ALAGAAPURAM R. MOHANRAJ AND ORS. Vs. TAMIL NADU LEGISLATIVE ASSEMBLY REP. BY ITS SECRETARY AND ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 455 of 2015, Judgment Date: Feb 12, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 455 OF 2015
Alagaapuram R. Mohanraj & Others … Petitioners
Versus
Tamil Nadu Legislative Assembly
Rep. by its Secretary & Another … Respondents
J U D G M E N T
Chelameswar, J.
1. This is a petition filed by six petitioners invoking Article 32 of
the Constitution of India. They are members of the Tamil Nadu Legislative
Assembly representing different constituencies. By a resolution of the
assembly dated 19.02.2015, nineteen members of the assembly, including the
six petitioners, have been suspended from the House for the remainder of
the period of the then current Session. The resolution suspended the
nineteen members for allegedly obstructing the proceedings of the
legislative assembly. Subsequently, a Privileges Committee was constituted
to inquire into whether the conduct of the members during the incident
dated 19.02.2015 amounted to a breach of privilege. The Privileges
Committee held that the actions of the six petitioners were a breach of
privilege, and recommended the action to be taken against the six
petitioners. Such a recommendation was passed by a resolution of the
assembly dated 31.03.2015. Through this resolution, the petitioners were
suspended for a period of ten days of the next session of the House.
Further, it was resolved that the petitioners should not be paid their
salaries or given other benefits which are due to them as members of the
Legislative Assembly for the period of suspension.
2. Aggrieved by the same, the petitioners filed the instant writ
petition praying as follows:-
Issue a writ of order declaring the impugned resolution dated 31.03.2015
passed in the Tamil Nadu Legislative Assembly, as unconstitutional,
illegal, null and void.
Issue a writ of order and strike down the suspension beyond the second
period.
Issue a writ of order and permit the petitioners to use the office and
their residential premises.
Issue a writ of order and restore all benefits other than that which is
connected with the house.
Issue a writ of certiorari calling for the records pertaining to the
resolution of the Tamil Nadu Legislative Assembly dated 19.02.2015 and
31.03.2015 in awarding multiple punishments to the petitioners on the file
of the first respondent so as to quash the same.
Issue a writ of order declaring the proceedings of breach of privilege
against the petitioner herein, right from commencement of the proceedings
by the 2nd respondent herein under Rule 226 of the Tamil Nadu Legislative
Assembly framed under Article 208 of Constitution of India to the
subsequent proceedings carried out by the privilege committee under rule
229 of the rules including the resolution of the house under rule 229(d)
dated 19.02.2015 and 31.03.2015 respectively are illegal, failure to comply
with the principles of natural justice, perverse, irrational and violative
of the petitioners statutory right under the Tamil Nadu payment of salaries
Act, 1951.
Pass such other/further order as this Hon’ble Court may deem fit and proper
in the facts and circumstances of the present case.”
3. All the six petitioners are members of a political party known as
DMDK.
4. The basic facts leading to the present writ petition are as follows:-
On 19.2.2015, the petitioners allegedly resorted to unruly conduct while
the session was in progress. When the Speaker directed the Marshalls to
evict the first petitioner from the House because of the alleged unruly
conduct, the remaining petitioners ran to the Speaker’s podium allegedly to
attack the Speaker. However, they were prevented by the Marshalls.
Thereafter, the Speaker passed an Order suspending 19 members of the
Legislative Assembly belonging to the DMDK party from the Assembly for the
remainder of the Session with immediate effect.
5. Such a decision was taken by the Speaker allegedly in exercise of the
power under Rule 121(2) of the Tamil Nadu Assembly Rules.
6. The Speaker also referred to the Privileges Committee of this
Assembly the incident dated 19.02.15 to identify those members who
attempted to assault the Speaker and the Watch and Ward Staff. The
Privileges Committee, after an inquiry, recorded a conclusion that the
conduct of the six petitioners was in breach of the privileges of the House
and, therefore, recommended to the House that these six petitioners be
removed from the Assembly for 10 days from the commencement of the next
session of the Legislative Assembly and also that during the said period,
the petitioners be not paid the salary and be given other benefits to which
the members of the House are entitled. Hence, the writ petition.
7. Various submissions are made on behalf of the petitioners which can
be summarized as follows:-
That the decision to suspend the petitioners not only for the current
session in which the alleged breach of privilege occurred but also for a
certain period of the next session is beyond the authority of the House and
the Speaker under Article 194.
The incidents which took place outside the premises of the Legislative
Assembly could not form the basis for taking action on the ground that such
incidents resulted in the breach of the privileges of the House.
