M.K.Stalin vs The Speaker

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 14.8.2020 & 21.8.2020

DELIVERED ON : 25.8.2020

CORAM :

THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY

W.P.Nos.24156, 24157, 24159 to 24171 and 24173 to 24176 of 2017 and W.M.P.Nos.29458, 25527, 25534, 25495 to 25497, 25500 to 25517, 25519 to 25525, 25528 to 25532, 25518, 25533, 25535, 29445 to 29446, 29448 to 29457, 29459 to 29460, 29462 to 29465 of 2017

W.P.No.24156 of 2017

M.K.Stalin ... Petitioner vs.

1.The Speaker, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009.

2.The Secretary, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009.

3.Privileges Committee, Rep. by its Chairman, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009.

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4.V.Jayaraman Chairman, Privileges Committee, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009. ... Respondents

and batch cases.

For Petitioner in : Mr.R.Shanmughasundaram W.P.No.24156 of 2017 Senior Counsel for M/s.R.Girirajan and S.Manuraj

For Petitioners in : Mr.N.R.Elango W.P.Nos.24157, 24159, Senior Counsel 24160, 24162 to 24167, for M/s.R.Neelakandan 24169 to 24171, 24173 R.Girirajan, P.Muthukumar to 24176 of 2017 and S.Manuraj

For Petitioner in : Mr.Amit Anand Tiwari W.P.No.24168 of 2017 assisted by Mr.S.Mahesh Sahasranaman and Ms.Devyani Gupta for M/s.R.Neelakandan and P.Muthukumar

For Petitioner in : Mr.B.Harikrishnan W.P.No.24161 of 2017

For 2nd respondent in : Mr.Vijay Narayan W.P.Nos.24159 to Advocate General 24171 and 24173 to assisted by 24176 of 2017 Mr.S.R.Rajagopal, AAG-VI assisted by Mr.V.Jayaprakash Narayanan, State Govt. Pleader

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For respondents 3 and 4 : Mr.A.L.Somayaji in W.P.Nos.24159 to Special Senior Counsel 24171 and 24173 to assisted by 24176 of 2017 Mr.K.Gowtham Kumar

COMMON ORDER

THE HON'BLE CHIEF JUSTICE

Twenty-one Members of the Opposition in the Tamil Nadu

Legislative Assembly representing the DMK Party were put to notice

by the Speaker for having allegedly breached the privilege of the

House while conducting themselves on 19.7.2017, when they raised

an issue of accountability of the Government regarding flourishing

of the unlawful banned trade of Gutkha in the State by physically

displaying Gutkha sachets as well as photographs of certain shops

where such items were being sold. It is the case of the petitioners

that the sachets and photographs were exhibited in order to

emphasize and impress upon the House as well as the Treasury

Benches that action deserved to be taken, as the trade was being

negotiated in the State of Tamil Nadu under the shadow of a

particular Minister of the Government as well as high administrative

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officials, who were actively involved in the abetment of such

unlawful trade.

2. It is their contention that no immediate action was either

proposed or taken, but the incident dated 18.2.2017 and 22.8.2017

that had created a turmoil within the Ruling Party, prompted the

Speaker to mala fidely issue the notices dated 28.8.2017 that are

impugned in the writ petitions. The allegation is that on 22.8.2017,

18 MLAs of the Ruling Party, namely, AIADMK, submitted a

memorandum to His Excellency the Governor informing him about

withdrawing support to the Government headed by the Chief

Minister, Mr.Edappadi K.Palaniswami. On 24.8.2017, the Chief

Whip of the Government tendered a petition before the Speaker

alleging disqualification, on which the Speaker issued notices to all

the 18 MLAs. This was followed by a letter written by the Leader

of Opposition, Mr.M.K.Stalin, requesting the Governor to direct the

Chief Minister to prove his majority on the floor of the House in view

of the aforesaid developments.

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3. The Speaker called for a meeting of the Privileges

Committee on 28.8.2017 alleging breach of privilege of the House in

respect of the incident referred to above on 19.7.2017, when the

petitioners are alleged to have carried with them and displayed

Gutkha sachets as well as photographs of the shops that had

indulged in selling such banned items. On the very same day, the

notices were issued to all the 21 DMK MLAs, whereupon the present

writ petitions came to be instituted on 5.9.2017.

4. An interim order was passed by the High Court on 7.9.2017

restraining the Chairman of the Privileges Committee, namely the

Deputy Speaker, third respondent herein, not to pass any order in

respect of the impugned notices.

5. The Opposition DMK party moved the High Court through a

separate petition seeking a direction for a trust vote, and on

18.9.2017 itself the Speaker disqualified 18 MLAs of the AIADMK

party under the Tenth Schedule to the Constitution of India. The

said disqualified MLAs filed their own writ petitions. When a

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Division Bench, on a split view taken, referred the matter to a third

Judge, the disqualifications were upheld by a majority of 2:1.

6. The issue raised with regard to the Gutkha scam and the

criminal proceedings relating thereto came to be heard by a Division

Bench of this Court, where the investigation was transferred to the

Central Bureau of Investigation by the order of the High Court on

26.4.2018. The said judgment was assailed before the Apex Court

and was upheld by the Supreme Court in E.Sivakumar v. Union of

India, (2018) 7 SCC 365. The officials of the Central Bureau of

Investigation raided 40 places, including the premises of the Health

Minister and the Director General of Police and the said proceedings

are on.

7. It is in this background that a mention was made by the

learned Advocate General, Government of Tamil Nadu to hear these

petitions, as they have been pending for almost three years with an

interim order operating in favour of the petitioners.

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SUBMISSIONS:

8.1. Mr.R.Shanmughasundaram, learned Senior Counsel for

the petitioners has advanced his submissions contending that the

issuance of the impugned notices itself suffers from patent lack of

jurisdiction and is inherently illegal, and therefore, the same

deserves to be interfered with in the exercise of the power of

judicial review by this Court under Article 226 of the Constitution of

India, in as much as the very initiation of the proceedings is

motivated by mala fides in the background above, when the

Government was facing a trust motion with 18 disqualified MLAs.

8.2. He submits that it was in order to offset the balance by

taking action against 21 MLAs of the Opposition, that the strength

of the Ruling Party was sought to be restored as its status stood

reduced to that of a minority government. The privilege motion

notices were issued during the said period to the petitioners so as to

somehow or the other prevent them from participating in the

proceedings, either by way of suspending them or taking such

action by curtailing their liberty to participate in the proceedings of

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the House, and consequently save the minority government from

failing in the trust vote which was imminent.

8.3. He then contends that mandatory procedures having

been grossly violated, the initiation of the notice itself was invalid

and, therefore, the respondents cannot be permitted to proceed on

the basis of such a notice. He contends that, as a matter of fact,

the alleged incident of 19.7.2017 was in the view of the House and,

therefore, the Speaker ought to have immediately placed the

matter for discussion, as it would have precedence over any other

subject matter, yet on the date of the incident, the Speaker did not

choose to do so in spite of that mandate being available in

Paragraph 46 of the Practice and Procedure Manual adopted by the

Tamil Nadu Legislative Assembly. Even otherwise, there was no

cause for any breach of privilege, as all the 21 DMK MLAs were

focusing on a major issue of mal-governance and they never

intended to bring any disrepute either to the Chair or to the House.

In all fairness, it was a criticism of the functioning of the

Government, which ultimately had resulted in criminal prosecution

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and the matter being investigated by the Central Bureau of

Investigation, as it was a huge scam, and therefore to construe it as

an act of breach of privilege was preposterous.

8.4. It is then urged that the Speaker himself had already

disclosed his mind in the proceedings dated 19.7.2017 itself that he

considered the act of the 21 DMK MLAs to be an act of breach of

privilege and had also assured taking of action. This, according to

Mr.Shanmunghasundaram, is an open declaration of the view of the

Speaker himself, which was designed to indict 21 DMK MLAs and did

not leave any manner of doubt that the Speaker was determined to

get the 21 DMK MLAs punished for breach of privilege. He submits

that such a mandate already pronounced in the Open House

coupled with the suo motu exercise of power under Rule 226 of the

Tamil Nadu Legislative Assembly Rules was clearly contrary to the

settled conventions of the House, in as much as the issue ought to

have been placed before the House then and there, but the Speaker

after having taken a decision straightaway, proceeded to send it to

the Privileges Committee that was absolutely uncalled for. With this

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predetermined move, a complete bias was reflected in the mala fide

action taken against the 21 DMK MLAs, and that too even before a

Privileges Committee that was constituted of members who were

interested in the subject matter. He, therefore, contends that with

such a composition of the Privileges Committee and with an

imminently prejudged issue, there was no other option left to the

21 DMK MLAs except to challenge the notices impugned herein.

8.5. He has then submitted that the State Government had

issued a notification on 23.5.2017 keeping in view the ill-effects of

Gutkha being reported everyday, whereby the manufacture,

storage, transport, distribution and sale of Gutkha was prohibited.

The 21 DMK MLAs had raised the issue because in spite of this ban,

Gutkha was being freely sold throughout the State of Tamil Nadu,

but instead of appropriate action being taken, the Government was

resisting the same and to the contrary while issuing the privilege

notices to 21 DMK MLAs, made it a ground that 21 DMK MLAs had

violated the said prohibitory notification by carrying with them

Gutkha sachets inside the House. For this, the privilege notice

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appears to have taken recourse to items which are not permitted to

be brought inside the House, including items prohibited by law.

Thus, the democratic exercise of freedom of speech by 21 DMK

MLAs by virtue of they being the Members of the Legislative

Assembly in exposing mal-governance of the Government by

displaying Gutkha sachets was converted into an excuse for breach

of privilege.

8.6. Mr.Shanmughasundaram submits that the action was

completely empty of any legal formality and was clearly designed at

the juncture when the Government was facing a trust motion and

was falling short of MLAs to prove its majority. It, therefore, tried

to reduce the majority of the Opposition by issuing a privilege

notice calculatively to 21 MLAs.

8.7. He then invited the attention of the Court to the

Speaker's statement in the House on the said day that had the 21

DMK MLAs taken permission from him, probably things would have

been otherwise, and submitted that it is not understandable that if

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on the one hand Gutkha was a prohibited item and had been

unlawfully displayed by the 21 DMK MLAs, then how could

permission be granted by the Speaker to display a prohibited item.

Taking advantage of this narrative in the Speaker's statement,

Mr.Shanmughasundaram submits that neither does the notification

dated 23.5.2017 prohibit the possession of Gutkha sachets for

display in the Assembly, nor does it amount to an offence either

relating to storage, transportation or sale of Gutkha by 21 DMK

MLAs. Thus, even otherwise, the said display cannot be said to be

a display of an item that has been prohibited to be displayed inside

the House.

8.8. He then submits that the intention of the 21 DMK MLAs

was only to inform the House that Gutkha is being made available

freely and it was not intended for any other purpose that can even

remotely lead to the conclusion that such a conduct amounted to an

offence under the notification dated 23.5.2017. In essence, his

contention is that Gutkha had been brought in, which in the above

circumstances was not an item prohibited in law. He has buttressed

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his submission by citing the decision in the case of Bijaya Kumar

Agarwala v. State of Orissa and others, (1996) 5 SCC 1,

paragraphs (11) to (18), where in paragraph (18), the Apex Court

relied on a judgment of the Orissa High Court to hold that all

possession is not storage while delving into the meaning of the

word “storage”. It is urged by Mr.Shanmughasundaram that the

possession of Gutkha by the petitioners was not for consumption,

which is the intention of prohibition and ban imposed under the

notification dated 23.5.2017. Thus, the possession was neither

storage, nor was a transportation, nor intended to be utilized

contrary to the ban imposed under the said notification.

8.9. He has then urged that Article 194 read with Article 212

of the Constitution of India does not in any way restrict the powers

of this Court to enter into the issue of a privilege notice issued,

which is otherwise patently illegal, unsupported by law and is

malicious. While explaining as to why this Court should interfere

under Article 226 of the Constitution of India, he has cited three

decisions, namely Powers, Privileges and Immunities of State

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Legislatures, Re., Special Reference No.1 of 1964, AIR 1965

SC 745, more popularly known as Keshav Singh's case and he

has relied on paragraph (61) for the said purpose. He has then

cited the judgment in the case of Kihoto Hollohan v. Zachillhu,

1992 Supp (2) SCC 651, paragraphs 94 to 97, 111 and 143 to

148 to further his submissions. The third decision relied on by him

is in the case of Rojer Mathew v. South Indian Bank Ltd. and

others, 2019 SCC Online SC 1456, paragraphs 64 to 67, 70 to

72 and 83 to 106.

8.10. While defending the challenge raised to the notice, he

submits the principle of Quia timet will not be a bar to the

maintenance of the writ petition at this stage in view of the fact that

the entire action is tainted with mala fides, gross illegalities and

unconstitutionality, violating fundamental rights of the 21 DMK

MLAs enshrined under Articles 14, 19 and 21 of the Constitution of

India.

9.1. The arguments of Mr.R.Shanmughasundaram have been

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supplemented by Mr.N.R.Elango, learned Senior Counsel, who

submits that in the aforesaid background it is evident that the

Speaker has not played a non partisan and impartial role, and

rather he has acted solely for the benefits of the Ruling Party in the

Government, which makes his role entirely questionable and reflects

clear mala fides on his part.

9.2. He has adopted the arguments of

Mr.Shanmughasundaram and in addition thereto he submits that

instead of entrusting the matter to the House itself on the very

same day, the exercise is only with a view to identify the MLAs by

making a reference to the Privileges Committee, which is not the

purpose of any alleged conduct of breach of privilege. He submits

that as a matter of fact there was no such breach and in view of the

substantive illegality, as already pointed out, this is not a case of

mere procedural irregularity, but a clear unconstitutional act on the

part of the Speaker which deserves to be interfered with through

judicial review.

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9.3. Advancing his submissions, he has invited the attention

of the Court to the case in Raja Ram Pal v. Hon'ble Speaker,

Lok Sabha and others, (2007) 3 SCC 184 to urge that the said

case has also dealt with as to what is a privilege and also as to how

far judicial review is permissible in such matters. He has invited the

attention of the Court to paragraphs 360, 362, 377, 384, 386, 398,

417 and 431 of the said reported decision in aid of his submissions.

9.4. He has then urged that the Leader of the Opposition,

Mr.M.K.Stalin, had risen to speak by making a statement on an

issue that was relevant to the context and has conducted himself in

an absolutely parliamentary way, but to the contrary, he had been

interrupted several times calling upon him to sit down and was not

being allowed to speak on the issue.

9.5. It is also urged by Mr.N.R.Elango that if the Rules of

Procedure of the Legislative Assembly require a procedure to be

followed in a matter of breach of privilege, then it should have been

done in that manner alone and no other, for which he relies on the

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decision in the case of Nazir Ahmad v. King Emperor, AIR 1936

PC 253 and the judgment in the case of Babu Verghese and

others v. State of Kerala and others, (1999) 3 SCC 422.

9.6. He contends that neither Article 194, nor Article 212, nor

any of the decisions do raise a doubt about the maintainability of

the writ petitions that have been filed challenging the impugned

notices, which are invalid on all scores.

9.7. While referring to paragraph 111 of the judgment in the

case of Kihoto Hollohan (supra), he contends that the same is in

the context of Tenth Schedule to the Constitution of India and,

therefore, the bar expressed therein would not apply in the present

context, where the entire issuance of notice is without jurisdiction.

He has further illustrated his argument by contending that a breach

of privilege can be brought against in broadly three situations,

namely (i) where a non Member of the House commits a breach

outside the House; (ii) where a Member of the Assembly commits

any alleged breach outside the House; and (iii) where a Member

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allegedly commits a breach inside the House. He submits that none

of these contingencies exist in the present case, as has been

demonstrated with the aid of various paragraphs of the affidavits

exchanged between the parties to urge that there was no intention,

nor any act or conduct on the part of the 21 DMK MLAs so as to

bring any prohibited item inside the House and thereby commit

breach of privilege.

10.1. Mr.Amit Anand Tiwari, learned counsel for the petitioner

in W.P.No.24168 of 2017 submits that the act of the Speaker being

without jurisdiction in view of Paragraph 46 of the Practice and

Procedure of Tamil Nadu Legislative Assembly read with proviso to

Rule 221 of the Tamil Nadu Legislative Assembly Rules, clearly

establishes that the Speaker could not have made any reference to

the Privileges Committee. He submits that whatever alleged breach

is said to have occurred was in the view of the entire House and,

therefore, it was only the House that could have taken up the

matter immediately, for which there was no reason or occasion for a

reference to the Privileges Committee that too after 45 days of the

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occurrence. He submits that the mala fide reason for sending it to

the Privileges Committee after such a long time has already been

argued by his predecessors, which he adopts.

10.2. Adding to the submissions raised by the other counsel,

he submits that the Speaker while announcing his decision has

virtually given a ruling which has been recorded in the Minutes of

Proceedings No.37 of 19.7.2017, clearly stating that the matter is

being referred as it is a breach of privilege to bring and exhibit

prohibited items inside the Legislative Assembly. This amounts to a

prejudging of the issue and creates an adverse impact on the

Committee of Privileges.

