[Remarks against Constitution] Kerala High Court seeks State's response on plea to disqualify MLA Saji Cherian

The Kerala High Court on Wednesday sought the State Government's response on a plea which 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 directed the Government Pleader to file a statement.On Tuesday, the bench had prima facie opined that the provisions of Article 173(a) which deals with qualifications for MLAs may not be applicable."Inasmuch as, the said provision deals with qualification for membership of State Legislature and in the case on hand, being qualified, Mr. Saji Cherian, the 4th respondent, had already been elected as a member of the State Legislature, prima facie, we are of the view that the said Constitutional provision may not be applicable," the order stated.However, it said that it needs to look into whether the speech made by Cherian would attract disqualification under Article 188 (oath of affirmation by MLA)."Inasmuch that Article 188 is also referred to in Schedule III of the Constitution of India, we are of the view that the statement or speech made by Mr. Saji Cherian, the 4th respondent, would attract disqualification of being a member of the Assembly, has to be gone into," the Court said in its order..The Court was considering petition which 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.Cherian has been in hot water since 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 has clearly violated Article 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 is 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..The matter will be considered next on August 2. .[Read Order]