The non-supply of certain material (video recording) to the petitioners
which was relied upon to record the conclusion that the petitioners are
guilty amounted to denial of a reasonable opportunity and, therefore, non-
compliance with the principles of natural justice vitiating the assembly
resolution dated 31.03.2015.
The State legislature and the Speaker do not have the authority to seize
the office and the residential premises in the legislative hostel allotted
to the petitioners by virtue of their membership in the Legislative
Assembly.
8. At the very threshold, the petitioners were called upon to satisfy
this Court regarding the maintainability of the instant writ petition as
for the maintenance of a writ petition under Article 32, the petitioners
must demonstrate that there is an infraction of one of the fundamental
rights guaranteed to the petitioners under Part III of the Constitution.
9. The response of the petitioners is twofold.
(1) That the petitioners’ fundamental rights guaranteed under Articles
19(1)(a), 19(1)(g), 14 and Article 21 of the Constitution have been
violated by the impugned resolution;
(2) This Court in the case of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha &
Others, (2007) 3 SCC 184, examined the constitutionality of the proceedings
of the Speaker of the Lok Sabha in exercise of its jurisdiction under
Article 32 of the Constitution of India. Therefore, the present petition
also is maintainable.
10. We shall first deal with the second submission of the petitioners.
The question whether a petition under Article 32 is maintainable to
determine the legality of the action by legislative bodies against its
members on the ground that they indulged in conduct which is in breach of
the privileges of the House was never raised either by the respondents nor
did the Court go into that question in Raja Ram Pal case. On the other
hand, it appears from the said judgment that this Court was not only
dealing with the writ petitions filed under Article 32 but certain
transferred cases though exact details of those cases and from where they
were transferred are not available from the judgment. In our opinion, Raja
Ram Pal case is not an authority for the proposition that a writ petition
such as the one on hand is maintainable under Article 32. The question
must be examined independently.
11. Article 32 of the Constitution guarantees the right to move this
Court by appropriate proceedings for the enforcement of rights conferred by
Part III of the Constitution. Article 32 insofar as it is relevant for
the present purpose reads as follows:-
“32. (1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.”
12. The jurisdiction of this Court under Article 32 in contradistinction
to the jurisdiction of the High Courts under Article 226 is limited. While
the High Courts in exercise of the jurisdiction under Article 226 can issue
writs for the enforcement of any right conferred by Part III and for “any
other purpose”, the jurisdiction under Article 32 is only confined to the
enforcement of the rights conferred under Part III of the Constitution.
This distinction is well recognised by this Court in number of cases[1].
Therefore, in order to maintain the present petition, the question whether
there is any breach of fundamental rights of the petitioners is required to
be examined.
13. It is argued on behalf of the petitioners that the impugned action is
violative of the petitioners’ fundamental right of speech and expression
guaranteed under Article 19(1)(a) and their fundamental right to carry on
an occupation guaranteed under Article 19(1)(g). It is also the case of
the petitioners that the alleged non-compliance with the requirement of the
principles of natural justice in the process of enquiry into the alleged
unruly conduct of the petitioners and award of the punishment is violative
of Article 14. It is also argued that the impugned action insofar as it
deprives (although for a limited period) the petitioners of their salary
and other facilities attached to their membership of the house is a
violation of their fundamental right under Article 21 of the Constitution.
14. We proceed to examine the claim of the petitioners that by the
impugned action their fundamental rights under Articles 19(1)(a) and (g)
are violated.
15. It is well settled now that the fundamental rights guaranteed under
Article 19 are available only to the citizens of this country whereas the
other fundamental rights under Articles 14 and 21 are available to every
person who is subjected to the laws of this country. The six freedoms
enumerated under Article 19 of the Constitution inhere in all the citizens,
by virtue of their citizenship without the need for anything further.
16. Two questions are required to be examined in the context; (i) when a
member of a State Legislature participates in the proceedings of the House,
is that member exercising a fundamental right of speech and expression
under Article 19(1)(a)? (ii) Whether any action, either of that legislative
body or any other authority, acting pursuant to any law, disabling either
temporarily or otherwise a member from participating in the proceedings of
the legislative body, amounts to deprivation of the fundamental right to
freedom of speech under Article 19(1)(a) of such a legislator?
17. To answer the above question, a closer scrutiny of some of the
provisions of the Constitution is required. Articles 105 and 194 are
relevant in the context[2]. These two articles deal with the Parliament
and the State Legislature respectively. They declare inter alia that
“there shall be freedom of speech” in the said legislative bodies.
Articles 105(2) and 194(2) further declare that no member of either the
Parliament or the State Legislature “shall be liable to any proceedings in
any court in respect of any thing said” in such legislative bodies or any
committee thereof.