10.3. He has then cited the Full Bench judgment of this Court

in the case of S.Balasubramanian v. State of Tamil Nadu, 1994

(2) LW 424 (Mad), paragraphs 22 to 24, to contend that once the

Speaker had already taken a decision and had announced that the

21 DMK MLAs were guilty of breach of privilege, then there was no

occasion to take recourse to Rule 226 of the Tamil Nadu Legislative

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Assembly Rules for sending it to the Privileges Committee.

10.4. Mr.Tiwari had then argued that since the invalidity and

the mala fides as well as the gross illegalities are established, they

constitute a fundamental error and hence interference is warranted

and would not be subject to the principle of Quia timet as indicated

in Kihoto Hollohan (supra).

10.5. He submits that such a notice can be challenged and he

has also invited the attention of the Court to Rule 228 of the Tamil

Nadu Legislative Assembly Rules to contend that there being a clear

violation thereof, the matter can be entertained by this Court under

Article 226 of the Constitution of India.

10.6. To support his submission about the maintainability of

the writ petition, he has cited the judgment in the case of

Lokayukta, Justice Ripusudan Dayal (Retired) and others v.

State of Madhya Pradesh and others, (2014) 4 SCC 473,

paragraphs 35 to 42, to urge that in that case it was categorically

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held that writ petition under Article 32 of the Constitution of India

before the Apex Court was maintainable keeping in view the fact

that the petitioners therein could not have effectively challenged the

issuance of the privilege motion notice issued by the Speaker of the

Madhya Pradesh Legislative Assembly.

10.7. He has then supported his submission by the decision of

Raja Ram Pal (supra), more particularly paragraph 431, to

contend that where there are fundamental breaches of law,

violation of constitutional rights, as well as fundamental rights, then

a writ petition would be maintainable and hence the said contention

carries weight and deserves to be accepted by this Court.

10.8. He submits that lack of opportunity is clearly made out,

as had the matter been entrusted to the House to proceed with the

privilege notices issued, the 21 DMK MLAs would have had an

opportunity to explain their conduct to the House itself and,

therefore, this opportunity having been taken away, the principles

of natural justice have been violated, thereby rendering the

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impugned notice invalid on the anvil of Article 14 of the Constitution

of India. For this, he has invited the attention of the Court to

paragraph (14) of the writ petition that such a foundation has been

laid in the petition itself.

10.9. He then contends that the fundamental right to address

the House has been taken away, thereby breaching Article 19(1)(a)

of the Constitution of India that guarantees freedom of speech. In

view of the provisions of Article 194 read with Article 212 of the

Constitution of India, any proceedings inside the House are

protected. For this, he submits that the decision of the Speaker to

issue a notice is also perverse, as he has treated the display of

Gutkha sachets to be an act in violation of the prohibition imposed

by the notification dated 23.5.2017, whereas there is no violation

made out by the conduct of the 21 DMK MLAs. He submits that the

manner in which the Rules have been thrown overboard by the

Speaker are not mere irregularities of procedure, but they are

patent illegalities, for which he has relied on the judgment in the

case of Rojer Mathew (supra), more particularly paragraph 304

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thereof.

10.10. He submits that tainted mala fides amount to illegality

and even otherwise, if the established Rules of Practice and

Procedure have been violated, the same amounts to violation of the

constitutional procedure and established conventions and,

therefore, the action of issuing the notice is vitiated. For this

proposition that the Practice and Procedure has taken a shape of

permanent lawful conventions and is a constitutional mandate, he

has relied on the following judgments: (i) Supreme Court

Advocates-on-Record Association and others v. Union of

India, (1993) 4 SCC 441, paragraphs 340, 341, 345, 346, 351,

353 and 357; (ii) S.R.Bommai and others v. Union of India and

others, (1994) 3 SCC 1, paragraphs 230 to 232, and (iii)

K.Lakshminarayanan v. Union of India, 2018 SCC Online SC

2730.

10.11. He has then contended that Rule 226 even though

begins with a non-obstante clause, it is circumscribed by the

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Practice and Procedure of the Assembly as contained in paragraph

46 of the Hand Book of Practice and Procedure, where the words

used are that where a breach is alleged to have been committed in

the view of the House, then the same shall be discussed by the

House itself and there was no occasion to have referred the matter

to the Privileges Committee, that too after 45 days of the incident.

10.12. He has then advanced his argument by adopting the

illustration given by Mr.N.R.Elango that broadly in three situations a

breach of privilege can be alleged and he submits that it is only in

the third situation where a Member of the House allegedly commits

a breach inside the House that such a motion can be undertaken

and which obviously would be circumscribed by the Rules and

governed by them only. To explain this, he submits that so far as

Rule 226 is concerned, the same can be clearly attracted in a case

of non Member or a Member of the House committing a breach

outside the House, but when the Member commits a breach inside

the House, then Rule 226 has to be read conjointly with Paragraph

46 of the Practice and procedure of the Tamil Nadu Legislative

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Assembly, which he submits if read together with Rule 220 of the

Rules would make it clear that the matter ought to have been dealt

with by the House itself instead of sending it to the Privileges

Committee.

10.13. He has also adopted the same arguments about the

meeting having been convened that was attended by interested

persons and submits that, therefore, the meeting which resulted in

the issuance of the notice was clearly tainted.

10.14. He has also urged that the word “transportation”

occurring in the notification dated 23.5.2017 has to be read

ejusdem generis, by correlating it to the words used in the statute

and not beyond the same.

10.15. Mr.Amit Anand Tiwari continued his submissions urging

that the action of the Speaker on 19.7.2017 was actuated by mala

fide intentions. Secondly, the action of the Privileges Committee in

issuing the notice subsequently on 28.8.2017 was also actuated by

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mala fides inasmuch as the AIADMK Party was in danger of loosing

its majority status in the legislative assembly as on that date. In

support of the submission that the Speaker cannot exercise

jurisdiction under Rule 226 of the Tamil Nadu Legislative Assembly

Rules, he referred to and relied upon the Full Bench judgment of

this Court in C.Subramaniam v. The Hon'ble Speaker, AIR

1969 Madras 10. In particular, he adverted to paragraphs 3, 5, 6

and 24 of the said judgment and contended that the Full Bench of

this Court concluded that once the Speaker decided that the

publication of the cartoon amounted to a breach of privilege, he was

no longer entitled to exercise suo motu power under Rule 226 of the

Tamil Nadu Legislative Assembly Rules to refer the matter to the

Privileges Committee. He summarized his contentions, in

conclusion, as herein under.

10.16. The power of judicial review is wide enough to enable

interference with the action of the Speaker in referring alleged

breach of privilege to the Privileges Committee. This is clear from

paragraph 431 of the Judgment of the Hon'ble Supreme Court in

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Raja Ram Pal (supra). The reference is vitiated not only by a

jurisdictional error but also by both personal and subject matter

mala fide and bias. He reiterated that the fourth respondent had

filed a defamation suit against Mr.M.K.Stalin and that

Mr.O.Panneerselvam, who is the Member of the reconstituted

Privileges Committee, has a personal grievance against the

Petitioners on account of the cases filed by the petitioners.

11. Mr.N.R.Elango, learned Senior Counsel supplemented his

earlier contentions by referring to the judgment of the Hon'ble

Supreme Court in case of Mohinder Singh Gill and another v.

The Chief Election Commissioner and others, (1978) 1 SCC

405 to emphasize that the minutes of the proceedings of the House

dated 19.7.2017 and the notice of the Privileges Committee dated

28.8.2017 should be read on a “as is” basis. In other words,

nothing should be added to the said documents while construing the

same. It should be sustained or rejected by examining words of the

documents and without permitting any subsequent qualification or

extension thereto. He also pointed out that the AIADMK party

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continues to be apprehensive as regards their majority status in

the legislative assembly on account of recent developments

whereby the SLP relating to the failure to take action against 11

MLAs was disposed of by the Hon'ble Supreme Court on

14.02.2020. As a direct consequence thereof, the respondents

mentioned the present writ petition so as to take up the same for

hearing.

12.1. Mr.Vijay Narayan, learned Advocate General made

submissions, in reply, on behalf of the second respondent. His first

contention was that the document referred to by the petitioners,

namely, the Practice and Procedure of the Legislative Assembly is

no more than a handbook or guide for legislators. But it has no

statutory basis. It certainly cannot be lifted to the status of a

constitutional convention. In addition, it was published during the

tenure of the 12th Assembly, whereas the 15th Assembly is presently

in office. Accordingly, about 19 years have lapsed since the date of

publication of the Handbook relating to the Practice and Procedure

of the Legislative Assembly. By contrast, the Tamil Nadu Legislative

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Assembly Rules have been framed pursuant to powers conferred by

Article 208(1) of the Constitution of India. Therefore, these Rules

have the status of constitutional rules. Hence, the Handbook of

Practice and Procedure is liable to be disregarded in light of the

Tamil Nadu legislative assembly rules, which would governed the

situation. He submits that even otherwise a wrong practice cannot

confer a legal right.

12.2. His second contention was that Practice and Procedure

would be overridden by Tamil Nadu Legislative Assembly Rules and

that even the principle of contemporaneo expositio would not save

the Handbook of Practice and Procedure. In support of the

contention that Rule 226 of the Tamil Nadu Legislative Assembly

Rules was relied upon even in the factual context of a breach of

privilege in face of the house, he referred to the judgment in the

case of Vijayakant v. Tamil Nadu Legislative Assembly, 2012

(3) CTC 449, to point out that the alleged breach of privilege, in

that case, was the act of rolling of the eye and sticking out of the

tongue Mr.Vijayakant and although this happened while the

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assembly session was in progress, the Speaker referred the matter

to the Privileges Committee by invoking Rule 226. Nonetheless, the

Court upheld the invocation of Rule 226. For the same principle, he

also relied upon the judgment in the case of V.C.Chandhira

Kumar v. Tamil Nadu Legislative Assembly, 2013 SCC Online

MAD 1671.

12.3. The third contention of the learned Advocate General

was that the allegation that the actions of the Speaker and privilege

committee was actuated by mala fide and bias is completely bereft

of substance. In order to substantiate its contention, he pointed

out that the AIADMK Party maintained its majority status in the

Legislative Assembly during the entire period of controversy, i.e.,

between 21.05.2016 and 13.08.2020. According to him, in August,

2017, the AIADMK Government had 134 MLAs out of 233. Even in

August,2017 and 18.09.2017, the AIADMK had 116 Members with

the casting vote of the Speaker. The AIADMK was in a comfortable

position to succeed in a confidence motion. The position has, in fact,

improved thereafter and AIADMK has 124 members in a 231

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strength House as on 30.08.2020.

12.4. He thereafter referred to judgments relating to the

interpretation of Articles 194 and 212 of Constitution of India. The

first judgment that he referred to is in the case of Pandit

M.S.M.Sharma v. Shri Sri Krishna Sinha and others, AIR 1959

SC 395 otherwise known as the 1st Searchlight case. By referring

to paragraphs 15, 22, 23 and 24 of the said judgment, he

contended that the Hon'ble Supreme Court held categorically that

judicial review of legislative proceedings, including matters of

privilege, stands of a different footing from the judicial review of

administrative actions. In respect of legislative proceedings, the

Court would show due deference to a constitutional authority and

decline to exercise jurisdiction over matters that fall within the

exclusive province of the legislature.

12.5. He also referred to the judgment in Pandit

M.S.M.Sharma v. Shri Sri Krishna Sinha and others, AIR

1960 SC 1186 (Searchlight 2) which was decided by a Bench of 8

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Judges. In the said judgment also, the Court refused to interfere

with the issuance of show cause notice in relation to a breach of

privilege.

12.6. The Five Judges Bench of this Court in the case of

C.Subramaniam (supra) was referred to next. In this case, this

Court concluded that a writ of prohibition would lie only if there is

ab initio lack of jurisdiction. He also relied upon the judgment of

the Division Bench of this Court in K.Anbazhagan v. The

Secretary, Tamil Nadu Legislative Assembly, AIR 1988 MAD

275 and that of a Single Bench of this Court in A.Kamaraj v. The

Secretary, Tamil Nadu Legislative Assembly, (2012) 6 CTC

593. By referring to paragraphs 20 to 24 of the judgment in the

case of A.Kamaraj (supra), he pointed out that the court refused to

interfere with the proceedings before the Privileges Committee.

12.7. The next contention of the learned Advocate General

was that this Court should not interfere in the proceedings of the

Privileges Committee even if it concludes that the notice issued by

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the Privileges Committee is procedurally defective. For this

proposition, he relied upon the judgment in K.T.Plantation

Private Limited and another v. State of Karnataka, (2011) 9

SCC 1, wherein the Hon'ble Supreme Court held that the Court

should not interfere if the defect is curable. According to the

learned Advocate General, any defect in the notice dated 28.8.2017

is a curable defect and no interference is warranted on that basis.

12.8. In conclusion, he referred to the judgment in Raja Ram

Pal (supra). By referring to paragraphs 125 and 126 of the said

judgment, he pointed out that the practices in privileges of the

House of commons as on the date of commencement of the

Constitution of India was incorporated by reference in to Article

194(3) as it stood then. Therefore, any changes in parliamentary

privileges of the House of commons subsequently would not

impact, the privileges available to members of the Indian Parliament

or the State legislatures. With regard to the paragraph 431 of the

said judgment, he contended that the present case does not come

within the ambit of judicial review as per the principles formulated

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in the said paragraph 431.

13.1. Mr.A.L.Somayaji, the learned Special Senior Counsel

made submissions thereafter on behalf of respondents 3 and 4. He

opened his submissions by referring to the prayer in the writ

petitions. He pointed out that the Minutes of proceedings dated

19.7.2017 and the notice dated 28.8.2017 of the Privileges

Committee are the subject matter of challenge in the writ petitions.

Prior to the proceedings of the Legislative Assembly on 19.7.2017,

he pointed out that other MLAs belonging to the DMK party were

permitted to raise Gutkha issue in the Legislative Assembly that

was discussed during zero hour on 29.6.2017. Therefore, it cannot

be said that the members representing the DMK party in the

legislative assembly were not permitted to raise Gutkha issue in the

legislative assembly. It became necessary to initiate action against

the 21 MLAs because they proceeded to bring and display a

prohibited substance namely, Gutkha sachets in the Legislative

Assembly, that too even when a request of grant was being

discussed. He also pointed out that the Privileges Committee

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consists of Members of not only the AIADMK, but the DMK and the

Indian National Congress also. He also referred to the counter filed

by the Chairman of the Privileges Committee outlining the facts and

circumstances in which the reference was made and proceedings

were initiated by the privileges committee pursuant thereto. In

particular, he pointed out that by notice dated 28.8.2017, the

Privileges Committee had merely called for an explanation from the

Members with regard to the alleged breach of privilege.

Consequently, the writ petitions are premature. In support of the

contention that a writ petitions are not maintainable at the pre-

decisional stage on Quia timet basis, he referred to and relied upon

the judgment of the Hon'ble Supreme Court in Searchlight 2 case.

He also referred to the judgment in the L.N.Phukan and others v.

Mohendra Mohan Choudhury and others, AIR 1965 Assam

and Nagaland 74, in particular, he referred to paragraphs 20 and

26 thereof. He also referred to the judgment of the Five Judges

Bench of this Court in C.Subramaniam (supra); the judgment of

the Rajasthan High Court in Prithviraj Meena and others v. The

Hon'ble Speaker, Rajasthan Legislative Assembly and others,

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[Division Bench Civil W.P.No.7451 of 2020, dated

24.7.2020], and that by this Court in A.Kamaraj case (supra).

In all these cases, he pointed out that the Court refused to interfere

with the proceedings of the Legislative assembly and in particular,

the Privileges Committee.

13.2. Mr.Somayaji, learned Special Senior Counsel for the

State of Tamil Nadu then urged that it is an admitted position that

Gutkha is a prohibited product. Therefore, he contended that it

constitutes a breach of privilege and that this issue should be

decided by the Privileges Committee and not by this Court.

13.3. His next contention was that the Privileges Committee

has been constituted to enquire into the breach of privilege and not

to examine whether the notification has been contravened by

transporting or exhibiting these sachets.

13.4. With regard to the judgment of the Supreme Court in

the case of Lokayukta, Justice Ripusudan Dayal (Retired) and

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others (supra), he submitted that the said judgment turned on the

peculiar facts of the case. In order to substantiate this contention,

he referred to paragraphs 4 to 8 of the said judgment, wherein the

fact situation is narrated. In specific, he pointed out that the said

case pertains to proceedings that had been initiated by the

Lokayukta and to the vindictive retaliatory action on the part of the

Legislative Assembly to take action against the Lokayukta for

discharging his duties. In those unique and peculiar facts, he

submitted that the Lokayukta, Justice Ripusudan Dayal

(Retired) and others case (supra) was decided by the Hon'ble

Supreme Court. Moreover, in that case, the foundation for a breach

of privilege was completely absent. By contrast, in this case, the

foundational facts for initiating of proceeding for breach of privilege

is certainly present.

