Remarks against Constitution: Kerala High Court dismisses plea to disqualify CPI(M) MLA Saji Cherian

The Kerala High Court on Thursday dismissed a plea that sought disqualification of Saji Cherian, an MLA belonging to the ruling Communist Party of India (Marxist), over his remarks allegedly disrespecting the Constitution of India [Biju P Cheruman v Election Commission if India & Ors.]..A division bench of Chief Justice S Manikumar and Justice Shaji P Chaly delivered the verdict."Having gone through Sections 8, 8A, 9, 9A, 10, and 10A of the Representation of Peoples Act, 1951, dealing with disqualifications, we could not locate any law under the said provisions to attribute disqualification against the M.L.A., by invoking the powers conferred under Article 226 of the Constitution; the provisions being transparent with respect to the disqualifications", the judgment stated,.The petition sought an order from the Court declaring that former Kerala Fisheries and Culture Minister, Saji Cherian, is not entitled to hold the office of MLA.Earlier this year, Cherian had found himself in hot water after he said that the Constitution of India was used to exploit commoners. The speech which was delivered at a party event had sparked such a controversy that the MLA soon resigned.The petitioner contended that by publicly insulting the Constitution, Cherian violated Articles 173(a) and 188 of the Constitution of India which set out the qualifications and oath sworn by MLAs.On the other hand, Advocate General (AG) K Gopalakrishna Kurup, submitted that as per Articles 191 and 192 of the Constitution, there are certain parameters and procedures to be followed to disqualify a member of the State Legislative Assembly or Legislative Council.Referring to a full bench decision of the Court in KC Chandy v R Balakrishna Pillai, the AG argued that even if there was a breach of oath by a Minister, it would not call for disqualification as an MLA and that the reliefs sought for in the instant writ petition cannot be granted under Article 226 of the Constitution of India..As it had done previously, the bench opined that the provisions of Article 173(a) which deals with qualifications for MLAs are not applicable since Cherian has already been elected as a member of the State Legislature. "Whether the 1st respondent (Cherian) has violated the Oath of office, on the basis of the subject matter, is a matter which could be identified or deciphered only by a fact finding body, taking into account the attendant circumstances. So also, Article 173 of the constitution of India deals with the qualifications of a person to become a member of a Legislative Assembly, which has nothing to do with the case projected by the petitioners. Therefore, we are of the view that, if at all the allegations have any intrinsic relationship with the disqualifications deliberated above, there is a straightforward remedy specified under the Constitution of India", the judgment stated..[Read Judgment]