Legislative immunity is not absolute

Legislative immunity is not absolute

The very idea of privilege is colonial and there is mounting pressure across the Commonwealth countries to abolish the ‘special statuses’ for lawmakers

Bad litigations can often make good laws. The law laid down by the Supreme Court in the infamous Kerala Assembly ruckus case demonstrates this point. The judgment of July 28 by the Bench consisting of Justices D Y Chandrachud and M R Shah is immensely instructive. It sets a fine precedent.

What happened on 13 March 2015 on the floor of the Kerala Legislative Assembly is deplorable. A few among the legislators crossed all limits, broke the elementary rules of discipline and decency, and indulged in acts of sheer vandalism. Furniture and equipment in the hall were destroyed and the estimated loss due to destruction of property was about Rs 2.2 lakh. The telecast of the incident conveyed an egregious facet of our democracy—the lawmakers themselves breaking the law. 

Rather than the incident in 2015, it is the government’s persistent attempt to subvert the due process that shocks the citizens and presumably, the court. In the process, the government wanted to create two legal superstitions and tried to support them. Firstly, it tried to invoke Section 321 of the Criminal Procedure Code (Cr.PC) to withdraw the case against the accused. Secondly, it sought to do so by relying on Article 194 of the Constitution that inter-alia talks about the immunity and privileges of the legislators. Both these ideas were clearly fallacious. Still, the government moved the trial court, the High Court and the Supreme Court, inviting judicial admonitions, one after the other.

Withdrawal of criminal prosecution at the behest of the state may be sometimes necessary and justifiable. The prosecution against George Fernandes was sought to be given up on political grounds, which was endorsed by the top court in the Rajendra Kumar Jain case (1980). Fernandes was accused of opposing the Emergency and indulging in political acts to overawe the government. The court said there was no improper motive in withdrawing the case. But such instances where prosecutions are given up due to legitimate political reasons are extremely rare. Very often, leaders inside and outside the House justify the atrocity when it suits them and oppose it if done by the rival camp. 

The law on the point is clear. A criminal offence should reach its logical conclusion and it cannot be aborted solely on the grounds that the accused is a political bigwig. The erstwhile corresponding provision in the Cr.PC, ie, Section 494, was interpreted by the top court in Ram Naresh Pandey (1957) to say that withdrawal of prosecution can be done for legitimate purpose, and it should not interfere with the normal course of justice. In Sankaranarayanan Nair’s case (1971), the court said that it can be invoked “in furtherance of justice”. The Chandrachud-led Bench, after referring to these precedents and the George Fernandes case, has clarified the legal principle. The judgment says that a prosecution could be withdrawn only on legally justifiable grounds. The prosecutor who files the application cannot act merely as per the dictates of the government. She should “formulate an independent opinion” and convince herself and also the court that the withdrawal “is necessary for good and relevant reasons”. The court considering such a plea is exercising a “judicial function” that is also “supervisory in nature”. The Supreme Court indicated that “good faith, in the interest of public policy and justice” must be the hallmark of an application for withdrawal of prosecution, which the petition in the instant case ostensibly lacked.

The court also exposed and explained the jurisprudence of legislative immunity. Article 105 of the Constitution speaks about the parliamentary privileges and Article 194 extends analogous protection to a member of the Legislature of every state. The very idea of privilege is colonial and there is mounting pressure across the Commonwealth countries to abolish the ‘special statuses’ for lawmakers. Legislative privileges in India are not codified. Understanding the privileges and the immunity means understanding their limits. Democracy rests on the limitations to power.

A member of Parliament or Assembly is many in one. She represents a multitude of people and undertakes multiple tasks. Edmund Burke has put it in perspective: “You choose a member , indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of Parliament.” The legislators have a critical, instructive and responsible job. They need to act as true leaders. If they fail, the public at large are impacted. John Adams famously said, “When the legislature is corrupted, people are undone.”

Privilege and immunity, which are essentially Victorian cosmetics, need a constitutional corrigendum. In the words of Justice Chandrachud, “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” and “they are not a mark of status which makes legislators stand on an unequal pedestal”. The Kerala government has shown the audacity to claim immunity under the garb of Article 194 for what a few legislators did. It defended the indefensible. 

Constitutional morality must be the cornerstone of good governance and the Left government’s political obstinacy on the issue is deeply disturbing. Even after the setback, the chief minister and the leaders with him have been quite unapologetic about the whole episode. One can only remind them what Mahatma Gandhi said in a different context: “If fighting for the legislatures meant a sacrifice of truth and non-violence, democracy would not be worth a moment’s purchase.” 

Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com,Twitter: @KaleeswaramR)


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