13.5. He thereafter referred to the recent judgment of the

Rajasthan High Court in Prithviraj Meena and others v. The

Hon'ble Speaker, Rajasthan Legislative Assembly and others,

[Division Bench Civil W.P.No.7451 of 2020, dated

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24.7.2020]. He pointed out that the Rajasthan High Court did

not decide the case, but merely framed questions for consideration

and admitted the writ petition for purposes of deciding the said

questions.

13.6. He then referred to the judgment in the case of

Harendra Nath Barua v. Dev Kanta Barua, AIR 1958 Assam

160 and to that in the case of K.Anbazhagan (supra). By referring

to paragraphs 31 to 34 of Harendra Nath Barua (supra) and

paragraphs 61 to 66 in K.Anbazhagan case (supra), he pointed out

that the consistent position taken by Courts is not to interfere in

matters relating to legislative proceedings and in particular

proceedings for breach of privilege.

13.7. The next contention of Mr.Somayaji was that Paragraph

16(ix) of the Practice and Procedure of the Tamil Nadu Legislative

Assembly does not permit a Member to bring any prohibited objects

into the House.

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13.8. By drawing reference to the proceedings of the

Legislative Assembly on 19.7.2017, he pointed out that the Speaker

had merely recorded that he considers it a breach of privilege. In

other words, it was merely the expression of a prima facie view and

not a definitive conclusion.

13.9. By referring to paragraphs 31 and 38 to 40 of the

Ramdas Athawale (5) v. Union of India and others, (2010) 4

SCC 1, he pointed out that the Speaker is the guardian of the

House and has, therefore, been vested with full powers to control

and regulate the proceedings of the House. He also referred to the

judgment of the Supreme Court in Amarinder Singh v. Punjab

Vidhan Sabha, (2010) 6 SCC 113 and to the judgment in Satish

Chandra v. Speaker, Lok Sabha and others, (2014) 2 SCC

178.

13.10. The next contention of Mr.Somayaji was that the

petitioners have completely failed to establish that the action of the

Speaker or that of the Privileges Committee was actuated by mala

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fide intentions. In fact, he pointed out that the AIADMK Party was

in a comfortable majority throughout the entire relevant period and,

therefore, the allegation of having acted out of a mala fide intention

is completely baseless. For this proposition that the plea of mala

fide should be made with sufficient particulars, he referred to the

judgment of the Supreme Court which is reported in Parkash

Singh Badal and another v. State of Punjab and others,

(2007) 1 SCC 1 and in particular paragraph 61 thereof.

13.11. He also contended that bias had not even been

pleaded. For this purpose, he referred to the affidavit filed in the

writ petition of Mr.Ravichandran. In fact, he pointed out that

Mr.Ravichandran had not even admitted that he was a Member of

the Privileges Committee.

13.12. He next referred to the reply filed to the rejoinder of

Mr.M.K.Stalin and Mr.Ravichandran, wherein the facts relating to

the decision to refer the matter to the Privileges Committee and the

proceedings of the meeting of the Privileges Committee were

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adverted to.

13.13. With regard to the suit filed by the Deputy Speaker

against Mr.M.K.Stalin, he pointed out that the said suit was filed in

the year 2020 and, therefore, has no bearing at all to the breach of

privilege proceedings.

13.14. With regard to the contention that the Deputy Speaker

should have recused from the Privileges Committee on account of

being a person interested, he submitted that the Deputy Speaker is

the Ex-officio Chairman of the Privileges Committee as per the

Tamil Nadu Legislative Assembly Rules. Consequently, he is

entitled to continue to hold the said position by virtue of the

Doctrine of Necessity. In this regard, he relied upon the judgment

in Election Commission of India and another v.

Dr.Subramaniam Swamy and another, (1996) 4 SCC 104, in

particular paragraph 16 thereof.

13.15. The last contention of Mr.Somayaji was that there was

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no delay in initiating proceedings by the Privileges Committee. He

pointed out that the last date of the Legislative Assembly session

was 19.7.2017 and therefore the issuance of a notice by the

Privileges Committee on 28.8.2017 was not belated.

14. The learned Advocate General made brief submissions

thereafter on the question as to what is meant by privileges. In this

regard, he pointed out that privileges cannot be defined, but they

come with corresponding responsibilities and duties. Consequently,

if a person who has been conferred with privileges does not

perform the corresponding duties or responsibilities, he is liable to

be proceeded against for breach of privilege. In this connection, he

referred to paragraphs 72 to 104 of Keshav Singh's case (supra).

15.1. Mr.Shanmughasundaram made brief submissions by

way of rejoinder. He referred to Rule 92 of the Rules of the

Legislative Assembly which deals with what is prohibited while a

Member speaks on the floor of the Legislative Assembly. He

pointed out that there is nothing in Rule 92 which prohibits a person

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from bringing and displaying Gutkha sachets on the floor of the

House.

15.2. By once again drawing reference to the judgment of the

Supreme Court in Bijaya Kumar Agarwala case (supra), he

pointed out that the foundational facts for conducting proceedings

in respect of breach of privilege are absent in this case.

15.3. He further contended that a speedy and fair enquiry has

not been initiated and, therefore, this Court should interfere in the

matter.

16.1. Mr.Amit Anand Tiwari submitted that it is necessary to

examine the intention with which the Gutkha sachets were brought

into the House and displayed so as to assess whether there is a

breach of privilege. In other words, the act per se cannot be looked

at in isolation to decide the question.

16.2. With regard to issue whether mala fide intention can be

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imputed to the Privileges Committee, he adverted to paragraphs

407, 408 and 431(b) of the Raja Ram Pal case (supra) and pointed

out that the Supreme Court has categorically concluded that

allegations of mala fide can be made even against the House,

provided the person making such allegations discharges the heavy

burden of establishing the same.

16.3. With regard to malice, he contended that both malice in

law and malice in fact exist in the present case. With regard to the

proceedings on 19.7.2017, he pointed out that the Speaker initially

did not threaten to take action for breach of privilege and instead

stated that his permission should have been taken before bringing

the Gutkha sachets into the House. Subsequently, based on the

statements by the Hon'ble Chief Minister to the effect that the

Members of the DMK Party were bringing disrepute to the

Government by displaying the Gutkha sachets, he changed his

stance and decided to initiate action for breach of privilege.

16.4. Similarly, with regard to the notice from the Privileges

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Committee, he pointed out that the said notice was issued on

28.8.2017, within four days from the date of issuance of notices to

the dissenting MLAs. Therefore, he submitted that the sequence of

events clearly establishes the malicious intent behind the initiation

of proceedings for breach of privilege. In this connection, he

referred to the judgment of the Supreme Court in State of Punjab

v. Gurdial Singh, (1980) 2 SCC 471, wherein at paragraphs 7

and 9, the Supreme Court concluded that it amounts to a colourable

exercise of power when power is used for a purpose different from

that for which it was entrusted.

16.5. He next referred to the judgments in the Vijayakant

case (supra) and V.C.Chandhira Kumar case (supra) so as to

point out that in both those cases, the proceedings for breach of

privilege were prosecuted expeditiously. By contrast, he pointed

out that in this case, there was a long gap of about 40 days before

notice was issued to the Members, who were accused of breach of

privilege.

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16.6. With regard to Practice and Procedure of the Legislative

Assembly, he pointed out that it is an undisputed fact that this is an

official publication of the Tamil Nadu Legislative Assembly. It has

been in use from the year 1960. He contended that the

respondents are probating and approbating with regard to the

Practice and Procedure Handbook. On the one hand, it is contended

by the respondents that it is no more than a handbook which should

be disregarded, whereas on the other hand, the respondents rely

upon paragraph 16(ix) so as to contend that prohibited objects

should not be brought into the Legislative Assembly. In this

connection, he referred to the judgment of the Supreme Court in

J.Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103 and to

the judgment in the case of Express Newspapers (P) Ltd. v.

Union of India, (1986) 1 SCC 133.

16.7. He also referred to the judgment in Indira Gandhi v.

Raj Narain, 1975 Supp SCC 1 for the principle that bias can be

attributed even to the legislature.

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17.1. Mr.N.R.Elango, learned Senior Counsel made

submissions in rejoinder to the effect that Mr.M.K.Stalin did not

interrupt the proceedings of the Legislative Assembly on 19.7.2017.

To the contrary, he made statements upon being permitted to

speak by the Hon'ble Speaker. In support of this contention, he

referred to the proceedings of the Legislative Assembly on

19.7.2017 and in particular the record thereof at pages 101 and

102 of Volume II.

17.2. He also contended that the Rules of the Legislative

Assembly deal specifically with the powers of the Speaker and the

House, if the proceedings of the House are disrupted and if

orderliness is not preserved. In particular, he referred to Rules 117

to 122 and pointed out that the said Rules specify the powers of the

Speaker in such situations. Consequently, he contended that the

Speaker should not have initiated proceedings for breach of

privilege and instead should have taken recourse to Rules 117 to

122.

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CONSIDERATIONS:

18. Twenty-one elected representatives of the Legislative

Assembly of the State of Tamil Nadu (presently nineteen as two of

them passed away during the pendency of these petitions) have

been noticed by the Deputy Speaker of the Assembly, who is also

the Ex-officio Chairman of the Committee of Privileges vide a

communication dated 28.8.2017 calling upon them to explain their

act of bringing “prohibited items” and exhibiting them in the

Assembly on 19.7.2017 and as to why such act be not treated as a

conduct amounting to a breach of the privilege of the House, which

incident was reported by the Speaker to the Privileges Committee

for being examined and reported.

19. All the petitioners have invoked the extraordinary

jurisdiction of this Court under Article 226 of the Constitution of

India praying for issuance of a writ of certiorari for quashing the

reference made by the Speaker about the incident dated 19.7.2017

and also the consequential notice dated 28.8.2017, as the entire

proceedings are illegal, being violative of Articles 14, 19(1)(a) and

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21 of the Constitution of India, as well as in violation of the relevant

law and the Rules applicable in this regard.

20. In order to appreciate the thrust of the challenge raised to

the proceedings of breach of privilege, three relevant facts need to

be recorded at the outset. The first is the record of proceedings

dated 19.7.2017, which has been extracted in part and also

translated on behalf of the petitioners. The said extract is part of

what was stated by one of the petitioners, Mr.M.K.Stalin, who is the

Leader of the Opposition in the House; the Leader of the House of

the Ruling Party; the Speaker; the Chief Minister, and one of the

Members of the Assembly. These statements were made during the

course of discussion on the request for grant that was on the

agenda of the House on that date. The said statements as

extracted are reproduced herein under:

“Annexure Fair translation of relevant portions of the proceedings of the Tamil Nadu Legislative Assembly dated 19.7.2017 xxx xxx xxx xxx xxx xxx

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Thiru.M.K.Stalin: .... .... .... Please don't think that I am interfering in your ruling. It is my duty to indicate during the discussion on Demands for Grants on State Legislature and Governor and Council of Ministers. That's why I am asking. (Thumping of desks) What is the action taken by the Chief Secretary on the letter from the Governor? The Chief Secretary should have sent the letter to the State Vigilance Commission. By this time, a case should have been registered. Gutka was banned even during 2013. That banned substance ** ..investigation has to be conducted and suitable action should be taken. Just because promotion was given......

Hon. Speaker: Hon. Leader of the House.

Hon. Thiru K.A.Sengottaiyan: Hon. Speaker Sir, Hon. Leader of Opposition while speaking said ** I want to know whether it would be proper to have such matters in the proceedings.

Hon. Speaker: Hon. Leader of Opposition (Interruption). Please conclude your speech early.

Thiru M.K.Stalin: Therefore, continuously ** sale is going on. I say one thing now.

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*Doing what is forbidden as well as not doing the obligatory, are both equally ruinous courses*

Doing what is forbidden will bring ruin, leaving things which ought to be done will also lead to ruin, as told by Thiruvalluvar (Thumping of desks). Right from Koovathoor, you are continuously doing things which are unwarranted, but deferring things which ought to be done (interruptions). You will be thrown out by the people and go down in the history. The time is fast approaching.

Hon. Speaker: Hon. Leader of Opposition, please conclude your speech early.

Thiru M.K.Stalin: Finally, What I want to bring to this House is, **Gutka being openly sold in Chennai. I have brought this here.

(Majority of the DMK Members ** exhibited and also showed some photographs)

Hon'ble Speaker: Hon. Leader of Opposition, You finish your speech with that point. You should not exhibit such things in the House. You should not show such things without seeking my permission.

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This is not proper (Interruptions) I cannot allow. This will set a bad precedent. This is wrong cannot allow this. (Interruptions), sit down. Hon. Chief Minister.

Hon. Thiru Edappadi K.Palaniswami: Hon. Speaker Sir, How the Opposition Members got the banned substance? (Interruptions) How they got it? It is even wrong to bring such things to the House (Interruptions) No body should seize a banned substance. If they seize, they should take it to the Police Station and lodge a complaint. If that is the situation, bringing a banned substance to the House is itself an offence, a very grave offence. A banned substance should be produced in the Police station after lodging a complaint. Only, based on the complaint, they can take action. How action can be initiated if the Opposition Members show it in the Assembly? What is the proof that it was received only here? What is the proof that it was received only in this State? Opposition Members may have brought it from some other State. (Interruptions) If they really though of banning the ** substance and if they legally lodged a suitable complaint in the Police Station, action would have been taken. This is really what they should do. Opposition Members deliberately in order to find fault with

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the Government, has brought and exhibited the same. I want to tell the Hon. Leader of Opposition through Hon. Speaker that this kind of finding fault with the Government is not correct.

(Majority of the DMK Members ** exhibited and also showed some photographs).

Hon'ble Speaker: I will not permit (Interruptions). Sit Down. Reply Hon. Finance Minister (Interruptions) I have no time for that. Sit down (Interruptions). When the proceedings of the Assembly is going in a smooth way it is not proper to show such kind of things unnecessarily. It is under my consideration. I will take necessary action. I assure that I will take suitable action for bringing banned substance into the Assembly (Thumping of desks).

This is not proper. By your behaviour, you are not cooperating with the House (Interruptions). I would have accepted if you have exhibited the thing, after getting permission from me. (Interruptions). I would take necessary early action for exhibiting it without proper permission. (Interruptions). Reply by Hon. Minister for Fisheries, Finance & Personnel and Administrative

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Reforms.

(DMK Members were continuously standing)

Hon. Thiru D.Jayakumar: Hon. Speaker ..... (Interruptions)

Hon. Speaker: Hon. Minister, you may continue your speech (Interruptions). I have no time (Interruptions)

Hon. Thiru D.Jayakumar: As Hon. Chief Minister said, bringing a banned substance inside the Assembly itself is an offence. (Interruptions). The same has been recorded in the cameras (Interruptions). I request the Hon. Speaker to take action against such Members who have exhibited**

(DMK Members were continuously standing)

Hon. Speaker: Hon. Members sit down. (Interruptions). The view expressed in the speech of Hon. Leader of Opposition and the action of the Members in exhibiting a banned substance without seeking proper permission from me, feel that it is a breach of privilege. Therefore, I refer

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the matter to the Privilege Committee for investigation and take necessary action.

(DMK Members were continuously standing)

No (Interruptions). Everything has been recorded about the Members who exhibited in the Assembly. I will refer (Interruptions) Reply by Hon. Minister for Fisheries, Personnel and Administrative Reforms. (Interruptions). No time, Please sit down. (Interruptions)

(DMK Members were continuously standing)

Hon. Thiru D.Jayakumar: Hon. Speaker Sir ...................

(Hon. Deputy Speaker in the Chair)

(DMK Members were continuously standing)

Hon. Deputy Speaker: Hon. Members please sit down calmly (Interruptions)

Hon. Thiru D.Jayakumar ... ..... ...... (Interruptions)

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Hon. Deputy Speaker: Hon. Finance Minister. Please wait for a minute (Interruptions). Hon. Leader Opposition, whatever you want to say you say (Interruptions). First of all, all others sit down.

Thiru M.K.Stalin: Hon. Deputy Speaker **

Hon. Deputy Speaker: The speech made by Leader of Opposition is expunged (Interruptions) Hon. Chief Minister (Interruptions)

Hon. Thiru Edappadi K.Palaniswami: Hon. Speaker Sir, the Leader of Opposition is a responsible leader. It is not proper for him to speak without knowing how to speak (Interruptions). He says **is being sold. I want to point out that if that is true, he should go to the Police station with evidence for taking necessary action. Therefore, it is not proper to exhibit a banned substance. I want to say at this juncture that it is an offence.

(All the DMK Members staged a walk out)

** Expunged as ordered by the Speaker”

21. The next document is the minutes recorded by the

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Speaker regarding the aforesaid allegation of breach of privilege at

Item No.9 of Proceedings No.37 dated 19.7.2017, which is

extracted herein under:

“Tamil Nadu Legislative Assembly Minutes of Proceedings No.37 2017, July 19, Wednesday .....

