Kerala High Court orders probe into remarks against Constitution by CPI(M) MLA Saji Cherian

The Kerala High Court on Thursday ordered further investigation into remarks made by the State Minister for Fisheries, Culture and Youth Affairs, Saji Cherian which allegedly disrespected the Constitution of India [Adv. M Baiju Noel v. Additional Chief Secretary & Ors.]..Justice Bechu Kurian Thomas today ordered the State Crime Branch to conduct a further probe into the remarks made by the CPI (M) Member of Legislative Assembly (MLA)."This Court has already found that a further investigation is required, and since the accused is a Minister of the State, the investigation by the Station House Officer will not suffice and a superior agency is required. The further investigation hence ought to be conducted by the State Crime Branch. Accordingly, further investigation is ordered into Crime No.600/2022, which shall be conducted by the State Crime Branch. The State Police Chief shall immediately pass orders handing over the investigation to the State Crime Branch with an officer of integrity to lead the investigation. Needless to mention, the investigation shall be completed without undue delay," the Court ordered. .In 2022, 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 from his post as the State Minister for Fisheries, Culture and Youth Affairs.In December, 2022, the Kerala High Court dismissed a plea that sought his disqualification as an MLA. In 2023, he was reinstated to the post amidst some furore..The judgment pronounced today was passed on a new petition moved by a lawyer practicing before the High Court, advocate M Baiju Noel.In his petition, Noel contended that Cherian made highly derogatory and insulting remarks against the Constitution of India with a deliberate intention to ridicule and insult the Constitution in public view. He argued that such an act is punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971 (the Act). After the incident, Noel filed a complaint before the Police and later before a Magistrate Court. The latter complaint led to the registration of an FIR against Cherian. The final report filed by the Investigating Officer before the Magistrate Court said that further proceedings were being dropped as it was found that Cherian had no intention to disrespect the Constitution. The Magistrate Court subsequently dismissed a petition moved by Noel to reject the report and direct further investigation. This prompted Noel to move the High Court seeking to quash the final report as well as the order of the Magistrate..Appearing in-person, Noel argued that the investigating officer had all but abdicated his constitutional obligation to conduct a fair and proper investigation.He also submitted the final report was filed even before receiving the forensic report of the audio and video recordings of the speech.Noel contended that a fresh investigation by the Central Bureau of Investigation (CBI) would be necessary as Cherian is an influential figure in the State. .Director General of Prosecution and Senior Advocate TA Shaji opposed Noel's petition arguing that the controversial speech only indicated the difficulties faced by the public and not an intentional insult. He also submitted that the investigating officer had obtained the opinion of the District Public Prosecutor before filing the final report..The Court, however, failed to find merit in the stance of the prosecution. It noted that Section 2 of the 1971 Act excludes criticism of the Constitution only if it is for the purpose of obtaining an amendment of the Constitution by lawful means. Considering the fact that the speech was not given in any such circumstance, the exception would not apply, the Court said.It also noted that the words used in the speech ('kuntham' and 'kodachakram' which literally translated from Malayalam means spear and firecracker), when used colloquially, is usually not considered respectful. Cherian's reference to the Constitution as the “ideal Constitution to loot the people” also caught the attention of the Court. In such circumstances, the conclusion of the investigating officer that there was no intention to disrespect the Constitution cannot stand, the Court said."When the statutory intention is explicit that no member of the public shall disrespect the Constitution, and when the words themselves can manifest the intention, the conclusion of the Investigating Officer is not legally tenable. Even otherwise, when the words used are not respectful, the surrounding circumstances are necessary to conclude whether they were used disrespectfully or not," the Court said. .It also noted that the final report dropping all further action was filed before receiving a forensic report on Cherian's speech. Moreover, the statements of media persons who viewed and published the speech were not taken either. Only statements of persons who attended the meeting were taken, the Court found. "The statements of those witnesses who attended the meeting are likely to have been prejudiced due to their affiliation to the political party. Hence relying only on those statements would not amount to a fair investigation," the Court added. .Under these circumstances, the Court deemed it appropriate to set aside the final report as well as the Magistrate Court's order, and ordered further investigation by the State Crime Branch. .[Read Judgment]