In the Supreme Court, while defending the Kerala legislators who had ravaged the Assembly on Budget Day in 2015, Kerala government's senior counsel Ranjit Kumar did the equivalent of making an elephant vanish from the stage.

The counsel used legal abracadabra to demonstrate that the biggest piece of evidence against the legislators, the video footage of them in destructive mode, was no evidence at all. But the Supreme Court bench of Justice Dhananjaya Y Chandrachud and M R Shah had a neutralising magic on offer. The judges used the very same legal abracadabra to turn Ranjit's arguments into ash.

Kerala's counsel first said that legislators enjoyed immunity for all that they said and did inside the Assembly. The immunity flows from Article 194(1) of the Constitution, which assures freedom of speech in the Legislature.

But his trick relied more on Clause 2 of Article 194. This clause says that no legal action could be initiated against an MLA (or MP) on the basis of any publication (in newspapers or television or radio) related to the proceedings of the House made with the approval of the House. In other words, if visuals of Assembly proceedings are aired with the Speaker's permission, anything shown in them could not be legally used against the legislator.

Speaker: Double-edged sword
Ranjit differentiated between two kinds of video footage used against the legislators, and why they cannot be used as evidence. The first was the video recording of the incidents that was procured by the investigating authorities from the Electronic Control Room of the House. The other was the footage of pandemonium aired by news channels.

The first, he said, belonged to the House and was secured by the investigators without the consent of the Speaker and, therefore, could not be legally admitted as evidence.

He used the reverse logic for the other type of evidence, visuals aired by news channels. He said they were recorded with the Speaker's consent and so, according to Clause 2 of Article 194, could not be used against his clients.

In 2002, Kerala Assembly issued instructions on Broadcasting and Telecasting of Governor’s Address and Assembly Proceedings under which Assembly proceedings could be broadcast after the Speaker grants consent for recording.

Both proofs, in effect, were non-existent. "Without the video recording, there is insufficient evidence available with the prosecution to succeed," he declared.

News channel violations trap MLAs
The Supreme Court but used the very same legal points to nullify the Kerala counsel's logic.

Take the footage of news channels. The Supreme Court said in ordinary cases if news channels had broadcast visuals of Assembly proceedings it would be with the sanction of the Speaker. Consequently, as the Kerala counsel argued, this would grant legislators immunity.

But there is a catch. "Clause 7 of the 2002 Instructions denies permission to record any interruption/disorder during the address," the Supreme Court order said.

Here is what Clause 7 says: "Cameras should not record any interruption/disorder or walkout during the Address. In case of any such eventuality the cameras shall be focussed only on the dignitary."

Evidently, on March 13, 2015, when LDF legislators went berserk inside the Assembly, channels permitted to record Budget Day proceedings neither stopped recording nor focussed their cameras on any dignitary. This minor violation of news channels, interestingly, deprived legislators of their immunity.

The Supreme Court said this recording, because it violated the 2002 Instructions, was not a recording ‘under the authority of the House’. "When the recording of such an incident is itself without authority, the publication/broadcasting of it would also have no authority of the House," the court order said.

Since these publications did not have the authority of the House, the court ruled that it did not provide legislators any immunity.

Other side of the argument
In the case of the second type of evidence, the footage secured from the Electronic Control Room of the Assembly, the argument employed by the Kerala counsel was flipped to put the legislators in the dock.

The Kerala counsel argued that this footage was secured without the Speaker's consent and so lacked certification under Section 65B of the Indian Evidence Act 1872. The Supreme Court said that since the Speaker had not given his consent, the in-House footage was not broadcast, "or in other words, published, for dissemination to the public."

Only published footage, and not anything kept idle, gave legislators immunity. "Since it was not a 'publication of the House', it does not enjoy the protection of immunity under Article 194(2) of the Constitution," the Supreme Court ruled.

Differently put, investigators can take action on the basis of this footage.