9. Breach of Privilege The Hon'ble Speaker announced that he will send it to the Privilege Committee in accordance with the provisions of the Legislative Assembly Rules to take appropriate action, as it is a breach of privilege to bring and exhibit prohibited items inside the legislative assembly.”

22. The third document, which is the impugned notice calling

upon the petitioners to submit their reply and explanation on the

alleged breach reported against them, is also reproduced herein

under:

“Speed Post Secretariat Chennai-600 009.

Letter no.10100/2017 – 4 Sa.Ma.Pa (Sa.Mu.Va – 3) dated 28.08.2017

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Legislative Assembly Secretariat

Respected Sir,

Subject : Breach of Privilege issue – Your act on 19.07.2017 in the assembly, a breach of privilege – request for explanation – Reg.

*****

Considering your act of bringing “prohibited items” and exhibiting them in the assembly on 19.07.2017 as breach of privilege, the speaker has sent the matter to the privileges committee to examine and to report.

This matter was taken up for examination in the meeting of the privileges committee on 28.08.2017. A decision by the committee was taken to first get an explanation from you regarding this matter.

Therefore, I have been asked to request you to send your explanation regarding the above mentioned matter through a written reply to the Secretariat by 05.09.2017.

Regarding this matter, until the committee presents its

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report to the assembly, all proceedings of the committee must be held confidentially. Therefore, I am informing you that you must not disclose anything regarding this matter in any manner.

Yours truly, (K.Bhupathi) To Mr.M.K.Stalin Leader of opposition.”

23. The writ petitions were instituted immediately thereafter

and under the orders of the then Hon'ble Chief Justice, the same

was directed to be listed before the Bench having roster in the

matter vide order dated 6.9.2017. The writ petitions were placed

before a learned Single Judge who had the roster over the matter,

who on 7.9.2017 passed the following interim order in respect of

these petitions:

“Heard Mr.Kapil Sibal, learned senior counsel appearing for the petitioner in W.P.No.24156 of 2017, Mr.Amerendra Saran, learned senior counsel appearing for the petitioner in W.P.No.24157 of 2017, Mr.P.Wilson, learned senior counsel appearing

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for the petitioner in W.P.No.24158 of 2017, Mr.Shanmugasundaram, learned senior counsel appearing for the petitioners in W.P.Nos.24159 to 24165 of 2017 and Mr.N.R.Elango, learned counsel appearing for the petitioners in W.P.Nos.24166 to 24176 of 2017.

2. Mr.Vijayanarayanan, learned Advocate General takes notice for the 2nd respondent.

3. Notice to the respondents 1, 3 & 4 returnable by 14.9.2017.

4. After hearing the submissions made by the learned senior counsel for the petitioners, Mr.Vijayanarayanan, learned Advocate General wanted to make his submissions with regard to the maintainability of the Writ Petitions on 14.09.2017.

5. The learned Advocate General made a submission before this Court that he will advise the respondents not to pass any order until further orders of this Court. Further, the learned Advocate General submitted that he would advise the respondents to adjourn the proceedings, pending before the 3rd

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respondent, to some other date after the matter is being listed on 14.09.2017.

6. The submissions made by the learned Advocate General is recorded. I make it clear that the 3rd respondent shall not fix the date for submitting the explanation of the petitioners without obtaining the orders of this Court. I also make it clear that the 3rd respondent shall not pass any order until further orders of this Court.

Post on 14.09.2017.”

24. We may incidentally observe that there were other writ

petitions also filed pertaining to the disqualification of 18 MLAs of

the Ruling Party, the writ petitions pertaining to restraining or

holding of the floor test to prove the majority in the trust motion,

and writ petitions of quo warranto for restraining the Deputy Chief

Minister and another Minister from functioning in view of the

allegations made therein. We will very briefly refer to them, as the

learned Senior Counsel for the petitioners have referred to the said

disputes in order to substantiate their submissions with regard to

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the mala fides alleged in the writ petitions.

25. Affidavits were exchanged between the parties and

submissions have been advanced. The first and foremost objection

raised on behalf of Mr.Vijay Narayan, learned Advocate General and

Mr.A.L.Somayaji, learned Special Senior Counsel, is to the

maintainability of the writ petitions. They urged that the writ

petitions ought not to have been entertained at this premature

stage, as no prejudice has been caused, nor any rights affected that

may warrant interference at the instance of the petitioners. They

submit that the matter has been transmitted by the Speaker to the

Committee of Privileges, which is the deliberating authority under

the Tamil Nadu Legislative Assembly Rules, whereafter the matter

has to be finally dealt with by the House itself. It is, therefore,

submitted that whatever grounds have been taken in the writ

petitions firstly do not fall for consideration at this stage of the

issuance of show cause notice and secondly, even otherwise there is

no merit at all in the grounds taken to support the writ petitions.

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26. Before we embark upon dealing with this preliminary

issue, it would be appropriate to set out the constitutional as well as

the statutory scheme of the powers and privileges that are

engrained in the Constitution itself. Article 194 of the Constitution

of India is reproduced herein under:

“Article 194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.— (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature,

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shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment) Act, 1978.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.”

27. It may be pointed out that by Section 34 of the

Constitution (Forty-second Amendment) Act, 1976, a change was

sought to be introduced that was as follows:

“(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be those of that House, and of its members and committees, at the commencement of Section 34 of the Constitution

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(Forty-second Amendment) Act, 1976, and as may be evolved by such House of the Legislature of a State, so far as may be, in accordance with those of the House of the People, and of its members and committees where such House is the Legislative Assembly and in accordance with those of the Council of States, and of its members and committees, where such House is the Legislative Council.”

28. However, before the same could be introduced, Section 45

of the Constitution (Forty-fourth Amendment) Act, 1978 repealed

the same. What is more important is that Section 26 of the

Constitution (Forty-fourth Amendment) Act, 1978 deleted the

following words that were there originally in Sub-clause (3) of

Article 194. The same is extracted herein under:

“Shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution”

29. The net result is the powers, privileges and immunities

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that existed immediately before coming into force of Section 26 of

the Constitution (Forty-fourth Amendment) Act, 1978 was to

continue and, therefore, the powers, privileges and immunities as

those of the House of Commons of the Parliament of the United

Kingdom continued to be the guiding principle, subject to any

further powers to be defined by the Legislature by law from time to

time. This position of law vis-a-vis Article 194(3) of the

Constitution of India has been explained by the Constitution Bench

decision in the case of Raja Ram Pal (supra), subject to the

constitutional limitations, keeping in view the principle that the

historical facts relating to the existence of the powers and privileges

of the House of Commons and Parliament in England cannot be

introduced in India by any legal fiction. Paragraph 86 of the said

judgment is extracted herein under:

“86. In matters concerning the import of powers and privileges of the House of Commons unto the legislature in India, while examining the issue, albeit from the limited concern of the availability to the State Legislature under Article 194(3) of the power of commitment for contempt, this Court in U.P.

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Assembly case (Special Reference No. 1 of 1964) [AIR 1965 SC 745 : (1965) 1 SCR 413 sub nom Keshav Singh, In re] had administered a note of caution that must hold good even for the purposes at hand. At SCR p. 491 of the judgment, it was observed thus: (AIR p. 785, para 123) '123. In this connection, it is essential to bear in mind the fact that the status of a superior court of record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that Parliament was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest court of law in the country. It is a fact of constitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious, we think, that these historical facts cannot be introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions, but there is a limit to the power of

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law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf;

but legal fiction can hardly introduce historical facts from one country to another.'”

30. A privilege is a special advantage or immunity enjoyed by a

favoured class. The Members of a Legislative Assembly enjoy certain

rights inside the House, for example, the freedom of speech protecting

them from being sued for libel or anything they say inside the House.

It is a private and a peculiar prerogative with a special distinction

beyond the common advantages of others. These privileges are not

codified and are certainly not known to anyone except the legislature

itself. This is a sort of an exemption or an indulgence usually against

or outside law. The conduct, therefore, may not be actionable

otherwise, as it continues to be a special freedom or benefit contrary

to the common course of law. This authority, by itself, is invested by

the Constitution in order to maintain the dignity of the House. Such

dignified privileges may forbid or prohibit by law any act which can be

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termed as a breach of privilege. A breach, in this sense, would

amount to a violation or an infraction of a norm of obligatory behaviour

which interferes with the collective rights of a privileged body. An

infringement or an inroad so as to rupture the dignity of the House or

bring disrepute either to the Chair or the House may amount to a

breach. To defend its dignity and to maintain its dignified authority, a

legislature has been conferred with privileges, which almost remains

uncodified in spite of the need to do so, as indicated in the Constitution

itself.

31. The next provision is the limitation prescribed under Article

212 of the Constitution of India, which is extracted herein under:

“Article 212. Courts not to inquire into proceedings of the Legislature.— (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in

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respect of the exercise by him of those powers.”

32. The power to frame laws in respect of the powers, privileges

and immunities of the House, therefore, is contained in Article 194(3)

of the Constitution of India itself, which has to be read with the

general powers conferred on a State Legislature under Article 246 of

the Constitution of India, which is extracted herein under:

“Article 246. Subject-matter of laws made by Parliament and by the Legislatures of States.— (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule

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(in this Constitution referred to as the “State List”). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.”

33. The corresponding competence under Article 246 of the

Constitution of India is contained in State List (List II), Entry 39, which

is also extracted herein under:

“List II – State List 1 to 38 ****

39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State.”

34. Then there is an important constitutional provision that

directly empowers the Legislature of the State to frame Rules for

regulating itself and its procedure as well as the conduct of business,

which is Article 208 of the Constitution of India. The same is extracted

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herein under:

“Article 208. Rules of procedure.— (1) A House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.

(2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature for the corresponding Province shall have effect in relation to the Legislature of the State subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as the case may be.

(3) In a State having a Legislative Council the Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure with respect to communications between the two Houses.”

35. Thus, the legislatures are comfortably insulated and

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empowered to frame laws as well as Rules of procedure under the

aforesaid provisions and in the State of Tamil Nadu, such Rules have

been framed by the State Assembly in exercise of powers under Article

208 of the Constitution of India known as the Tamil Nadu Legislative

Assembly Rules. For the purpose of the present controversy, at this

stage suffice would be to extract Rules 219 to 230 contained in

Chapter XX(4) titled as Committee of Privileges. The same is

extracted herein under:

“Rule 219. Raising of a question of privilege: A member may, with the consent of the Speaker, raise a question involving a breach of privilege, either of a Member or of the House or of a Committee thereof.

Rule 220. Notice of the matter proposed to be raised: Notice of a motion to raise a question of privilege together with a brief statement shall be given at least one hour before the commencement of the sitting on the day on which the question is proposed to be raised to (i) the Speaker (ii) the Secretary and (iii) the Leader of the House. If the question raised is based on a document, the notice shall be accompanied by the document:

Provided that the notice intended for the Leader of

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the House may be handed over to the Secretary for being forwarded to the Leader of the House : Provided further that if it is against any other Member of the House (including a Minister) a copy of such notice shall be given to him through the Legislative Assembly Secretariat : Provided further that in respect of a matter of privilege arising during the sitting of the House the Speaker may waive such notice and deal with the matter as he deems fit.

Rule 221. Time of raising: On the Speaker giving his consent to raise a question of privilege it must be raised after the questions and before the list of business for the day is entered upon: Provided that a question of privilege arising during the sitting of the House shall be entitled to immediate precedence over all other business.

Rule 222. Conditions for admissibility: The right to raise a question of privilege shall be governed by the following conditions, namely:— (1) The question shall be restricted to a specific matter of recent occurrence;

(2) The matter, in the opinion of the Speaker

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requires the intervention of the House.

If these conditions are satisfied the Speaker may give his consent under rule 219.

Rule 223. Raising the matter after consent: The Speaker if he gives his consent under Rule 219 and holds that the matter proposed to be discussed warrants intervention of the House he may at his discretion call the Member concerned to make a short statement relevant thereto:

Provided that in a fit case before deciding whether the matter warrants intervention of the House, he may give an opportunity to the Member to explain briefly why the matter requires the intervention of the House :

Provided further the Speaker may give an opportunity to the Member against whom the matter is sought to be raised to briefly explain his case.

Rule 224. Refusal for consent: The Speaker, if he refuses consent or is of opinion that the matter does not warrant cognizance by the House, the same shall be communicated to the Member concerned and that the matter shall not be raised in the House in any form thereafter.

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Rule 225. Moving of motion: If the Speaker, holds that the matter raised affects the privilege or amounts to a contempt of the House and requires the intervention of the House he may allow a motion to be made by any Member that the alleged breach of privilege be referred to the Committee of privileges or in the alternative that it be dealt with by the House itself.

Rule 226. Suo motu reference to Committee by Speaker: Notwithstanding anything contained in these rules, the Speaker may suo motu refer any question of privilege to the Committee of Privileges for examination, investigation and report.

Rule 227. Constitution of the Committee: (1) A Committee of Privileges shall be constituted which will consist of the Leader of the House and the Leader of the Opposition and the Deputy Speaker who shall be Members ex-officio and fourteen other members to be elected by the Assembly on a date to be fixed by the Speaker according to the principle of proportional representation by means of the single transferable vote and in accordance with the

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regulations framed in this behalf by the Speaker. (2) The Members of the Committee so elected will cease to hold office at the end of each financial year but any member shall be eligible for re-election.

There shall be a fresh election before the end of the financial year for constituting the Committee for the ensuing financial year. If under any circumstances such an election is not held the existing members of the Committee will continue to hold office until new members are elected.

(3) The Deputy Speaker shall be the ex-officio Chairman of the Committee.

(4) In order to constitute a meeting of the Committee the quorum shall be five including the Chairman or the member presiding.

Rule 228. Disabilities of Members of the Committee: (1) A member of the Committee who has a personal or direct interest of such a character that it may prejudicially affect the consideration of the matter of privilege to be considered by the Committee shall not sit on the Committee when the matter is under consideration.

(2) Whether a member of the Committee has a personal or direct interest as stated in sub-rule (1)

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shall be decided by the Chairman of the Committee; if it involves the Chairman of the Committee himself the matter shall be referred to the Speaker and his decision shall be final.

Rule 229. Procedure after presentation of the report: (a) The report of the Committee of Privileges shall be presented to the Assembly by the Chairman of the Committee or by any member of the Committee so authorised;

(b) As soon as may be, after the report has been presented a motion in the name of the Chairman of the Committee or any member of the Committee may be made that the report be taken into consideration;

(c) Any member may give notice of amendment to the motion for consideration of the report referred to above in such form as may be considered appropriate by the Speaker:

Provided that an amendment may be moved that the question be recommitted to the Committee either without limitation or with reference to any particular matter;

(d) After the motion for consideration of the report has been carried, the Chairman or any member of

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the Committee or any other member as the case may be, move that the Assembly agrees, or disagrees, or agrees with amendments, with the recommendations contained in the report.

Rule 230. Procedure to be followed in the Committee. Except as aforesaid the rules applicable to a Select Committee of the Assembly shall apply.”

36. A perusal of the entire scheme and the Rules referred to

above clearly indicates that if a motion of breach of privilege is to

be brought about, then the same is to be proceeded with in the

manner provided under the said Rules, where the final decision is to

be taken straightaway either by the House itself in certain

circumstances, particularly where the breach is alleged to have

been committed in the view of the House, or on the reference of

such a breach to the Privileges Committee by the Speaker, either on

the motion of a Member/Members, or even by a suo motu reference

by the Speaker on any question of privilege. There is, therefore, no

gainsaying that there is a procedure prescribed and consequently,

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the matter has to be routed through the said procedure.

37. To instruct the Members of the Legislative Assembly, a

Handbook of Practice and Procedure, which is not a statutory rule

and is only conventional also prescribes certain guidelines, a copy

whereof has been placed on behalf of the petitioners contending

that it has a binding effect. This position has been seriously

disputed by the learned Advocate General contending that these are

not statutory rules and are only a guideline for legislators who come

to the House and have to be guided in having sufficient knowledge

about the manner in which the House is conducted. These are

however not statutory rules according to him and, therefore, have

no binding effect. Yet, since it will have a bearing on what we are

proceeding to decide, it is necessary to extract two of these

provisions, namely Clause 16 and Clause 46(6). Clause 16 indicates

the manners and certain other restrictions which have to be

observed by every Member. Clause 16 is reproduced herein under:

“16. Rules to be observed by the Members while participating in the Assembly Meeting.

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A Member present at a sitting of the House and not speaking-

(i) shall bow to the Chair when taking or leaving his seat;

(ii) shall not pass between the Chair and any Member who is speaking; If necessary a Member may go out from the House through the Gate near his seat;

(iii) shall maintain silence and during unavoidable circumstances, a Member may speak with other Member in low voice without interrupting the proceedings of the House;

(iv) when the Speaker enters the House during the commencement of Assembly meeting, all the Members should stand in their places till the Speaker takes his seat.

