Kochi: The Kerala High Court on Monday permitted a BJP councillor of the Thiruvananthapuram Corporation, who is under preventive detention under the Kerala Anti-Social Activities (Prevention) Act (KAAPA), to take the oath of office inside prison, 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.

The court directed that the swearing-in ceremony be held at the Central Prison and Correctional Home, Viyyur, on July 14 at 11 am.

The development follows the High Court's order last month directing 20 BJP councillors of the Corporation to retake their oath after ruling that the earlier oath had not been administered in the format prescribed under law.

After that order, Sugathan became involved in two criminal cases. The Judicial First Class Magistrate Court-II, Nedumangad, granted him interim bail to enable him to take the fresh oath at the Corporation office on July 14.

Before the ceremony could take place, however, he was detained under KAAPA, making it impossible for him to attend the programme.

During the hearing, the Director General of Prosecution (DGP) submitted that the petitioner could not be released because he was under preventive detention. Referring to Article 22(3) of the Constitution, the DGP argued that the safeguards under Article 22(1) and Article 22(2) do not apply to persons held under preventive detention.

The DGP, however, informed the court that if directed, the state was prepared to make the necessary arrangements for the petitioner to take the oath inside the prison.

'People's mandate cannot be defeated by procedural lapse'

The court noted that, during an earlier hearing, it had asked the DGP to examine whether the oath-taking could be conducted inside the jail after being informed that the petitioner's inability to take the oath could affect the majority of the current ruling side in the Corporation.

Clarifying its earlier directions, the court said it had acted to uphold constitutional principles and not to undermine democracy.

"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 observed.

Referring specifically to the case, the court said, "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 also noted that the petitioner had accepted the earlier judgment directing him to retake the oath and said the circumstances warranted an exceptional remedy.

"When extraordinary situations arise, this court must take extraordinary decisions to protect democratic principles and the people's mandate," it observed.

Oath ceremony to be held inside prison

Allowing the plea, the High Court directed the Superintendent of the Central Prison and Correctional Home, Viyyur, to make the necessary arrangements for the swearing-in ceremony.

It also ordered that the Mayor of Thiruvananthapuram and the minimum number of Corporation officials required to complete the process be permitted to enter the prison.

Observing that the swearing-in of an elected councillor forms part of the democratic process, the court further directed that accredited media personnel be allowed inside the prison to cover the ceremony.