Supreme Court reiterates limits of legislative privileges while disallowing Kerala’s plea

The Left Democratic Front government in Kerala faced an embarrassing setback on July 28 when the Supreme Court ruled against its appeal to withdraw the criminal prosecution case against six former LDF legislators accused of destruction of property and vandalism in the State Assembly on March 13, 2015. The Supreme Court also disallowed the government’s appeal and reaffirmed that legislators are not above the law and must face prosecution if they commit criminal offences even within the State Assembly. According to media reports, during the final hearing, Justice Chandrachud said “what was the public interest being pursued by the State through its application to withdraw prosecution under Section 321 of the CrPC?” Justice Shah said, “Why the State government was pursuing the withdrawal application by raising the defence arguments which ought to be raised by the accused?” Significantly, the judges said that “allowing the prosecution to be withdrawn would only result in a singular result, which is that the elected representatives are exempt from the mandate of criminal law. At best, their action will only amount to breach of privilege or code of conduct for which only the Speaker is empowered to take action.” In order to support this claim, the government and the accused MLAs relied on the 1998 Supreme Court judgment in the JMM MPs bribery case, which said that “the sanction of the Speaker, as presiding officer of the House, is necessary for prosecution of members of the House for the commission of an offence inside the House”. “The observations of the Constitution Bench regarding prior sanction were made with specific reference to Section 19 of the PC Act and cannot be construed to imply a broader proposition of law that sanction is a pre-requisite for initiating a prosecution against the members of the House, in this case of the Kerala Legislative Assembly for any offences committed within the House.” Moreover, the court said, “It would be a stretch to argue that the observations of the court grant the Speaker a carte blanche to decide if and when criminal proceedings should be initiated against MLAs”.