(v) shall not stand in the House or the leave the House when the Speaker is addressing the House;

(vi) shall not interrupt a Member while speaking by disorderly expressions or noise or in any other disorderly manner;

(vii) shall not read any newspapers or books or magazines except in connection with the business of the House:

(viii) the Members who are present in the lobby

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should not obstruct the proceedings of the House by speaking or laughing loudly.

(ix) Members should not bring in to the House umbrellas, walking sticks or any other objects prohibited by law

(x) shall not obstruct the proceedings or interrupt and avoid making running commentaries when speeches are being made in the House.”

38. Clause 46(4) is also relevant, as it has been pressed into

service by the petitioners to demonstrate that if any alleged breach

has taken place in the view of the House, then the matter cannot

and should not be sent to the Privileges Committee at all. Clause

46(4) is also extracted herein under:

“46. Legislature Committees.

The Legislature transacts a great deal of business and discharges its responsibilities and over-seeing functions through its Standing Committees. These Committees are appointed by the House or by nomination by the Speaker. The system of Legislature Committees is very useful in dealing with matters, which could be considered in detail by a small number of Members rather than the House

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itself. Further the House does not have the necessary expertise or the time to discuss such matters in detail and decide. Hence recourse to the Committee system is made.

After the Constitution came into force, the Committees of the House have gained a major role in overseeing the various aspects of the Government. A Committee is called "Legislature Committee", if it is appointed or elected by the House or nominated by the Speaker. It works under the direction of the Speaker and presents its report to the House or to the Speaker. Secretarial assistance to the Committees is rendered by the Legislature Secretariat.

The Committees can be divided into 'Financial Committees' "Scrutiny Committees" and other "Permanent Committees" of the House. The Committee on Estimates, The Committee on Public Accounts and the Committee on Public Undertakings are the "Financial Committees".

(1) to (3) ***

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(4) Committee of Privileges The Committee of Privileges is constituted under Rule 227 of the Assembly Rules. The Committee of Privileges consists of the Leader of the House, the Leader of the Opposition and the Deputy Speaker who are members ex-officio and fourteen other members to be elected by the Assembly from amongst its members. The Committee shall hold office for each financial year or till a new Committee is constituted. The Chairman of the Committee is nominated by the Speaker from amongst the members of the Committee. By convention the Deputy Speaker is nominated as the Chairman of the Committee.

The functions of the Committee is to examine and report to the House about their findings on the cases of breach of privilege that are referred to it by the House or by the Speaker.

Notice of a motion to raise a matter of privilege together with brief statement shall be given at least one hour before the commencement of the sitting on the day on which the motion is proposed to be made to the Speaker, the Leader of the House and the Secretary and consent of the Speaker shall be obtained. The notices intended for the Leader of the

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House may be handed over to the Secretary for forwarding it to the Leader of the House, the Speaker may waive such notice and deal with the matter as he deems fit.

A matter of privilege must be raised after the questions and before the list of business for the day is entered upon. The matter of privilege arising during the sitting of the House shall be entitled to immediate precedence over all other business. The Speaker, before giving his consent to the matter being raised in the House, must satisfy himself that the matter proposed to be raised is of recent occurrence and that it warrants the interference of the House. The Speaker is empowered to withhold his consent if the matter is of a trivial nature. In the case of a breach of privilege committed in the actual view of the House, the matter shall be dealt with by the House immediately without reference to the Committee.

If the Speaker holds that a prima facie case has been made out, the matter is referred to the Privilege Committee on a motion moved by a Member.

After the presentation of the Report of the Committee on a matters referred to it, the House on

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a motion moved by the Chairman or any Member of the Committee or any other Member, takes decision on its recommendation.”

39. The question raised is that, can the validity of the notice

itself be challenged at this stage when only a notice has been issued

and the Committee of Privileges is yet to deliberate on the same. It

would, therefore, be necessary to traverse on the authorities that

have been relied on by the learned Senior Counsel for the

respondents to understand the legal position dealt with by the High

Courts and also the Apex Court in this regard.

40. One of the earliest judgments that have been cited on

behalf of the respondents is in the case of L.N.Phukan and others

v. Mohendra Mohan Choudhury and others, AIR 1965 Assam

and Nagaland 74, particularly paragraphs 20 and 21, which are

extracted herein under:

“20. In the above case it was clearly laid down that even if the powers and privileges claimed and the immunities conferred by Article 194(3) of the

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Constitution are repugnant to the fundamental right, they will not be void to the extent of the repugnancy. The contention raised in this case on behalf of the Petitioner was that he had a fundamental right under Article 19 of the Constitution and by issuing a notice calling upon him to show cause as to why he should not be dealt with for the breach of the privilege of the House his fundamental right has been affected. This was repelled. Even in the majority opinion of the Supreme Court it has been held that the observations in the case of AIR 1959 SC 395 were confined to the case of a fundamental right under Article 19 of the Constitution. Once it is found that the. House has got a right to deal with its own contempt or breach of privilege, the notice issued by the Privileges Committee cannot be said to be without jurisdiction and thus the Petitioners will not be entitled to any writ of prohibition. In our opinion thus the Petitioners are not entitled to any relief at this stage of the proceedings both on the ground that the quashing of the notice will amount to the quashing of the proceedings of the House which the courts of the land are precluded from doing in view of the

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provisions of Articles 212 and 194(2) of the Constitution and also on the ground that the House having the power to take action for the breach of its privileges, it must be left to the House itself to determine whether there has in fact been any breach of its privileges and the court will not at this stage interfere with the exercise of such a power by the Privileges Committee. In this view of the matter it is not necessary for us to go into the question whether the report or the Commissioner in the circumstances of the present case can or cannot be said to be a proceeding or a document of the House and further whether on the face of it the publication constitutes the contempt of the House or not.

13. Regarding the question raised as to the right of the Petitioners to approach this Court under Article 226 of the Constitution it is sufficient to point out that if we had held that the notice was without jurisdiction, obviously the Petitioners against whom the notice was issued, had every right to approach this Court under Article 226 of the Constitution for the quashing of the proceedings arising out of the said notice. In the result, therefore, we reject these

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petitions. But in the circumstances the parties will bear their own costs.”

41. The next decision cited by the respondents is in the case

of C.Subramaniam (supra), where a Full Bench of this Court, while

dealing with a case where a writ of prohibition had been prayed for,

held that a prohibition would not lie as the Speaker has jurisdiction

over the subject matter and the noticee therein would have to show

cause as to whether a breach of privilege was committed by him or

not.

42. It was also pointed out that such a premature exercise

was also not approved of by the Constitution Bench in the case of

Raja Ram Pal (supra), paragraphs 54 and 55, which are extracted

herein under:

“54. The case of Pandit Sharma did not end there. Subsequently, the Legislative Assembly of Bihar came to be prorogued several times and the committee of privileges was also reconstituted. This led to a fresh notice being issued to Pandit Sharma in the wake of which he brought another writ petition

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under Article 32 of the Constitution, substantially raising the same questions and contentions as had been agitated in the earlier proceedings by him before this Court. This writ petition was dismissed by the Constitution Bench (eight Judges). The judgment is reported as M.S.M. Sharma v. Dr. Shree Krishna Sinha [AIR 1960 SC 1186 : (1961) 1 SCR 96 (Eight Judges)] hereinafter referred to as Pandit Sharma (II).

55. In para 10 of the judgment, this Court observed thus: [Pandit Sharma (II) case [AIR 1960 SC 1186 :

(1961) 1 SCR 96 (Eight Judges)] , AIR pp. 1190-91]:

“10. … It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had

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not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No court can go into those questions which are within the special jurisdiction of the legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of

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the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution: vide Janardhan Reddy v. State of Hyderabad [AIR 1951 SC 217 : 1951 SCR 344 : 1951 Cri LJ 736] .”

43. The next decision which has been relied on by the learned

Senior Counsel for the respondents is in the case of A.Kamaraj

(supra), where also, at the stage of notice, where some article

published in a Tamil Biweekly was raised as an issue of breach of

privilege by a Member of the State Legislative Assembly, the Court

upon examination of the facts of that case in paragraphs 48 and 49

held as under:

“48. Once it is seen that what is provided by Section 7 is only a presumption and not an absolute protection, it follows as a corollary that the question raised by the Petitioner would be a mixed question of fact and law. In other words, if a

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person wants to take advantage of a presumption, on the basis of the indication contained in the magazine itself, it is axiomatic that the opposite party will be entitled to rebut the presumption. Such rebuttal can take place only on a factual foundation. If it can be done only on a factual foundation, the opportunity to do so cannot be deprived to the other party who wishes to dislodge the presumption.

49. Merely because the notices issued by the Committee of Privileges do not contain any factual foundation for rebutting the presumption arising under Section 7, it cannot be concluded that the initiation of proceedings itself would amount to gross illegality or unconstitutionality. The law of pleadings as contained in the Code or the rules of evidence as contained in the Evidence Act would not apply stricto sensu to the proceedings before the Legislative Assembly or the Committee of Privileges.

Therefore, the Petitioner cannot contend that in the absence of any factual detail connecting him to the articles in question, Section 7 would afford an absolute immunity to him.” The Court heavily relied on paragraph 431 of the decision in the

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case of Raja Ram Pal (supra) to the effect that the threshold for

exercising judicial review in a case of that nature was indeed very

high and that the Court must begin with a presumption that the

Legislature's actions were valid.

44. Another decision of a learned Single Judge of the

Rajasthan High Court in the case of Ratna Gupta v. The

Secretary, Rajasthan Legislative Assembly Secretariat,

Jaipur and others, 2012 (2) WLN 488, was also relied on to

urge that it would be premature to interfere at the threshold of the

proceedings. Paragraph 8 of the said judgment is extracted herein

under:

“8. It is of course trite that this Court in exercise of its power of judicial review, can examine validity of any final decision even on the question of breach of privilege in the scope of Article 194(3) of the Constitution of India but law is also well settled that the Legislative Assembly is free to regulate its own procedure and this Court will not decide the manner in which the Assembly or its Committees have to proceed. It will be premature to presume that report

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of the Privilege Committee would in all probability be adverse to the petitioner and if at all adverse to her, what final view would be taken by the House on such report.”

45. It is emphasized by the learned Senior Counsel for the

respondents that there is no such contingency in the present case,

nor do the facts even disclose the existence of any interim

precipitate action that may warrant an exercise of power at this

stage under Article 226 of the Constitution of India, in view of the

clear pronouncement in the case of Kihoto Hollohan (supra), as

extracted in paragraph 111 to the following effect:

“111. In the result, we hold on contentions (E) and (F):

****** However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only

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exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.”

46. Faced with this challenge having been raised to the

maintainability of the writ petitions on behalf of the respondents, a

common argument has been mounted by Mr.Shanmughasundaram,

learned Senior Counsel; Mr.N.R.Elango, learned Senior Counsel, and

Mr.Anand Amit Tiwari, learned counsel for the petitioners that the

very foundational facts that have been set out for the issuance of

the notice do not make out any case of breach of privilege looking

to the background of the entire incident; the action is prompted by

mala fides and motivated by purely political considerations; the

procedure has been flagrantly violated by the Speaker, who has

made the reference with a premeditated and predetermined mind;

the alleged incident having taken place in the full view of the House,

ought to have been dealt with by the House immediately as per the

Rules and, therefore, the reference to the Committee of Privileges is

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without jurisdiction, and finally the subject matter of reference of

ascribing the act of bringing and exhibiting a prohibited item is

manifestly preposterous, in as much as the possession or display of

the item inside the Assembly that was brought in is not prohibited

by any law, nor the act is in violation of any law for the time being

in force. It is, therefore, submitted that in the background above, if

the very exercise of authority of issuance of notice is mere political

rivalry to douse the privilege of a Member to raise a valid question

inside the House, then there is no privilege which has been

breached, and rather it is the privilege of the petitioners to raise an

issue of vital importance that is sought to be throttled for

extraneous political considerations. In essence, there is law which

can define the act so as to construe it as a breach of privilege, as

the object which was exhibited or displayed inside the House did not

constitute a conduct of violating any prohibitory order engrained in

any law. It is, therefore, submitted that where there is a patent lack

of authority, based on a total misconstruing of an incident as a

breach of privilege, then this Court is not denuded of its authority in

interfering in the matter at this stage.

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47. All the learned counsel have traversed the arguments on

merits to substantiate their submissions, but on the issue of law

they have heavily relied on a Three Judges decision in the case of

Lokayukta, Justice Ripusudan Dayal (Retired) and others

(supra), paragraphs 35 to 41, and more particularly paragraphs 37

and 41, which are extracted herein under:

“37. There is no dispute that all the impugned proceedings or notices/letters/complaints made by various Members of the Madhya Pradesh Assembly claimed that the writ petitioners violated the privilege of the House. Ultimately, if their replies are not acceptable, the petitioners have no other remedy except to face the consequence, namely, action under the Madhya Pradesh Vidhan Sabha Procedure and Conduct of Business Rules, 1964. If any decision is taken by the House, the petitioners may not be in a position to challenge the same effectively before the court of law. In Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603] , seven Hon'ble Judges of this Court accepted a similar writ petition.

....

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41. It is clear from the above decisions that if it is established that the proposed actions are not permissible involving infringement of Articles 14 and 21 of the Constitution, this Court is well within its power to pass appropriate order in exercise of its jurisdiction under Articles 32 and 142 of the Constitution. Further, if the petitioners are compelled to face the privilege proceedings before the Vidhan Sabha, it would cause prejudice to them. Further, if the petitioners are compelled to face the privilege motion in spite of the fact that no proceeding was initiated against the Hon'ble Speaker or Members of the House but only relating to the officers in respect of contractual matters, if urgent intervention is not sought for by exercising extraordinary jurisdiction, undoubtedly, it would cause prejudice to the petitioners.”

48. Having considered the aforesaid judgments, we find the

ratio thereof appears to be that unless there is a pure question of

law involved, then in a matter which may involve a question of fact

and law, an interference by the High Court under Article 226 of the

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Constitution of India would be a premature exercise, as held in the

case of A.Kamaraj (supra). It has also been held that a writ of

prohibition would not lie over a subject matter, where the authority

under the Rules has the jurisdiction. In Raja Ram Pal (supra),

the Constitution Bench of the Apex Court did make an observation

that if it is a question of procedure, it would be premature to

consider the issue, as the Committee of Privileges is yet to conclude

its proceedings. It was then further held in the case of Ratna

Gupta (supra), that it would be premature to presume that the

report of the Privileges Committee in all probability would be

adverse to the petitioners and, therefore, interference is not called

for. Finally, in the case of Kihoto Hollohan (supra) the exceptions

carved out was with regard to interference in matters of imminent

interlocutory disqualifications or suspensions, which may have

grave, immediate and irreversible repercussions and consequences.

49. The legal position as broughtforth through various

pronouncements of the Apex Court, while exercising the powers of

judicial review in such matters did not completely dissolve the legal

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immunity in proceedings as presently involved and rather resolved it

by laying down parameters that came to be formulated in paragraph

431 of the judgment in the case of Raja Ram Pal (supra) which is

extracted hereinunder:

“Summary of the Principles relating to Parameter of Judicial Review in relation to exercise of Parliamentary Provisions

431. We may summarize the principles that can be

culled out from the above discussion. They are:

a. Parliament is a co-ordinate organ and its views do

deserve deference even while its acts are amenable

to judicial scrutiny;

b. Constitutional system of government abhors

absolutism and it being the cardinal principle of our

Constitution that no one, howsoever lofty, can claim

to be the sole judge of the power given under the

Constitution, mere co-ordinate constitutional status,

or even the status of an exalted constitutional

functionaries, does not disentitle this Court from

exercising its jurisdiction of judicial review of action

which part-take the character of judicial or quasi-

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judicial decision;

c. The expediency and necessity of exercise of power

or privilege by the legislature are for the

determination of the legislative authority and not for

determination by the courts;

d. The judicial review of the manner of exercise of

power of contempt or privilege does not mean the

said jurisdiction is being usurped by the judicature;

e. Having regard to the importance of the functions

discharged by the legislature under the Constitution

and the majesty and grandeur of its task, there

would always be an initial presumption that the

powers, privileges etc have been regularly and

reasonably exercised, not violating the law or the

Constitutional provisions, this presumption being a

rebuttable one;

f. The fact that Parliament is an august body of co-

ordinate constitutional position does not mean that

there can be no judicially manageable standards to

review exercise of its power;

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g. While the area of powers, privileges and

immunities of the legislature being exceptional and

extraordinary its acts, particularly relating to

exercise thereof, ought not to be tested on the

traditional parameters of judicial review in the same

manner as an ordinary administrative action would

be tested, and the Court would confine itself to the

acknowledged parameters of judicial review and

within the judicially discoverable & manageable

standards, there is no foundation to the plea that a

legislative body cannot be attributed jurisdictional

error;

h. The Judicature is not prevented from scrutinizing

the validity of the action of the legislature

trespassing on the fundamental rights conferred on

the citizens;

i. The broad contention that the exercise of privileges

by legislatures cannot be decided against the

touchstone of fundamental rights or the

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constitutional provisions is not correct;

j. If a citizen, whether a non-member or a member

of the Legislature, complains that his fundamental

rights under Article 20 or 21 had been contravened,

it is the duty of this Court to examine the merits of

the said contention, especially when the impugned

action entails civil consequences;

k. There is no basis to claim of bar of exclusive

cognizance or absolute immunity to the

Parliamentary proceedings in Article 105(3) of the

Constitution;

l. The manner of enforcement of privilege by the

legislature can result in judicial scrutiny, though

subject to the restrictions contained in the other

Constitutional provisions, for example Article 122 or

212;

m. Articles 122(1) and Article 212(1) displace the

broad doctrine of exclusive cognizance of the

legislature in England of exclusive cognizance of

internal proceedings of the House rendering

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irrelevant the case law that emanated from courts in

that jurisdiction; inasmuch as the same has no

application to the system of governance provided by

Constitution of India

n. Article 122(1) and Article 212(1) prohibit the

validity of any proceedings in legislature from being

called in question in a court merely on the ground of

irregularity of procedure;

o. The truth or correctness of the material will not be

questioned by the court nor will it go into the

adequacy of the material or substitute its opinion for

that of the legislature;

p. Ordinarily, the legislature, as a body, cannot be

accused of having acted for an extraneous purpose

or being actuated by caprice or mala fide intention,

and the court will not lightly presume abuse or

misuse, giving allowance for the fact that the

legislature is the best judge of such matters, but if in

a given case, the allegations to such effect are made,

the court may examine the validity of the said

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contention, the onus on the person alleging being

extremely heavy;

q. The rules which the legislature has to make for

regulating its procedure and the conduct of its

business have to be subject to the provisions of the

Constitution;

r. Mere availability of the Rules of Procedure and

Conduct of Business, as made by the legislature in

exercise of enabling powers under the Constitution,

is never a guarantee that they have been duly

followed;

s. The proceedings which may be tainted on account

of substantive or gross illegality or unconstitutionality

are not protected from judicial scrutiny;

t. Even is some of the material on which the action

is taken is found to be irrelevant, the court would still

not interfere so long as there is some relevant

material sustaining the action;

u. An ouster clause attaching finality to a

determination does ordinarily oust the power of the

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court to review the decision but not on grounds of

lack of jurisdiction or it being a nullity for some

reason such as gross illegality, irrationality, violation

of constitutional mandate, mala fides, non-

compliance with rules of natural justice and

perversity.”