18. It is clear from the scheme of these two articles that the
constitutional declaration of freedom of speech in the legislative bodies
creates a constitutional right in favour of the members of such legislative
bodies. Such a freedom had its origin in the privileges of the House of
Commons[3]. The dimensions and contours of such right are greatly different
from the dimensions and contours of the fundamental right of speech and
expression guaranteed under Article 19(1)(a).
(i) While the fundamental right of speech guaranteed under Article
19(1)(a) inheres in every citizen, the freedom of speech contemplated under
Articles 105 and 194 is not available to every citizen except the members
of the legislative bodies, though, by virtue of the operation of other
provisions of the Constitution, citizenship of this country is a condition
precedent for acquiring the membership of the legislative bodies; the
constitutional right of free speech in the legislative bodies is not
inherent to the citizenship but is to be acquired by getting elected to
those bodies.
(ii) The freedom of speech contemplated in Articles 105 and 194 is
available only during the tenure of the membership of those bodies. No
citizen can be deprived of its citizenship and therefore the fundamental
right under Article 19(1)(a) is inalienable.
(iii) The constitutional right of free speech under Articles 105 and 194 is
limited to the premises of the legislative bodies. Whereas, the freedom of
speech under Article 19(1)(a) has no such geographical limitations.
(iv) While the freedom of speech guaranteed under Article 19(1)(a) is
subject to reasonable restriction that could be imposed by law which is
compliant with the limitations specified under Articles 19(1)(2), the right
of free speech available to a legislator, either under Articles 105 or 194,
is not subject to any such limitation that could be imposed by law.
However, such a freedom, as it appears from the opening clauses of these
two articles, is subject to “other provisions of the Constitution and to
the rules and standing orders regulating the procedure of the legislative
bodies”[4]. One express limitation on such freedom is found under Articles
121 and 211 which prohibit, in express terms, any discussion in the
legislative bodies with respect to the conduct of any Judge of Supreme
Court or of the High Court in the discharge of his duties. Further,
Articles 118 and 208 authorise the legislative bodies to make rules for
regulating their procedure and the conduct of their business;
Therefore, the scope and amplitude of the freedom of speech inhering in a
citizen and available to a member of the legislative body are totally
different. No citizen has a right to enter the legislative body and
exercise his freedom of speech unless he first gets elected to such a
legislative body in accordance with law. No legislator would continue to
enjoy the freedom of speech contemplated under Articles 105 and 194 after
the cessation of the membership of the legislative body.
19. No doubt, when a legislator is prevented from participating in the
proceedings of the House during the currency of the membership by virtue of
some proceedings taken against such a legislator, there would be a
curtailment of the legislator’s constitutional right of free speech in the
House of which such legislator is a member. But such curtailment is
sanctioned by Constitution in view of the fact that such a right is made
subject to other provisions of the Constitution, the rules and standing
orders regulating the procedure of the legislative bodies.
20. Therefore, we are of the opinion that though there is a curtailment
of the petitioners’ right of free speech in the Legislative Assembly of
Tamil Nadu to which they are entitled under Article 194 by virtue of the
impugned order, the said impugned order does not, in the context, violate
the fundamental rights of the petitioners guaranteed under Article
19(1)(a).
21. Our view is fully supported by an opinion of this Court In re under
Article 143 of Constitution of India, AIR 1965 SC 745[5], which view was
reiterated by a Constitution Bench in Raja Ram Pal v. Hon’ble Speaker, Lok
Sabha & Others, (2007) 3 SCC 184[6] and in P.V. Narasimha Rao v. State
(CBI/SPE), (1998) 4 SCC 626[7].
22. According to the petitioners, the term ‘occupation’ under Article
19(1)(g) is of the widest amplitude, and includes the office of a member of
legislative assembly.
For this proposition, the counsel places reliance on Paragraph 239 of the
T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
“239. ….. Article 19 confers on all citizens rights specified in sub-
clauses (a) to (g). The fundamental rights enshrined in sub-clause (g) of
clause (1) of Article 19 of the Constitution are to practice any
profession, or to carry on any occupation, trade or business. We are
concerned here with the right to establish educational institutions to
impart education at different levels, primary, secondary, higher,
technical, professional etc. Education is essentially a charitable object
and imparting education is, in my view, a kind of service to the community,
therefore, it cannot be brought under “trade or business” nor can it fall
under “profession”. Nevertheless, having regard to the width of the
meaning of the term “occupation” elucidated in the judgment of the Hon’ble
the Chief Justice, the service which a citizen desires to render by
establishing educational institutions can be read in “occupation”. This
right, like other rights enumerated in sub-clause (g), is controlled by
clause (6) of Article 19. The mandate of clause (6) is that nothing in
sub-clause (g) shall affect the operation of any existing law, insofar as
it imposes or prevents the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of
right conferred by the said sub-clause and, in particular, nothing in the
said sub-clause shall affect the operation of any existing law insofar as
it relates to or prevents the State from making any law relating to: (i)
the professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business; or (ii) the
carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the
exclusion, complete or partial, of citizens or otherwise. Therefore, it
may be concluded that the right of a citizen to run educational
institutions can be read into “occupation” falling in sub-clause (g) of
clause (1) of Article 19 which would be subject to the discipline of clause
(6) thereof.”
