayal to the citizens”.
“The purpose of bestowing privileges on legislators is to enable them to perform their legislative functions without hindrance or without fear or favour. They are not a mark of status which keep legislators on an unequal pedestal. Legislators should act within the parameters of the public trust imposed on them to do their duty,” the judgment said.
Committing destruction of property cannot be equated to freedom of speech in the House. The argument that the acts were done in protest is unsatisfactory. Criminal law must take its normal course, the court declared.
The argument advanced by the state government was that the action of the members were protected by legislative privileges under Article 112 of the Constitution. As such, there cannot be any criminal prosecution with respect to acts done within the house, and the only authority to take action was the Speaker. However, the bench had responded by asking if a legislator can claim immunity for criminal acts done within the house. Justice Chandrachud even posed a hypothetical question by asking if a member shoots within the house using a revolver, can he claim immunity from prosecution by citing legislative privileges.
The court also rejected the argument of the government that since the Speaker has already taken action against the offenders by suspending them, criminal prosecution was unwarranted. The court had observed that they should also face action for offences under the Indian Penal Code and the Prevention of Damage to Public Property Act.
The case has occupied much prime time on television channels and newspaper columns, where the crucial point of discussion was the extent of a legislator’s privilege. Those arguing against absolute immunity contended that parliamentary privileges were intended to be enjoyed on behalf of the people in their interests and that damage to public property created out of taxpayer money was not in furtherance of such interest. Privileges are necessary for the house to perform its legislative functions, but not against criminal proceedings, it was argued.
Already, political reactions have come in criticising the latest judgment, and expressing the fears that the court has overstepped its jurisdiction to deal with an area that is the sole area of concern for the speaker of the house. There have been several cases in the past, particularly in issues relating to the conduct of the speaker in partisan situations, when the court refused to interfere citing the absolute powers of the master of the house.
The Speaker’s office has often been dragged into controversies over the speaker’s decisions on the disqualification of members who switch sides for profit or political power. And in most cases the courts have taken a stand that gave the speaker unchallenged powers in deciding the issue. But there have been far fewer number of instances when the court was called upon to decide to what extent criminal laws were applicable to the goings-on in the house and the scope of applying such law to the conduct of members in the house.
The latest judgment by Justices DY Chandrachud-MR Shah bench settles that issue for good. (IPA)