50. Applying the aforesaid principles, this is not a case where

there was any imminent threat of any suspension or interlocutory

disqualification, but at the same time, we find one issue which may

deserve consideration in the light of the observations made in the

case of A.Kamaraj (supra). In that case, a legal issue was also

raised contending that Section 7 of the Press and Registration of

Books Act did provide for an immunity, but it could not be an

absolute immunity in the absence of the facts indicated in the show

cause notice. Further, a presumption raised in favour of the

petitioners about immunity was a rebuttable presumption and then

the Court went on to hold that since it was a mixed question of fact

and law, therefore, it would not like to interfere. In the case of

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L.N.Phukan and others (supra), it was observed that if the notice

was without jurisdiction, one could approach under Article 226 of

the Constitution of India.

51. In the instant case, from the pleadings on record, there is

no dispute on this fact between the parties that some Gutkha

sachets and photographs of some shops allegedly selling Gutkha

were brought inside the House and during the discussion, on the

request for grant, the Leader of the Opposition rose and raised this

question alleging that the Government had failed to take

appropriate action and Gutkha was being freely sold in the State of

Tamil Nadu. The exact averments are already extracted herein

above, which speak for themselves. The fact of displaying the

Gutkha sachets and the photographs has not been denied. The

notices and the action proposed to be taken is based on the Minutes

of the Speaker recorded on 19.7.2017 to the effect that the act of

bringing in and exhibiting prohibited items raises an issue of breach

of privilege and the same was referred to the Committee of

Privileges. There is no other fact and the facts alleged are not

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disputed. In such a situation, the question of bringing in and

exhibiting not being disputed, the only question is as to whether

Gutkha could be treated as a prohibited item in law for the purpose

of display inside the House.

52. The stand taken by the respondents through their counter

affidavit and the pleadings is clearly to the effect that Gutkha is a

banned item and for the purpose of ban, reliance has been placed

on the notification dated 23.5.2017, which prohibits the

manufacture, transportation, storage and sale of Gutkha, as it is

injurious to human life on consumption. The words possession,

consumption and display are not mentioned in the said notification.

The cause for treating it to be a prohibited item, therefore,

emanates from the prohibition contained in the notification dated

23.5.2017 issued under the Food Safety and Standards Act, 2006

and a violation of Clause 16(ix) of the Practice and Procedure

Handbook. The extract of the notification dated 23.5.2017 relating

to the subject matter is reproduced herein under:

“THE COMMISSIONER OF FOOD SAFETY AND DRUG

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ADMINISTRATION, TAMIL NADU.

BAN OF MANUFACTURE, STORAGE, SALE OR DISTRIBUTION OF PANMASALA, GUTKHA CONTAINING TOBACCO AND NICOTINE AS

INGREDIENTS IN THE STATE OF TAMIL NADU FOR FURTHER PERIOD OF ONE YEAR FROM 23RD MAY 2017 UNDER THE FOOD SAFETY AND DRUG ADMINISTRATION ORDER.

(No. 1418/2013/S1/FSSA.) No.VI(1)/155(a)/2017.

WHEREAS regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, made by the Food Safety and Standards Authority of India in exercise of the powers conferred by clause (i) of sub-section (2) of section 92, read with section 26 of the Food Safety and Standards Act, 2006 (Central Act 34 of 2006) provides that tobacco and nicotine shall not be used as ingredients in any food products, as they are injurious to health;

AND WHEREAS, Gutkha and Panmasala are food products in which tobacco and nicotine are widely used as ingredients now-a-days;

AND WHEREAS, it is expedient to prohibit Gutkha and Panmasala in the State of Tamil Nadu, being

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food products in which tobacco and nicotine are widely used as ingredients;

AND WHEREAS Chewing Tobacco is processed by the manufactures along with the eatables and the same is meant for chewing purpose and the said product is supposed to be used by keeping it inside the mouth and chewing it. The act of chewing ensures that chemicals go in to the saliva and becomes part of the human digest system, the said food article if consumed will endanger human health and well- being and whereas if consumption of these food articles is allowed with out prohibition the well-being of current and future generations will be compromised and hence it is to be prohibited.

NOW, THEREFORE, in exercise of the powers conferred by clause (a) of sub-section (2) of section 30 of the Food Safety and Standards Act, 2006 (Central Act 34 of 2006), the Commissioner of Food Safety of the State of Tamil Nadu, in the interest of public health, hereby prohibits the manufacture, storage, transport, distribution or sale of Gutkha, Panmasala, Chewing Tobacco and any other food products containing tobacco or

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nicotine as ingredients, by whatsoever name it is available in the market, in the whole of the State of Tamil Nadu for a further period of one year with effect from 23rd May 2017.

Chennai-600 006, P. AMUDHA, 23rd May 2017. Commissioner of Food Safety.”

53. The sachets of Gutkha that were being displayed along

with photographs was not a display of consumption, nor the

possession of it was denied. What has been urged by the learned

counsel for the petitioners is that possession per se itself is not

storage and for that heavy reliance has been placed on the

judgment in the case of Bijaya Kumar Agarwala case (supra).

There is also no allegation either in the proceedings or in the

affidavits filed by the respondents that the Gutkha sachets were

torn and consumed. There is also no allegation of any injury being

caused on account of consumption of Gutkha sachets, so as to

attract any penal provision. There is no evidence or allegation of

the petitioners having been either subjected to any prosecution or

proceedings for having allegedly breached the prohibition as

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contained in the notification dated 23.5.2017. On the other hand,

any allegation on that count cannot be a matter of examination or

trial by the Committee of Privileges or the House. The question is

that based on the notification dated 23.5.2017, can it be said that

the conduct of the 21 MLAs in displaying the Gutkha sachets within

the Assembly was prohibited under the provisions of the notification

dated 23.5.2017 so as to constitute it to be an act to be construed

as a conduct prohibited in law.

54. As observed above, on the basis of these undisputed

facts, can this Court at this stage of show cause notice render an

opinion about the prohibition contained in the notification dated

23.5.2017 or of any breach of privilege having committed by the

Members or not. In our considered opinion, the said question has

to be answered in two parts. The first is the question of law as

posed by us herein above vis-a-vis the conduct of the petitioners of

displaying Gutkha sachets being prohibited in law. We find this to

be a pure legal question and for which the Court is empowered to

answer.

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55. The constitutional bar contained under Article 212 makes

it impermissible for the Courts to enquiry into “irregularity of

procedure”. The power of the Courts to exercise judicial review in

such matters have been dealt with in various cases that have

already been referred to, but fundamentally there is a

jurisprudential role of the Courts, which is their duty, to be

exercised in order to discipline the exercise of power and to keep

public authorities within due bounds. The length and breadth of

judicial review available, particularly in the matter of privileges of

the House of legislature, have been discussed in a large number of

decisions that have been cited at the bar, including the decision in

the case of Pandit M.S.M.Sharma (supra) and in the case of Raja

Ram Pal (supra).

56. It would be apt to remember Marbury v. Madison, 5

U.S. 137 (1803), where a landmark constitutional case arising out

of a dispute with regard to the appointment of Justices of Peace

gave rise to a broad question of governance of society on

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established binding principles with powers to the Courts to decide

basic and fundamental principles of the Constitution. The power of

judicial review was exercised by the U.S. Supreme Court holding

that if the Constitution was a superior law, then an act repugnant to

it must be invalid. In arriving at this conclusion, the Court found

that the reviewing of laws to judge their conformity with the

Constitution was the essence of the Courts judicial duty. There

cannot be an abdication by the Courts of such duty and, therefore,

in our opinion, the issue raised is one of the freedom of expression

of the Members of the House inside the House, which stands

guaranteed under Article 194 of the Constitution of India, which

cannot be breached under the garb of any law prohibiting the rights

of the Members to express themselves inside the House in a

manner which does not amount to breach of any law.

57. To curb the power of the Court is to suffocate the freedom

and independence which the Constitution confers on superior Courts

in the tripartite federal arrangement, representative of the doctrine

of separation of powers. Lawfulness of action is a judicial function

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and it is, therefore, the Court that has to perform this function, as it

is an integral part of its function. Judicial review is not supposed to

be viewed as policing, but rather conserving and preserving the rule

of law so as to ensure that all authorities act within the confines of

their power in an accountable way. Wherever the law is wrongly

construed or applied, the power and authority of Courts to interpret

and pronounce on the same steps in. They do not usurp power,

rather exercise it constitutionally conferred on them. Law should

have a degree of predictability that is ensured through judicial

review.

58. There are no facts in dispute pertaining to this issue nor

are we entering into an issue of irregularity in procedure except for

the pure legal issues raised. The exhibition of gutkha sachets and

the photographs, whether can be treated as being prohibited from

exhibition inside the House in terms of the Notification dated

23.5.2017 is not a question of procedural irregularity in the

proceedings of the House for breach of privilege, but is an allegation

of substantive illegality where the petitioners are alleged to have

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acted and conducted themselves by such act that can be termed as

prohibited in law. A judicial review would therefore be permissible in

terms of the legal propositions that have been pointed out by the

learned counsel for the petitioners and to illustrate the same, one

can refer to paragraph 304 of the judgment in the case of Roger

Mathew (supra) which is extracted herein under:

“304. The fundamental constitutional basis for the distinction between an irregularity of procedure and an illegality is that unlike in the United Kingdom where Parliamentary sovereignty governs, India is governed by constitutional supremacy. The legislative, executive and judicial wings function under the mandate of a written Constitution. The ambit of their powers is defined by the Constitution. The Constitution structures the powers of Parliament and the state legislatures. Their authority is plenary within the field reserved to them. Judicial review is part of the basic structure of the Constitution. Any exclusion of judicial review has to be understood in the context in which it has been mandated under a specific provision of the Constitution. Hence the provisions contained in Article 122 which protect an alleged irregularity of procedure in the proceedings

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in Parliament being questioned cannot extend to a substantive illegality or a violation of a constitutional mandate.” Then, whether the issue can be raised at this stage so as to violate

the quia timet rule or whether it is answered finally, does not

matter on the facts of the present case as whether the conduct of

the petitioners is prohibited by law is within the scope of judicial

review without the same being a mixed question of law and fact or

even involving questions of fact. The position in this case is

therefore distinct from the issue of qualification or disqualification

under the Tenth Schedule which was the issue involved in Kihoto

Hollohans’s case (supra).

59. To understand that the present case is being entertained

by us only on a question of law on the admitted facts, we may

extract paragraph 51 of our Division Bench judgment in the case of

Ravisam v. Government of Tamil Nadu, rep. by its Secretary

to Government Housing and Urban Development, Chennai,

(2020) 5 MLJ 720, where we had the occasion to discuss as to

whether the High Court is competent to investigate questions of fact

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and also as to the distinction between law and fact. The said

paragraph is extracted herein under:

“The question of appreciating bare minimum facts

which at times may be disputed, have to be

assessed once non-consideration of relevant

material is taken as a ground or any patent

perversity is pointed out. From this angle, we

would like to extract the following paragraph from

Halsbury's Laws of England, which is extracted

herein under:

'613. The distinction between law and facts. The distinction between what will be treated as a question of law and what will be treated as a question of fact is one of importance. In general, where a body makes an error of law in reaching a decision, it will act without jurisdiction or power, and the court may quash that decision on an application for judicial review. By contract the court will generally not intervene on the ground that a body

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has reached an erroneous finding of fact unless the finding is manifestly unreasonable or a mistake has been made as to an established and material fact that gives rise to unfairness or the finding of fact was otherwise reached through an error of law or is a precedent fact.

There is often difficulty in deciding whether a question should be classified as one of law or as one of fact (or fact and degree). Determination of the primary facts is not a matter of law, but to make a finding unsupported by any evidence is an error of law. Drawing inferences from the facts fall within the ambit of a statutory description, within the ambit of a statutory description, are potentially classifiable as questions of mixed law and fact. The method of classification may be important, for judicial review of findings of law may entail an independent determination of the matter already decided, whereas a

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review of findings of fact is likely to be more limited. It has been said that if the question is one which only a trained lawyer can be expected to decide correctly, there is a presumption that it will be categorised as one of law.

Otherwise the question is usually treated as one of mixed law and fact, so that the range of meanings that can reasonably be ascribed to a statutory expression is a question of law; but whether the facts as found fall within the ambit of that expression will be held to be a question of fact, on which the decision of the competent authority will not be disturbed unless it is perverse (or is such that no reasonable authority properly instructed in the law could have arrived at it), or is erroneous because a wrong legal approach has been adopted.

A court will generally be reluctant to disturb the findings of a tribunal with specialised knowledge of technical

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subject matter, irrespective of whether these findings be classified as law or fact.”

Applying the said principles we are convinced that in the present

case we are called upon to determine a pure question of law on the

admitted facts relating to the ramifications of the Notification dated

23.5.2017.

60. To add to the aforesaid conclusion drawn by us, we may

also record that even at the interim stage the existence of a prima

facie case has to be examined as the power of judicial review carves

out exceptions as in the case of Kihoto Hollohan (supra) where the

acts of interim suspension or interim disqualification were taken to be

exceptions to the Quia Timet Rule. We may mention that this case

waited at the threshold for almost three years with the interim order

operating and the same was not even challenged before the higher

forum. The Court as well as the parties therefore had enough time in

brooding over the cause in order to cross the hunch of the Quia Timet

Rule. This fact itself may be sufficient for us to examine the question

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as to whether any further continuance of this position without

attempting a resolve would be justified. Litigation should be resolved

at the earliest and if possible at the threshold itself in the event a

priority is required in the decision-making process particularly in such

disputes that are unnecessarily rendered infructuous by passage of

time. More so, when the lawmakers themselves have invoked our

jurisdiction to declare the law.

61. In the instant case, the contention raised by the

petitioners is of a clear defective foundational fact having been

made the basis of the notice, namely, treating the conduct of the

petitioners to be prohibited by law, namely the notification dated

23.5.2017, as Gutkha was a banned commodity under a valid law.

It is the case of the petitioners that the approach is absolutely

perverse, as the assumption of authority to issue the notice is

clothed in a manner which reflects a colourable exercise of power

and, therefore, malice in law, as no such prohibition can be

gathered in respect of the conduct of the petitioners from the

notification dated 23.5.2017.

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62. We may also point out that at the stage of issuance of

show cause notice, a Division Bench of the Rajasthan High Court in

Prithviraj Meena and others (supra), on an analysis of the

submissions made in respect of the infirmities in a show cause

notice on account of mala fides and gross illegalities and the

constitutional and legal issues involved, prima facie found the

matter to be entertainable and entertained the writ petition holding

it to be maintainable.

63. The second question as to whether otherwise there was a

breach of privilege or not is a matter, in our opinion, within the

realm of the House, for which the Privileges Committee can proceed

to answer the same. This may also involve an issue of propriety or

impropriety of diction or of conduct that may be just unsuitable,

unseemly or unbecoming and may not cross the barriers of the

principles of breach of privilege. The question of pure illegality can

however be examined by the Court for the reasons set out herein

under.