In our opinion, it does not, in any way, support the claim of the
petitioner that the impugned action is violative of their fundamental right
under Article 19(1)(g). To decide the correctness of the submission, we
need to examine both the etymological and contextual meaning of the
expression occupation occurring in Article 19(1)(g).
23. This Court in Sodan Singh v. New Delhi Municipal Committee, 1989 4 SCC
105, had an occasion to examine the question and held;
“The guarantee under Article 19(1)(g) extends to practice any profession,
or to carry on any occupation, trade or business. ‘Profession’ means an
occupation carried on by a person by virtue of his personal and specialized
qualifications, training or skill. The word ‘occupation’ has a wide
meaning such as any regular work, profession, job, principal activity,
employment, business or a calling in which an individual is engaged.
‘Trade’ in its wider sense includes any bargain or sale, any occupation or
business carried on for subsistence or profit, it is an act of buying and
selling of goods and services. It may include any business carried on
with a view to profit whether manual or mercantile. ‘Business’ is a very
wide term and would include anything which occupies the time, attention and
labour of a man for the purpose of profit. It may include in its form
trade, profession, industrial and commercial operations, purchase and sale
of goods, and would include anything which is an occupation as
distinguished from pleasure. The object of using four analogous and
overlapping words in Article 19(1)(g) is to make the guaranteed right as
comprehensive as possible to include all the avenues and modes through
which a man may earn his livelihood. In a nutshell the guarantee takes
into its fold any activity carried on by a citizen of India to earn his
living. The activity must of course be legitimate and not anti-social
like gambling, trafficking in women and the like.”[8]
Thus, it can be seen that the essence of the right is to pursue an activity
which enables a citizen to earn livelihood.
24. In T.M.A Pai Foundation (supra) , this court held that
“Article 19(1)(g) employs four expressions viz. profession, occupation,
trade and business. … Article 19(1)(g) uses the four expressions so as to
cover all activities of a citizen in respect of which income or profit is
generated, and which can consequently be regulated under Article
19(1)(6)”.[9]
The amplitude of the term ‘occupation’ is limited by the economic
imperative of livelihood generation. Therefore, all the activities
contemplated under Article 19(1)(g) are essentially activities which enable
a citizen to generate economic benefits. The primary purpose and thrust of
Article 19(1)(g) is to generate economic benefit and to protect the fruits
of one’s labour.
25. The right to contest an election to the legislative bodies established
by the Constitution is held not to be a fundamental right. Therefore,
logically it would be difficult to accept the submission that the right to
participate in the proceedings of the legislative bodies can be a
fundamental right falling under Article 19(1)(g). No citizen is entitled
as of right either to become or continue for the whole lifetime as member
of a legislative assembly. Acquisition of the membership depends on the
decision of the electorate and is conferred by a process established by
law. Even after election, the tenure is limited. Fundamental rights do
not come into existence upon the volition of others. They inhere in the
citizens and are capable of being exercised independently without the need
for any action or approval of others subject only to the restrictions
imposed by law. Any member of a legislative assembly holds office until
such membership comes to an end by some process established by law.
Constitutional offices commencing from the office of the President of India
are meant for and established for securing the goals adumbrated in the
preamble to the Constitution. Each of these offices is a component in
larger machinery established to make it possible for the people of this
country to realise the goals indicated in the preamble of the Constitution.
Any monetary benefit incidental to the holding of such offices is only to
compensate for the time and energy expended by the holder of the office in
the service of the nation. It is for this very reason that a member of a
legislative assembly cannot be treated as holding office for the purpose of
eking out a livelihood.
26. The economic underpinnings of an ‘occupation’ under Article 19(1)(g)
and the transient and incidental nature of economic benefits flowing from
the office of a legislator must inevitably lead to the conclusion that a
member of the legislative assembly cannot be treated as pursuing an
‘occupation’ under Article 19(1)(g). We, therefore, reject the contention
that the issue at hand involves the rights of the petitioners under Article
19(1)(g).
27. Coming to the question of violation of fundamental right under
Article 21 of the petitioners, the case of the petitioners is that by
virtue of the impugned action the petitioners have been deprived of their
salaries and other benefits incidental to the membership of the legislative
assembly during the period of suspension and, therefore, it is violative of
their fundamental right under Article 21.
