In an important verdict, a bench of the Supreme Court consisting Justice D. Y. Chandrachud and Justice M. R. Shah has observed that legislative immunity is not absolute and it should not obstruct the path of natural justice. Beyond a doubt, this judgement will have far reaching consequences as many applications are pending before various courts for the withdrawal of criminal cases involving our lawmakers. One can only hope that law will not succumb to any pressure while dealing with such applications after this verdict. At the same time, it will help to clean our electoral system as the absence of immunity will discourage persons with criminal records to join politics. If political parties too take this judgement seriously, from now onwards we may see candidates with a clean image instead of those with criminal records.
The said judgement was delivered in a case which involved a few law makers of Kerala Assembly, who took the law in their own hands and indulged in rampant vandalism by breaking chairs, lights and microphones - everything that came their way. The law makers damaged property worth INR 2.2 lakh on that day. As per the normal procedure, criminal complaints were filed against them. Quite strangely through after a few months the Kerala Government filed applications to withdraw the cases against the law makers invoking section 321 of the Indian Penal Code, citing Article 194 of the Indian Constitution which speaks about the immunity and privileges of legislators. But the judiciary rejected the appeal on three instances – in the lower court, in the High Court and finally by the Supreme Court on observing that such petitions cannot be entertained if it is not justified and necessary.
Yes, there are instances when such petitions were accepted. Former Union Minister George Fernandez was a beneficiary of such immunity. Few other political persons are on that list too. But such practices cannot be allowed to go on forever as the law on this point is clear. It says that a criminal offence should reach its legal conclusion and should not be aborted midway considering the status of the accused. As Justice Chandrachud observed that “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.”
It is time now to remove the unequal pedestal. The Supreme Court has shown the way by its latest verdict and also by asking the election authorities to clarify within 24 hours of filing nomination whether or not the candidate has criminal cases against him/her. Clearly, privileges and immunity of the law makers need a constitutional corrigendum. It is now for the political parties as well as the electorate to act. While the parties should not field any candidates with criminal records, the electorate should never support persons with criminal background as their representatives. This double edged attack by both the judiciary and the electorate will definitely clean the electoral system.