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64. However, to understand the aforesaid split propositions

indicated by us herein above, we find that in our scheme of the

Constitution, constitutional supremacy reigns. The Legislative, the

Executive and the Judiciary are all creatures of the Constitution and

the laws made thereunder. They are governed by laws and not by

an unwritten Constitution as in England. The doctrine of separation

of powers in our federal structure has time and again been held to

be a core value under the Constitution and the functions of the

three organs of the State are delicately balanced.

65. An issue of law which requires interpretation after the

legislature has framed it can be interpreted by the Courts alone and

in this view we are supported by a long line of decisions and a few

of them require mention.

66. Once the Parliament makes a law and it walks out of the

Parliament, then the Apex Court, through the Constitution Bench

decision in the case of Sanjeev Coke Manufacturing Company v.

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Bharat Coking Coal Limited and another, (1983) 1 SCC 147,

enunciated that it is only for the Courts to say what the legislature

has said. Reference be made to paragraphs 16 and 25 of the said

report.

67. The second decision which follows the same is in the case

of Sushma Sharma and others v. State of Rajasthan and

others, 1985 Supp SCC 45, where a brief reference of the said

principle has been made in paragraph 36 of the said report. We are

also reminded of Bishop Benjamin Hoadly, 1759 who said:

“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.”

68. The third judgment is in the case of P.V.Narasimha Rao

v. State (CBI/SPE), (1998) 4 SCC 626, where in paragraph 114,

the Court referred to an earlier Constitution bench judgment in the

case of State of Karnataka v. Union of India, (1977) 4 SCC 608, and

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referring to paragraph (63) of the said judgment, held as under:

“114. The last of the cases to which reference need be made is State of Karnataka v. Union of India [(1977) 4 SCC 608 : (1978) 2 SCR 1] . It was held there that the Constitution vested only legislative power in Parliament and in the State Legislatures. A House of Parliament or State Legislature could not try anyone or any case directly, as a court of justice could. It could proceed quasi-judicially in cases of contempt of its authority and take up motions concerning its privileges and immunities because, in doing so, it sought removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arose, it had to be decided by the courts in appropriate proceedings. Beg, J. added:

(SCC p. 656, para 63)

“For example, the jurisdiction to try a criminal offence, such as murder, committed even within a House vests in ordinary criminal courts and not in a House of Parliament or in a State Legislature.”

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69. Thus, there is no ouster or exclusion of the authority of

the Court to examine the question of a pure legality of an issue

involved with the jurisdictional issue of the issuance of a notice.

The law relating to prohibition of a Gutkha sachet being possessed

by an individual, which in the peculiar facts is not alleged to be for

consumption inside the House, nor was it meant to be stored,

transported or possessed for sale resulting in consumption, cannot

be construed to be an act prohibited under the notification dated

23.5.2017. There is no law, nor was any shown to us that a mere

display of a Gutkha sachet which was with the clear intention of

drawing the attention of the entire Assembly towards an alleged

apathy of the Government in not tackling the menace of free sale of

Gutkha in Tamil Nadu was a conduct prohibited under the

notification dated 23.5.2017. There is neither a penumbral or

fringe doubt about the same in the absence of any law to the

contrary at present, or as on the date when the incident took place.

70. The presumption that the item is prohibited may be true

for the purposes as defined in the notification dated 23.5.2017, but

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in the present case, any element of such intended act which may

amount to a breach of the said Government Order has not been

established. Even otherwise, as per the decisions cited above, it is

also clear that the Legislature is not empowered to try any

substantive offence that may be triable by a Court of law and

justice. This is entirely preserved in Courts and, therefore, had

there been any alleged offence committed by the petitioners in

terms of the notification dated 23.5.2017, the same would be a

matter for the Courts to try, but that by itself would not amount to

a conduct prohibited in law resulting in breach of privilege of the

House.

71. What we intend to clarify is that carrying of Gutkha

sachets simpliciter may or may not be a breach of privilege, which

is still open to examination by the Committee of Privileges, but to

hold that the passage of the Gutkha sachets inside the House

amounted to transportation or storage or possession for

consumption is certainly not made out on the facts, as are admitted

between the parties and also from the Minutes recorded by the

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Speaker on 19.7.2017 as well as from a perusal of the impugned

notice dated 28.8.2017. A perusal of the notification dated

23.5.2017 would leave no room for doubt that the words used are

ban of manufacture, storage, sale or distribution of Pan Masala.

The reason given in the preamble of the notification is that since

Gutkha and Pan Masala are food products which are supposed to be

used by keeping it inside the mouth and chewing it, the same

becomes part of the human digestive system, as the chemicals go

into the saliva while chewing and consequently, its consumption

may endanger human health and well-being. It is for this reason

and for the well-being of the current and future generations that

prohibition of manufacture, storage, transport, distribution or sale

has been imposed. As already noted above, the petitioners were

not carrying out any such activity with the intention of promoting

chewing and consumption of Pan Masala, but were rather raising

their voice in support of the notification and for its rigorous

implementation. As explained in the case of Bijaya Kumar

Agarwala (supra), every possession is not storage, nor can it

amount to a transport at least in terms of the notification on the

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facts of the present case, as it is not the case of the respondents

that Gutkha was being brought inside the House for consumption.

The words used in the notification, in our opinion, have to take

colour from the purpose and the conduct of the petitioners, in order

to construe as to whether such an act will qualify as prohibition or

not. The intendment in the notification is to ban trade of Gutkha

and not to ban the freedom of speech, if it is utilized for the

purpose of promoting the ban. The notification entails penal

consequences and, therefore, it has to be construed strictly to

achieve the purpose of the notification, namely, the ultimate

protection of human life through a ban on its manufacture, sale,

etc.

72. This has to be understood in contrast to the possession of

narcotics or banned liquor or prohibited arms, the possession

whereof, per se, may amount to a breach what is prohibited by law.

This is not the case here. On a reading of the notification dated

23.5.2017, which we are interpreting on the peculiar facts of this

case, the petitioners are not being prosecuted under the prohibition

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clause as contained in the notification, but are being treated to have

brought in something and displayed, which otherwise is prohibited

under the notification dated 23.5.2017. The purpose for which it

was being displayed was to register a protest to highlight and

expose the vulnerability of law and the law enforcing agencies in

their alleged failure to enforce the same. The right to freedom of

expression and using the Gutkha sachets and photographs as a tool

of such expression is the intent and purpose that can be clearly

culled out from the proceedings of the House dated 19.7.2017. As

has already been held in Keshav Singh's case (supra) and other

cases thereafter, including the case of Raja Ram Pal (supra), the

restrictions on the freedom of expression as understood under

Article 19(1)(a) of Part III of the Constitution of India are not

available inside the House. Such an expression of protest by virtue

of the notification dated 23.5.2017 cannot be said to be prohibited

under the said notification.

73. There is yet another dimension of pragmatism and to an

extent commonsense as well. This element in the process of judging

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can be supported both by the theorists of Legal Realism and Legal

Formalism, which may happen in unique circumstances as in the

present case. We may point out that the Formalists have described a

judicial opinion being capable of being broken down into a three part

equation consisting of the Rule of Law – ‘R’; the Facts of the case – ‘F’;

and the Decisions of the Judge – ‘D’, represented as R x F = D. The

Realists, on the other hand, suggest their own formula, viz. the Judicial

hunch or Stimuli – ‘S’ x the Judge’s Personality – ‘P’ = the Decision –

‘D’. [Jerome Frank and others, as discussed by Timothy J.

Capurso in his article on Theories on Judicial Decision-making, 1998,

University of Baltimore Law Forum]. Practical wisdom and natural

intelligence are the foundation of commonsense which is regarded

by the philosophers of commonsense as an impression of unity at

the center of the five senses of human beings. This power or faculty

is described by philosophers to be a moderator or a judge of all

actions to discern differences by which a human being can test the

truth of knowledge and morality of actions. It is this power of the

mind which perceives truth and commands belief. When a person

possesses those perceptions, associations and judgments, in

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relations to persons and things, which agree with those of the

generality of mankind, he is said to possess commonsense (1

Chit.Med.Jur.334). Applying the principles of commonsense, the

conduct of the petitioners was obviously not to advertise or to foster

or encourage the consumption of Gutkha nor was it an attempt at

obscenity. In the words of Justice Stevenson of the U.S. Supreme

Court in Mc Intyre v. Ohio Elections Commission, 514 U.S. 334

(1995) what has to be seen is “was it pernicious or a honourable

tradition of advocacy and of dissent”. Judging the legality on the

anvil of the Notification dated 23.5.2017 coupled with public interest

that counterbalances any claim of privilege, we find that the

conduct of the petitioners on this reasoning as well may not be a

prohibited act in terms of the Notification dated 23.5.2017.

74. This can be viewed from the angle of the doctrine of

Wednesbury unreasonableness as well. A reasonable action

means which is rational and not excessive or immoderate.

Reasonableness is a facet of Article 14 of the Constitution of India.

However, before an action is struck down, the Court must be

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satisfied that a case has been made out for exercise of the power of

judicial review. We have already indicated above our reasons for

treating the action initiated on the basis of the Notification dated

23.5.2017 as being without any basis and, therefore, we are also of

the opinion that the same does not pass the test of reasonableness

thereby clearly violating Article 14 of the Constitution of India. The

reference of prohibition in the impugned notice traceable to the

Notification dated 23.5.2017 was irrelevant and therefore, the

application of Wednesbury principles are apt on the facts of the

present case.

75. In the above background, the argument on behalf of the

petitioners that the foundational facts of treating the petitioners

conduct as prohibited in law suffers from a totally erroneous

approach and leads to a jurisdictional fault to that extent has to be

accepted.

76. The action of the Committee of Privileges in issuing the

impugned notices dated 28.8.2017 treating the conduct of the

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petitioners to be one that is prohibited by law, in the present case

by the Notification dated 23.5.2017, is erroneous and violates the

constitutional rights of the petitioners under Article 194 of the

Constitution entailing civil consequences. The recital in the

impugned notices suffers from the gross illegality of a fundamental

error as observed above and therefore a step in that context in

furtherance of the show cause for a breach of privilege is

unwarranted on the facts of the present case.

77. The petitioners have laid special emphasis on the breach

of Rules by the Speaker in processing the matter. We have quoted

the Rules as also the Practice and Procedure Handbook on which

reliance has been placed. We may clarify at the outset that the

Handbook of Practice and Procedure does not appear to have been

framed in exercise of any constitutional or statutory power, but it

appears to have been framed for the guidance of the own Members

of the Assembly. They may not be mandatory in character, but

they do have a role in understanding the conduct of the Members of

the House. The argument that has been raised on behalf of the

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petitioners that on the one hand the respondents are treating the

Handbook as also one of the basis for taking action for breach of

privilege by relying on violation of Clause 16(ix) of the said

Handbook, but when it comes to Clause 46(4), where a mention has

been made that a breach committed in full view of the House can be

laid before the House without reference to the Privilege Committee,

then the argument is advanced that the Handbook does not indicate

an established convention and may amount to a wrong practice.

The legal position on a wrong practice, as pointed out by the

learned Advocate General, has been reflected upon in the case of

Rohitash Kumar and others v. Om Prakash Sharma and

others, (2013) 11 SCC 451, where it has been held that in a clear

case of error, the Court should without hesitation refuse to follow an

erroneous construction for the reason that wrong practice does not

make the law. The Court further went on to hold in paragraph (15)

as follows:

“In D. Stephen Joseph v. Union of India & Ors., (1997) 4 SCC 753, the Court held that, 'past practice should not be upset provided such practice conforms to the rules' but must be ignored if it is found to be de hors

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the rules.”

78. However, on the other side, we find that there are certain

conventions that have taken the shape of a customary practice and

may amount to an established convention. This issue is open to the

House to decide, but the argument on behalf of the petitioners has

to be taken into account that the respondents cannot be allowed to

probate and approbate by contending that part of the Handbook is

mandatory and its violation will entail breach of privilege, and on

the other hand contend that part of the Handbook may amount to a

wrong practice contrary to the statutory rules. There is no doubt,

however, that statutory rules framed under Article 208 of the

Constitution of India would govern the field so long as they are in

force. The respondents, therefore, cannot ignore this aspect when

proceeding to take a decision on an issue of breach of privilege

which has civil consequences.

79. Clause 16 of the said Practice and Procedure, under Sub-

Clause (ix) mentions that Members should not bring into the House

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umbrellas, walking sticks or any other objects prohibited by law. As

conceded by the learned Advocate General, the same does not have

any statutory force, but the words “prohibited by law” used in the

said Clause appears to have been made the basis of issuance of

notice. If the same does not have any statutory force, then an

exercise of power in the absence of a statutory backing may

indicate an incorrect recital in the notice. This is what emanates

from the arguments of the respondents themselves. However, we

are of the opinion that even if it is not a statutory rule, it cannot be

contended by any Member that they can bring into the House an

object prohibited by law. A Member, therefore, cannot walk into

the House with a prohibited weapon or any obnoxious material or

any such thing which may be considered in law to be prohibited. At

the same time, we may also emphasize that there are many items

which are not prohibited by law, for example, umbrellas and walking

sticks as mentioned in the Clause referred to herein above. This

can be further illustrated by the example given by the learned

counsel for the respondents that if a pair of slippers which is

supposed to be worn in the feet inside the House is carried in the

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hands to raise any protest against tax on slippers, such an act may

not be prohibited by law, but the showing of the slippers on the face

of the House or to the Chair may amount to a breach of privilege.

80. In this regard, the reference made by the learned counsel

for the respondents to the decision in Vijayakant case (supra)

deserves reference. A Member, who was the then Leader of the

Opposition, was suspended for his alleged gestures of raising his

hand, rolling his tongue and attempting to move forward. A

challenge raised to the same was rejected by a learned Single Judge

of this Court. The distinction between disregard to the authority of

the Chair and breach of privilege was discussed in the said case and

it was held that the same was a conduct unacceptable, which will

amount to a breach of privilege.

81. The other argument based on Clause 46(4) of the Practice

and Procedure Handbook is that if a breach of privilege has been

committed in the actual view of the House, then the matter has to

be dealt with by the House immediately without reference to the

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Committee. We find this recital contained in the Practice and

Procedure Handbook to be not contrary to the Rules. Rule 221 may

be referred to, where it is provided that the Speaker can give

consent to raise a question of privilege after the questions and

before the list of business for the day is entered upon, provided the

question of privilege arising during the sitting of the House shall be

entitled to immediate precedence over all other business. The

House can, therefore, as a matter of precedence discuss a question

of privilege giving it priority over all other business. The question

of without reference to the Committee, as referred to in Clause

46(4) of the Practice and Procedure Handbook, may not be in clear

conformity with the said Rule, but its implications may have to be

assessed.

82. What the petitioners contend is that if the breach has

been committed in the actual view of the House, then it should be

dealt with immediately, without reference to the Committee.

Firstly, the Practice and Procedure Handbook is not a Rule and,

therefore, it cannot override the provisions of Rules 219 to 230

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contained in Chapter XX(4) of the Tamil Nadu Legislative Assembly

Rules, referred to herein above, which have been framed in exercise

of the powers under Article 208 of the Constitution of India. The

same gives an overriding power to the Speaker under Rule 226,

which, notwithstanding anything contained in the Rules, empowers

the Speaker to refer any question of privilege suo motu to the

Committee of Privileges for examination, investigation and report.

We find from the records and pleadings that the Speaker had

announced this on 19.7.2017 itself, which also stands recorded in

his Minutes of the same date. Thus, the House has not been

denuded of its authority in dealing with the matter and it has to

come back to the House after the Committee of Privileges submits

its report, as the final and ultimate decision has to be taken by the

House.

83. The Practice and Procedure Handbook will, therefore, have

no overriding effect over the Rules so as to bypass the Privileges

Committee in the exercise of its statutory functions and the purpose

for which it has been constituted to ensure fairness in matters of

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privilege for a pre-exercise being undertaken before the House

finally resolves it. This in no way takes away the power of the

House, which can still choose to agree or disagree with the report of

the Committee of Privileges and pass a resolution as per its own

wisdom.

84. Learned counsel have also relied on the judgment in the

case of Nazir Ahmad (supra) and the judgment of the Apex Court

in the case of Babu Verghese and others (supra), to contend that

if a particular procedure has been provided and that act has to be

done in that manner, then it should be done in that manner alone

and not otherwise. As already indicated above, we do not find the

procedure undertaken by the Speaker to send the matter to the

Committee of Privileges to be vitiated by any Rule, rather it is in

conformity with the same. The aforesaid decisions, therefore, do

not come to the aid of the petitioners.