28. No clear authority is cited before us, nor any tenable submission is
made to demonstrate that there is violation of Article 21 except a bare
assertion. On the other hand, in Raja Ram Pal case, it was argued that
such depravation resulting from the expulsion of a member from the house
would result in violation of the ‘constitutional rights’ of the members of
the parliament[10] and therefore the expulsion would be bad.
29. This Court repelled the submission and held:
“… in the present case, where there is a lawful expulsion, the Members
cannot claim that the provisions relating to salaries and duration of the
House create such rights for the Members that would have supremacy over the
power of expulsion of the House.”
In other words, this Court held that salary and other benefits to which the
members of a legislative body are entitled to during their tenure are
purely incidental to the membership and they don’t even create an
independent and indefeasible constitutional right. Therefore, the question
that the deprivation of such benefits amounted to deprivation of
fundamental right under Article 21 does not arise at all.
30. We now deal with the submissions of the petitioners that the impugned
proceedings are violative of the fundamental right of the petitioners under
Article 14. According to the petitioners, the said proceedings have been
taken in violation of the principles of natural justice. It is settled law
that the scope of judicial review in matters relating to action taken
against members by the legislative bodies is limited. However, it is
likewise well settled that the non-compliance with the principles of
natural justice is one of the limited grounds on which judicial review
could be undertaken against the internal proceedings of the legislative
bodies in appropriate cases.[11]
31. We now examine the petitioners’ claim that there has been a violation
of the principles of natural justice. It is rather difficult to cull out
from the body of the clumsily drafted writ petition (the counter is no
better though very long) the precise factual grievance of the petitioners.
The substance we could cull out is that a copy of the videograph relied
upon by the Privileges Committee was not provided to them. From a reading
of paragraphs 3.12 to 3.18 of the writ petition, it appears that there was
considerable correspondence between the Privileges Committee and the
petitioners. The Privileges Committee called for an explanation from the
six petitioners herein as to why action could not be taken against them,
though it is not clear from the record as to the basis on which the six
petitioners were chosen out of the 19 MLAs who were suspended initially.
Each of the petitioners gave their explanation by separate letters. After
consideration of the explanation, the Privileges Committee concluded that
there was indeed breach of privilege, and recommended action against the
six petitioners. This recommended action formed the basis of the assembly
resolution dated 31.03.2015.
32. It is argued before us that the Privileges Committee relied upon
certain video recordings for arriving at the conclusion that the
petitioners are guilty of conduct which is in breach of the privileges of
the house but a copy of the video recording was not provided to the
petitioners[12].
33. It is clear from the record that the video recording played a crucial
role in the deliberations of the Privileges Committee.[13] Upon viewing the
recording of the incident dated 19.02.2015 in which nineteen members
belonging to the DMDK party were allegedly involved, the Privileges
Committee reached a conclusion that the conduct of the six petitioners is
in breach of the privilege of the house. The proceedings of the Privileges
Committee make repeated references to video recording.
34. FIR No. Cr. No. 09/2015 dated 20.2.2015 filed by Mr. Vijayan, a special
sub-inspector deployed in the Tamil Nadu legislative assembly, which is one
of the pieces of evidence used against the petitioners, mentions the names
of only two of the six petitioners (Petitioner No. 4 and Petitioner No.5).
In his FIR, Mr. Vijayan makes an omnibus statement that all members
belonging to the DMDK party rushed to the Speaker’s chair in an unruly
fashion and were ordered to be sent out of the house for that reason. He
then proceeds to specifically state the two accused (Petitioner No. 4 and
Petitioner No.5) attacked him.
35. In this light, the question is: How did the Privileges Committee
identify six members as having breached the privilege of the house? From
the minutes of the Privileges Committee meeting, it is clear that the only
material relied upon by the Committee to identify all the six petitioners
and recommend action against them for breach of privilege was the video
recording.
36. The petitioners’ case, though not elegantly pleaded, is that they have
not been granted the opportunity to watch the video recording or comment on
the content and authenticity of the video. In the questions of law raised
in the writ petition, the petitioners raised the question of “Whether
denial of the right to comment on the video material would amount to breach
of natural justice?” In the grounds taken by the petitioners, they pray
for the writ to be allowed “because on the question of authenticity of
videography and as to how far it can be pressed into service, further, the
respondents never gave a copy of the alleged videography to the
petitioner”.
