Kochi | The Kerala High Court on Monday permitted a BJP councillor of the Thiruvananthapuram Corporation, who is under preventive detention under KAAPA, to take the oath of office inside jail, observing that the people's mandate could not be defeated by a procedural lapse.
Justice P V Kunhikrishnan passed the order on a petition filed by BJP councillor Sugathan R, who was elected from the Vazhottukonam ward of the Thiruvananthapuram Corporation.
Last month, the High Court had directed 20 BJP councillors of the Corporation to retake their oath after holding that the oath administered earlier did not conform to the format prescribed under law.
Subsequently, Sugathan became involved in two criminal cases and was granted interim bail by the Judicial First Class Magistrate Court-II, Nedumangad, to enable him to take the fresh oath, which was scheduled to be administered at the Corporation office on July 14.
However, he was detained under the Kerala Anti-Social Activities (Prevention) Act, preventing him from attending the programme.
During the hearing, the Director General of Prosecution (DGP) submitted that since the petitioner was under preventive detention, he could not be released from jail.
He referred to Article 22(3) of the Constitution, under which the safeguards contained in Article 22(1) and Article 22(2) do not apply to persons under preventive detention.
The DGP, however, submitted that if the court so directed, the state was prepared to make the necessary arrangements for the petitioner to take the oath inside the jail.
The court noted that when the matter came up earlier, it had directed the DGP to examine whether arrangements could be made for the swearing-in ceremony inside the prison after it was informed that the petitioner's failure to take the oath could affect the majority of the present ruling side in the Corporation.
The court observed that it neither conceived nor intended to massacre democracy; rather, its directions were issued in keeping with the constitutional mandate to preserve and strengthen the rule of law.
"Democracy, as envisaged under the Constitution, is not a mere majoritarian exercise, but a structured process governed by established procedures and normative principles. Therefore, this Court issued directions to see that the democratic process is conducted in a manner consistent with constitutional discipline, institutional integrity and the fundamental value of democracy," the court said.
Referring to the present case, the court observed: "In this case, if the petitioner is not allowed to take the oath, serious consequences will follow. When the very pulse of democracy is made to collapse over a solitary, disputed oath, the duty of this Court is to uphold democracy."
"The Court's intention is only to ensure that the democratic procedures are strictly followed. But the people's mandate cannot be massacred by a procedural lapse," it added.
The court noted that the petitioner had accepted the earlier judgment directing him to retake the oath and observed that the situation required an exceptional remedy.
"Then what is the remedy? When extraordinary situations arise, this court must take extraordinary decisions to protect democratic principles and the people's mandate," the court said.
Holding that the petitioner should be permitted to take the oath inside the prison, the court directed the Superintendent of the Central Prison and Correctional Home, Viyyur, to make the necessary arrangements for the swearing-in ceremony on July 14 at 11 am.
The court directed that the Mayor of Thiruvananthapuram and the minimum required officers of the Corporation be permitted to enter the prison to complete the procedure.
Noting that the swearing-in of a councillor forms part of the democratic process, the court directed that accredited media persons be allowed to cover the ceremony inside the prison.