85. The question whether the Speaker enjoys any residuary

power to exercise his prerogative or not has to be understood in the

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context of Rule of Law inasmuch as every exercise of authority is

constitutionally ordained. Thus, the concept of Constitutional

Supremacy in India as against Parliamentary Sovereignty in the

United Kingdom is to be understood in this context. However, even

in England the Law was understood to be above the Sovereign right

from the days of Magna Carta and was explained by the House of

Lords by Lord Atkinson in the case of Attorney General v. De

Keyser’s Royal Hotel Limited, 1920 AC 508, as under:

“It is quite obvious that it would be useless and for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the Legislature (in the absence of compelling words) an intention so absurd. It was suggested that when a statute is passed empowering the Crown to do a certain thing which it might theretofore have done by virtue of its prerogative, the prerogative is

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merged in the statute. I confess I do not think the word “merged” is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same — namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.”

86. The learned Advocate General has submitted that even

assuming for the sake of argument that the notice was not very

happily worded, then the same is a matter of procedure and can be

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cured by the Committee of Privileges itself. On the other hand,

Mr.N.R.Elango has countered this submission contending that this

cannot be permitted keeping in view the judgment of the Apex

Court in the case of Mohinder Singh Gill and another (supra).

87. This issue as to whether the notice is defective or

otherwise is to be considered in the background as to whether the

bringing in and displaying of Gutkha sachets and photographs

relating thereto were by themselves a breach of privilege or not,

but the recital in the notice about the item being a prohibited item

can be determined by this Court without prejudice to the powers

and privileges of the Committee to cure its own defect.

88. Another argument has been advanced as being a clear

breach of procedure and both malice in fact and malice in law,

namely that the Speaker has exercised his power to make the

reference suo motu in a predetermined way by making known his

firm opinion that the conduct of all the petitioners was a clear

breach of privilege. It is urged that the Speaker being the head of

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the House has already rendered a decision in his individual capacity

and that is likely to prejudice the entire proceedings. The Speaker

could not have extended his final opinion while making a reference

and and which, according to the petitioners, has been done on

account of political loyalties to the Ruling Party. Thus, the power of

reference has been exercised colourably and in the facts of the

present case, having done so, it also suffers not only from malice in

fact, but also malice in law. To substantiate the said submission,

Mr.Amit Anand Tiwari, learned counsel for the petitioner has

pressed into service the judgment in the case of Gurdial Singh,

(supra).

89. The counter affidavit filed on behalf of respondents 2 to 4

specifically recites that the Speaker had only expressed a prima

facie view for the purpose of reference and it is not a

predetermination of the issue. Even though from the language

deployed by the Speaker there is a clear indication that the conduct

of the petitioners amounted to a breach of privilege by bringing in

and displaying Gutkha sachets and photographs of the shops selling

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Gutkha, but, in our considered opinion, there is no power with the

Speaker to clothe himself with authority for taking a decision in the

matter of breach of privilege as per the Rules indicated herein

above. Even if his language and expression indicate some form of

determination, they are just a reference to the facts which have led

to the reference and not beyond that. The Committee of Privileges

cannot take it to be a decision or an indication of an opinion so as to

influence the minds of the Members of the Privilege Committee.

The same is yet to be examined by the Privileges Committee and

there can be no presumption that all the Members of the Privileges

Committee would be influenced by any such indication of an opinion

expressed by the Speaker. The Speaker himself appears to be

considerate when it was announced by him that he would have

accepted it, had the Members taken permission from him. We,

therefore, find no reason to further delineate on this issue, without

prejudice to the rights of the petitioners to agitate the same before

the appropriate forum. Coming to the decision in the case of

S.Balasubramanian (supra), the Full Bench has categorically

noted that the Speaker of the House in that case had made a

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statement calling upon the Editor of the Journal to publish an

apology on the front page in respect of the offending nature of the

publication, which was considered to be a breach of privilege.

Learned counsel for the petitioners, on the strength of such

observations by the Full Bench, are attempting to draw a parallel

with the statement rendered by the Speaker in the present case. It

is true that the Speaker did promise to take action in the matter,

but cumulatively his statements do not amount to a final

pronouncement as was in the case of S.Balasubramanian

(supra). This parallel therefore, in our opinion, cannot lead to the

conclusion that the Speaker had already made up his mind to

punish the petitioners. This distinctive feature, therefore, in the

present case is not covered by the ratio of the decision in the case

of S.Balasubramanian (supra).

90. It has been urged that the petitioners have been deprived

of their opportunity to address the House as the incident was in full

view of the House, therefore, denial of such opportunity results in

violation of principles of natural justice. This argument also

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deserves rejection at this stage, in as much as Clause 46(4) of the

Practice and Procedure Handbook is not a statutory rule, but even

otherwise the petitioners still have the opportunity to contest this

position before the Committee of Privileges, whereafter the matter

will have to be placed before the House for consideration.

91. One of the other contentions that has been raised is that

the Constitution of the Privileges Committee is itself a concern for

doubting its bona fides, in as much as persons who are interested in

the subject matter, including the Deputy Speaker and several other

Members who have raised the issue are participants of the

Privileges Committee. It is, therefore, contended that any action

taken or report submitted by the Privileges Committee would be

vitiated by mala fides. The stage of determination about its own

constitution could not arrive and it is undisputed that such

Committees are constituted annually. The Committee to which it

was referred in the year 2017 has undergone changes and there are

other Members as well. Learned counsel contends that this would

be a case of continuing mala fides and, therefore, the very

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constitution of the Committee is bound to result in injustice.

92. We are not inclined to examine this contention at this

stage, in as much as the said Committee has been constituted and

reconstituted in the past three years and none of the Committees

had the occasion to consider the issue before it on account of the

interim orders that have been passed in favour of the petitioners.

To construe and presume that the same mala fides continue today

and the reconstitution of the Committees does not make any

difference would be a premature exercise on our part to presume

mala fides against the present constituted Committee of Privileges.

Even otherwise, Rule 228 of the Legislative Assembly Rules takes

care of this situation and in the event the proceedings are continued

by the Committee of Privileges, it shall be open to the petitioners to

raise such objections to be taken into account accordingly. In the

said background, the issue of doctrine of necessity and the

decisions in respect thereof need not be gone into.

93. The contention that has been vehemently argued by the

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learned counsel for the petitioners is that the entire action is

actuated by mala fides that can be collectively gathered from the

sequence of events after the demise of the Former Chief Minister,

Ms.J.Jayalalithaa on 5.12.2016. It is urged that the Ruling Party

suffered serious setbacks on account of its own defections and

withdrawal of support by its own members that led it to be reduced

to a minority government, and in that atmosphere, in order to allay

and dispel this doubt of survival of government and to prevent

facing a trust motion, the Ruling Party with the help of the Speaker

generated this breach of privilege motion in order to weaken the

opposition by any means.

94. It is pointed out that on 5.12.2016, Mr.O.Panneerselvam,

who is currently the Deputy Chief Minister, had been elected as the

Chief Minister, after the demise of Ms.J.Jayalalithaa. On account of

internal party differences, he resigned from the post of Chief

Minister on 5.2.2017. Mrs.Sasikala Natarajan, who had been

chosen by the AIADMK Party to be the next Chief Minister came to

be convicted in the disproportionate assets case on 14.2.2017. The

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Ruling Party, therefore, was left in a quandary and the current Chief

Minister, Mr.Edappadi K.Palaniswami, was sworn in on 15.2.2017.

His government was put to the test of confidence on the floor of the

House on 18.2.2017. Mr.O.Pannerselvam and 10 others voted

against the motion of confidence. This second turmoil led to a

petition being preferred before the Speaker under the Members of

the Tamil Nadu Legislative Assembly (Disqualification on Ground of

Defection) Rules, 1986 seeking disqualification of 11 AIADMK MLAs

on 20.3.2017.

95. It is during the continuance of the new government in the

background above that on 24.3.2017, Mr.U.Mathivanan, an MLA of

the DMK Party raised the issue of banned substances, including

Gutkha, being freely available in the State of Tamil Nadu with the

active participation of high officials and with allegations against a

Minister. The prohibition against the manufacture, storage,

transportation and sale of Gutkha was continued by the notification

dated 23.5.2017. On 29.6.2017, the petitioner, Mr.M.K.Stalin,

spoke about the income tax raids and investigation into large bribes

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that were allegedly transacted for facilitating Gutkha distribution in

Tamil Nadu. On 8.7.2017, Income Tax authorities raided godowns,

offices and residences of a Tamil Nadu based Pan Masala trader and

manufacturer on charges of tax evasion of Rs.250 Crores. On

11.7.2017, a complaint was lodged by Mr.J.Anbazhagan, a DMK

MLA, with the Central Bureau of Investigation and it is in this

background that the petitioner, Mr.M.K.Stalin, made his speech

protesting against the apathy of the Government in dealing with the

matter on the floor of the House on 19.7.2017, when some sachets

of Gutkha were displayed along with photographs of the shops

selling such Gutkha in Tamil Ndu.

96. It is the contention of Mr.N.R.Elango, learned Senior

Counsel that this entire chronology of events was being viewed as a

threat to the survival of the government and he has then relied on a

chart given by him to demonstrate the fluctuation of the strength of

the Ruling Party in the House, which came to be reduced on

22.8.2017, with 18 MLAs of the AIADMK Party writing to the

Governor withdrawing support from the government headed by the

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present Chief Minister. This culminated in reducing the strength to

114 in the 234 strength Assembly, which was less than half the

magic number of majority.

97. Mr.Amit Anand Tiwari, learned counsel for the petitioner

contended that the background in which the privilege motion was

moved was this political turmoil so as to cut down on the numbers

of the Opposition in order to reduce the total strength of the House,

so that the Ruling Party is able to demonstrate its majority in spite

of failing numbers. He submits that these mala fides continued with

the same situation continuing, and the minority government

struggling to survive, as the disqualification by the Speaker of the

18 MLAs of the AIADMK Party was upheld by the High Court in a

writ petition filed by them, by majority judgment of 2:1, as already

narrated above.

98. The petitioners had already challenged the show cause

notices impugned herein, where a stay order was passed on

7.9.2017. The party of the petitioners, namely, the DMK, also filed

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a writ petition seeking a direction for a trust vote for the

Government to demonstrate that it survived, which petition is still

pending.

99. The Deputy Speaker has filed a suit against the petitioner,

Mr.M.K.Stalin, seeking compensation and damages in respect of

these incidents and allegations against him. Apart from this, the

Chief Whip of DMK Party, Mr.R.Sakkrapani, has filed W.P.(C)

No.543 of 2020 before the Apex Court seeking a direction for the

Speaker to dispose of the disqualification petition of the 11 AIADMK

MLAs, including the present Deputy Chief Minister,

Mr.O.Pannerselvam, that was moved on 20.3.2017. The Apex

Court, on 8.7.2020, issued notice returnable in four weeks.

100. Mr.Tiwari, therefore, contends that the same issue which

arose with regard to the heavy fluctuation and the reducing

numbers of support to sustain the government in the House

continues to be the worry of the Ruling Party and it is for this

reason that this entire exercise of somehow or the other reducing

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the numbers of the DMK Party Members has been attempted by a

recourse to a breach of privilege motion on a total non issue, where

the Speaker has not played an impartial role and his predetermined

intentions are also part of the malicious action. He, therefore,

submits that it is both malice in law as well as in fact.

101. We have considered these submissions and we find that

the political unrest caused due to the switching over of loyalties and

walking over of members and their support is more of a vibrant part

of Indian politics. It has legal consequences which are well known

throughout all political circles and have been matters of legal

determination for long in the constitutional courts, where such

issues have been raised. The question is can such political

maneuverings in a democratic setup, where a government survives

on numbers, be said to be an act of malice, where a group of

elected Members or an individual Member exercises his

conscientious decision to support one party or the other, or to even

withdraw from such proceedings.

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102. The law of politics is not exactly a codified statutory law.

It is only the consequences of such actions that have been

regulated by statutory law. A political support in a vibrant

democracy being either withdrawn or extended, or even by way of

abstention, can be a matter of purely personal opinion depending

upon one's own thinking, philosophy and political relationships. If

a Member or a group of Members withdraw support or extend

support or abstain from such proceedings in a democracy, where a

government ordinarily survives by the rule of majority, can it be

said that any such action on account of political or personal

considerations be a malicious transaction, if it is done voluntarily,

according to one's own belief, by exercising voting rights or

abstention thereof inside the House?

103. To attribute malice to such a transaction and hold it to be

a foundation for a notice of breach of privilege may be a difficult

task, as a breach of privilege and its complaint has to be examined

only within the meaning of the words privilege and its breach. To

import political affiliations and maneuverings as the foundation of

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malice in a privilege motion can be at best an allegation, but, in our

opinion, it is difficult to determine in these court proceedings that

the notice which recites only the bringing in and exhibiting of a

prohibited item inside the House was actuated by such malice. The

initiation of the motion and the notice plainly and simply allege the

issue being raised by the display of alleged prohibited items. It is

correct that the incident on 19.7.2017 falls between a close

proximity of all the incidents that have been narrated by the

learned counsel for the petitioners, but merely because the incident

falls in between, the notice itself, the consequences whereof are yet

to be decided, cannot be conclusively and clinchingly said to be

actuated by malice, unless it is found that the powers to initiate the

privilege motion are a colourable exercise of power and arise out of

some element of personal bias or revenge, so as to constitute

malice. Political opposition and rivalry to either support or make

governments fall are a process of democracy, whereas a motion of

breach of privilege is only to maintain the dignity of the House and

uphold its high traditions in the conduct inside the House and to

constitutionally protect its Members. We will say nothing further as

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it would not be appropriate to pronounce upon such an issue finally

when the alleged breach may be examined by the Committee of

Privileges. Even otherwise, in an appropriate case, such an issue

may have to be examined on the touchstone of the political

question doctrine vis-a-vis loyalties and confidence in matters of

support or otherwise by Members of a legislative body in the

formation of a government and the impact of legal provisions on

such issues.

104. The learned Advocate General contended that this entire

sequence of events had not been correctly stated, as the

government continued to enjoy a majority confidence and at no

stage was there any lack of numbers to support the government.

We do not propose to enter into this issue of counting the numbers

either in support or otherwise, as we decline to go into this issue of

mala fides, being dependent upon political developments regarding

the sustenance of government.

105. Our findings therefore may be summarized as follows:

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(i) Privilege and breach of privilege is to be understood

as historically laid down in the case of Keshav Singh

(supra) and more elaborately explained in the case of

Raja Ram Pal (supra) supplemented with paragraph

30 herein above.

(ii) There is no dispute on admitted facts and we have

proceeded only to decide only a pure question of law

that raises a question of jurisdictional error, as

explained in paragraphs 49 to 62 herein above.

(iii) The question of propriety, impropriety or otherwise

assessing the conduct of breach of privilege is within

the powers of the House, as explained in paragraph 63

and other observations herein above.

(iv) The jurisdiction on the admitted facts of this case

and the power of the Court to proceed to decide the

matter is available under Article 226 of the Constitution

of India on the principles laid down by the Apex Court

and also on the principles of pragmatism and

unreasonableness – vide paragraphs 64 to 76 and

other observations herein above.

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(v) The issue relating to breach of procedure including

the curing of a defect in the notice and allegations of

mala fides have been discussed in paragraphs 77 to 87

herein above but we should not be presumed to have

expressed any final opinion thereon.

106. Having considered all the submissions raised and in view

of what has been stated herein above, our conclusions are:

i. The issuance of the impugned notice of breach of

privilege dated 28.8.2017, based on the incident

dated 19.7.2017, suffers from a foundational

error of assuming the conduct of the petitioners

to be prohibited by the notification dated

23.5.2017, and we hold accordingly. The

petitioners cannot be proceeded against on the

strength of the impugned notices dated

28.8.2017 by treating their conduct on

19.7.2017 of displaying Gutkha sachets and

photographs as being violative of any prohibitory

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law particularly the Notification dated 23.5.2017.

ii. Our conclusion aforesaid is confined only to the

interpretation of the notification dated 23.5.2017

vis-a-vis the specific conduct of the petitioners

inside the House that was made the basis for the

issuance of notice of breach of privilege and is

not to be construed as an interpretation

regarding a prosecution or trial of any offence

before a competent forum arising out of the

notification dated 23.5.2017.

iii. We leave it open to the Committee of Privileges,

if it so chooses, to deliberate upon the issue any

further in case it still is of the opinion that any

breach has been committed of the privileges of

the House by the petitioners and in that event,

the petitioners will be at liberty to raise all such

objections that have been raised before us, or

even otherwise available in law.

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107. With the aforesaid observations, all the writ petitions are

partly allowed and stand disposed of. No costs. Consequently,

connected miscellaneous petitions are closed.

(A.P.S., CJ.) (S.K.R., J.) 25.08.2020

Index : Yes sasi

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To:

1.The Speaker, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009.

2.The Secretary, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009.

3.The Chairman, Privileges Committee, Tamilnadu Legislative Assembly, Fort St. George, Chennai 600 009.

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THE HON'BLE CHIEF JUSTICE AND SENTHILKUMAR RAMAMOORTHY, J.

(sasi)

W.P.Nos.24156, 24157, 24159 to 24162 to 24171 and 24173 to 24176 of 2017

25.08.2020

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