37. It is the case of the respondents, that the disciplinary proceedings
are not based solely on the video clippings. At para 76 of the counter
affidavit, it is stated that the violent incidents on 19.2.2015 had been
witnessed by all Members in the House including those in the Privileges
Committee and thus the videograph is not the sole basis for award of
punishment.[14]
38. The minutes of the Privileges Committee meeting clearly show that the
video-recording played an important role in arriving at the conclusions
that the Privileges Committee did. The video recording was specifically
shown to the members of the Privileges Committee “since some of them would
have forgot only the video recordings were shown again”[15]. Giving some
allowance for bad translation - the said sentence only indicates that the
Committee was not willing to rely solely on the memory of the members of
the Committee. At the risk of repetition, we reiterate that the video
recording served as the common factual platform for all the members of the
Privileges Committee, from where the members discussed the actions of the
six petitioners, and recommended action against them.
39. This Court in Raja Ram Pal case, while dealing with the question of the
rules of natural justice in the context of proceedings in the legislative
bodies, held as follows:
“As already noted the scope of judicial review in these matters is
restricted and limited. Regarding non-grant of reasonable opportunity, we
reiterate what was recently held in Jagjit Singh v. State of Haryana that
the principles of natural justice are not immutable but are flexible; they
cannot be cast in a rigid mould and put in a straitjacket and the
compliance therewith has to be considered in the facts and circumstances of
each case.”[16]
40. In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, this Court
discussed the scope of the principles of natural justice in the context of
the proceedings in the legislature (action under Xth Schedule of the
Constitution) and held thus:
“Undoubtedly, the proceedings before the Speaker which is also a tribunal
albeit of a different nature have to be conducted in a fair manner and by
complying with the principles of natural justice. However, the principles
of natural justice cannot be placed in a straitjacket. These are flexible
rules. Their applicability is determined on the facts of each case…”[17]
41. The principles of natural justice require that the petitioners ought to
have been granted an opportunity to see the video recording. Perhaps they
might have had an opportunity to explain why the video recording does not
contain any evidence/material for recommending action against all or some
of them or to explain that the video recording should have been interpreted
differently.
42. The Privileges Committee should have necessarily offered this
opportunity, in order to make the process adopted by it compliant with the
requirements of Article 14. Petitioner No. 1 in his reply letter to the
notice issued by the Privileges Committee seeks permission to give further
explanation when the video recording is provided to him. The Petitioner No.
3 in his reply letter states that he believes his version of his conduct
will be proven by the video recording. The other petitioners do not mention
the video recording in their reply letters. However, it is not the
petitioners’ burden to request for a copy of the video recording. It is the
legal obligation of the Privileges Committee to ensure that a copy of the
video recording is supplied to the petitioners in order to satisfy the
requirements of the principles of natural justice The failure to supply a
copy of the video recording or affording an opportunity to the petitioners
to view the video recording relied upon by the committee in our view
clearly resulted in the violation of the principles of natural justice i.e.
a denial of a reasonable opportunity to meet the case. We, therefore, have
no option but to set aside the impugned resolution dated 31.03.2015 passed
in the Tamil Nadu Legislative Assembly. The same is accordingly set aside.
43. The consequence of setting aside the impugned resolution of the Tamil
Nadu Legislative Assembly dated 31.3.2015 is that the salary and other
benefits incidental to the membership of the assembly stand restored to the
six petitioners herein.
44. In view of the conclusion recorded above, we see no need to deal with
the other submissions advanced by the petitioners.
45. The writ petition is allowed as indicated above.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Abhay Manohar Sapre)
New Delhi;
February 12, 2016.
-----------------------
[1] See, Gujarat State Financial Corporation v. Lotus Hotel, AIR 1983 SC
848: (1983) 3 SCC 379; Air India Statutory Corpn. v. United Labour Union,
AIR 1997 SC 645, 680 : (1997) 9 SCC 377.
[2] Relevant portions of the Articles:
Article 105. (1) Subject to the provisions of this Constitution and
to the rules and standing orders regulating the procedure of Parliament,
there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any
court in respect of any thing said or any vote given by him in Parliament
or any committee thereof, and no person shall be so liable in respect of
the publication by or under the authority of either House of Parliament of
any report, paper, votes or proceedings.
Article 194. (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] PV Narasimha Rao v. State (CBI/SPE) (1998) 4 SCC 626
110. xxxx xxxxx xxxx xxxx
The privileges of the House of Commons, as distinct from those of the
House of Lords, were defined as
“the sum of the fundamental rights of the House and of its individual
Members as against the prerogatives of the Crown, the authority of the
ordinary courts of law and the special rights of the House of Lords”.
The privileges of the House of Commons included the freedom of
speech, which had been claimed in 1554. This comprised the right of the
House to provide for the due composition of its own body, the right to
regulate its own proceedings, the right to exclude strangers, the right to
prohibit publication of its debates and the right to enforce observation of
its privileges by fine, imprisonment and expulsion.
