Prerogative of the legislator to be out of jail

Should it be the prerogative of the legislator who is in police or judicial custody or serving a sentence to attend the legislature?

G. Mohan Gopal

G. Mohan Gopal, Director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi, delivering the lecture in Trivandrum

G.  Mohan Gopal, who delivered a lecture on “Parliamentary Prerogatives and Judicial Activism”  in connection with the Diamond Jubilee of Kerala Legislature here on June 7 said that the judiciary was not according sufficient protection to legislators from arrest and denial of opportunity to represent their constituency in the legislature.  What Dr. Gopal is saying is that people like DMK leaders Kanimozhi or A. Raja should have been allowed to attend Parliament while in judicial custody or should have been released from jail.

It is notable that the courts did not grant bail to the accused for fear that they would interfere with the investigation and influence witnesses.  Suppose that R. Balakrishna Pillai who was condemned to undergo one year’s imprisonment was a member of the Assembly. What would be the justification for sending him out of jail to attend an Assembly session?  We know that it is difficult to successfully prosecute a politician in India and even if he is sentenced, it has been found to be difficult to keep him in prison.

Dr.Gopal’s argument is that legislators represent the people and their voice should be heard in the legislature. Well, people elect politicians despite their knowing about their criminal background. Doesn’t that mean that they want criminals to represent them? If we accept that argument, it would undermine basic tenets of rule of law.

Then, why do people elect criminals? Dr. Gopal said that legislatures and judiciary exercising power to punish for contempt was a result of feudal and colonial mindset.  In India, many are still to imbibe the concept that all are equal below the law.  The caste system, which prescribed differential punishment for the same crime depending on caste and the principle of dynastic succession still influence Indians. That is why they countenance and make arguments in favour the like of Kanimozhi.

Even six decades after independence, we have not freed ourselves of feudal, colonial and casteist mentalities and related belief in merit of dynastic succession.

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