[4] PV Narasimha Rao case, (1998) 4 SCC 626
27. Clause (1) secures freedom of speech in Parliament to its
Members. The said freedom is “subject to the provisions of this
Constitution and to the rules and standing orders regulating the procedure
of Parliament”. The words “subject to the provisions of this Constitution”
have been construed to mean subject to the provisions of the Constitution
which regulate the procedure of Parliament, viz., Articles 118 and 121.
(See: M.S.M. Sharma v. Sri Krishna Sinha SCR at p. 856 and Special
Reference No. 1 of 1964 also known as the Legislative Privileges case SCR
at p. 441.) The freedom of speech that is available to Members of
Parliament under Article 105(1) is wider in amplitude than the right to
freedom of speech and expression guaranteed under Article 19(1)(a) since
the freedom of speech under Article 105(1) is not subject to the
limitations contained in Article 19(2)
109. By reason of sub-article (1) of Article 105, Members of
Parliament enjoy freedom of speech subject only to the provisions of the
Constitution and the rules and standing orders regulating the procedure of
Parliament. That express provision is made for freedom of speech in
Parliament in sub-article (1) of Article 105 suggests that this freedom is
independent of the freedom of speech conferred by Article 19 and
unrestricted by the exceptions contained therein. This is recognition of
the fact that Members need to be free of all constraints in the matter of
what they say in Parliament if they are effectively to represent their
constituencies in its deliberations. Sub-article (2) of Article 105 puts
negatively what sub-article (1) states affirmatively. Both sub-articles
must be read together to determine their content. By reason of the first
part of sub-article (2) no Member is answerable in a court of law or any
similar tribunal for what he has said in Parliament. This again is
recognition of the fact that a Member needs the freedom to say what he
thinks is right in Parliament undeterred by the fear of being proceeded
against.
110. xxxxx xxxxx xxxxx xxxxxx
The provisions of Article 194(2), therefore, indicated that the
freedom of speech referred to in sub-article (1) thereof was different from
the freedom of speech and expression guaranteed under Article 19(1)(a) and
could not be cut down in any way by any law contemplated by Article 19(2).
[5] 31. It will be noticed that the first three material clauses of
Article 194 deal with three different topics. Clause (1) makes it clear
that the freedom of speech in the legislature of every State which it
prescribes, is subject to the provisions of the Constitution, and to the
rules and standing orders, regulating the procedure of the legislature.
While interpreting this clause, it is necessary to emphasise that the
provisions of the Constitution to which freedom of speech has been
conferred on the legislators, are not the general provisions of the
Constitution but only such of them as relate to the regulation of the
procedure of the legislature. The rules and standing orders may regulate
the procedure of the legislature and some of the provisions of the
Constitution may also purport to regulate it; these are, for instance,
Articles 208 and 211. The adjectival clause “regulating the procedure of
the legislature” governs both the preceding clauses relating to “the
provisions of the Constitution” and “the rules and standing orders”.
Therefore, clause (1) confers on the legislators specifically the right of
freedom of speech subject to the limitation prescribed by its first part.
It would thus appear that by making this clause subject only to the
specified provisions of the Constitution, the Constitution-makers wanted to
make it clear that they thought it necessary to confer on the legislators
freedom of speech separately and, in a sense, independently of Article
19(1)(a). If all that the legislators were entitled to claim was the
freedom of speech and expression enshrined in Article 19(1)(a), it would
have been unnecessary to confer the same right specifically in the manner
adopted by Article 194(1); and so, it would be legitimate to conclude that
Article 19(1)(a) is not one of the provisions of the Constitution which
controls the first part of clause (1) of Article 194.
32. Having conferred freedom of speech on the legislators, clause (2)
emphasizes the fact that the said freedom is intended to be absolute and
unfettered. Similar freedom is guaranteed to the legislators in respect of
the votes they may give in the legislature or any committee thereof. In
other words, even if a legislator exercises his right of freedom of speech
in violation, say, of Article 211, he would not be liable for any action in
any court. Similarly, if the legislator by his speech or vote, is alleged
to have violated any of the fundamental rights guaranteed by Part III of
the Constitution in the Legislative Assembly, he would not be answerable
for the said contravention in any court. If the impugned speech amounts to
libel or becomes actionable or indictable under any other provision of the
law, immunity has been conferred on him from any action in any court by
this clause. He may be answerable to the House for such a speech and the
Speaker may take appropriate action against him in respect of it; but that
is another matter. It is plain that the Constitution-makers attached so
much importance to the necessity of absolute freedom in debates within the
legislative chambers that they thought it necessary to confer complete
immunity on the legislators from any action in any court in respect of
their speeches in the legislative chambers in the wide terms prescribed by
clause (2). Thus, clause (1) confers freedom of speech on the legislators
within the legislative chamber and clause (2) makes it plain that the
freedom is literally absolute and unfettered.
[6] Powers, privileges and immunities—Generally
130. Taking note of Pandit Sharma (I) it was reiterated in U.P.
Assembly case (Special Reference No. 1 of 1964) that clause (1) of Article
194 no doubt makes a substantive provision of the said clause subject to
the provisions of the Constitution; but in the context, those provisions
cannot take in Article 19(1)(a), because the latter article does not
purport to regulate the procedure of the legislature and it is only such
provisions of the Constitution which regulate the procedure of the
legislature which are included in the first part of Article 194(1).
[7] See F/N 4 supra.
[8] Paragraph 28.
[9] Paragraph 20.
[10] Para 151. It was further argued by the petitioners, that provisions
in the Constitution relating to salary and the term for which they serve in
the House are constitutional rights of the Members and the power of
expulsion, by terminating their membership violates these constitutional
rights.
[11] Jagjit Singh v. State of Haryana, (2006) 11 SCC 1. “We may hasten
to add that howsoever limited may be the field of judicial review, the
principles of natural justice have to be complied with and in their
absence, the orders would stand vitiated.” -- Para 14.
See also paragraphs 671 and 672 of Raja Ram Pal v. Hon’ble Speaker,
Lok Sabha and Others, (2007) 3 SCC 184.
[12] Apart from the vague reference in Para 3.12 of the facts, the
petitioners take it as a ground (Ground No. 38) in the instant writ. Para
3.12 reads “The petitioner No.1 sent his reply to the letter seeking
explanation by the Privilege Committee. The letter was received by the
Petitioner only on 23.2.2014, but the explanation was sought for on or
before 27.2.2015. Further, the petitioner sought permission to give
further explanation immediately when the video clipping of the incident. A
true copy of the letter sent by Petitioner No.1 to Secretary of the
Legislative Assembly dated 27.2.2015 is annexed herewith and marked as
Annexure-P7.” Ground No. 38 reads “The respondents never gave a copy of the
alleged videography”. Apart from this one sentence, the petitioners do not
elaborate any further.
[13] From a perusal of the minutes of the privileges committee meeting
dated 20.02.2015, it is evident that the viewing of a video recording of
the incident dated 19.2.2015 formed the basis for application of mind by
the members of the privileges committee
Tellingly, the minutes read
[Chairman of the Privileges Committee]-
“After viewing the video clippings each member can record their own
opinion”
[Chairman of the Privileges Committee]-
“I request the members of the committee that before recording your
opinion I request to view the video recordings taken on 19.02.2015 in the
House. I request you to record your opinions after viewing the video
recordings”
“This meeting is held to find out the members who are all have
involved in the undue acts after viewing the video records and to decide as
to what action can be taken against them”
…
“Let [us] first view the video footage and then the committee shall
come to a conclusion”
[Mr. J.C.D. Prabhakar, member, privileges committee]-
“Here you showed the video recording to the members clearly …”
This member then goes on to discuss the events as depicted in the
video recording and individuates the six petitioners as indulging in
actions which amount to a breach of privilege.
[Mrs. S. Vijayadharani, member, privileges committee]-
“The expressing of the anger by V.C. Chandira Kumar is very clearly
seen from the video clipping”.
This member then goes on to record her opinion that one of the
petitioners is not involved in the scuffle.
[Mr. A. Lasar, member, privileges committee]-
“We have seen the video footage with respect to that incident. Hence
we are speaking here in the way that in this regard that hereafter these
types of incidents should not happen”
[Mr. K.S.N. Venugopalu, member, privileges committee]-
“ … I saw from my seat that the incident happened yesterday on
19.02.2015 was very much brutal. We have again see in in the video. … I
give the opinion that the 6 members who involved in this terrible act
namely Mr. Alagapuram R. Mohan Rah, Mr. V.C. Chandra Kumar, Mr. C. H.
Sekhar, Mr. K. Dinakaran, Mr. S.R. Parthiban, Mr. L. Venkatesan should be
suspended for one year in such a way that they should not come to the
house.”.
[Mr. Challenger Dorai @ Doraisamy]-
“We have also seen the incident in the video footage also …”. `
[Hon’ble leader of the house]-
“All the members present here all are included in the Legislative
Assembly. Hence you would have seen the incidents happened with your eyes
Not only was that, the video recordings also shown. Since some of them
would have forgot only the video recordings were shown again”
[14] Even at Para 70 of the counter affidavit, the respondents assert that
as the incident on 19.2.2015 happened inside the assembly chamber, the
speaker and other present members were eye-witnesses to the incident, and
that the nature of the incident was known to all members in the house,
including the members of the privileges committee.
[15] See F/.N 12.
[16] Extracted portion is a part of Paragraph 446 in the judgment.
[17] The extracted portion is a part of paragraph 44 in the judgment.
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