The Madras High Court on Wednesday allowed writ petitions moved by Tamil Nadu’s opposition leader MK Stalin and 18 other DMK MLAs challenging the privilege committee notice issued last September for displaying sachets of Gutkha (chewing tobacco) in the Tamil Nadu Legislative Assembly floor in 2017.
Justice Pushpa Sathyanarayana pronounced the verdict this morning after reserving orders in the matter last December.
A Division Bench of the Madras High Court had earlier quashed the Tamil Nadu Assembly Speaker’s 2017 breach of privilege notice over the issue, on finding that the notice suffered from foundational effects.
After this notice was quashed, another notice was issued last September, on grounds that the display of the packets was without the permission of the Speaker, that it caused disturbance to assembly proceedings, that it sets a bad precedent, and that it caused disorder and disrepute to the assembly. This September notice was the subject matter of the challenge before the Madras High Court.
While deciding on the matter, Justice Sathyanarayana noted that the discretionary powers exercised by administrative authorities must be reasonable. Such reasonableness should be transparent and consistent.
“Though the Court should not substitute the opinion of the administrative authority with that of their own, is bound to look for a failure in the exercise of the power of discretion; whether there is any illegality or procedural impropriety … the Court is concerned with the manner in which the decision has been passed … Such decision should not be arbitrary and inconsistent with Article 19 of the Constitution of India,” the Court opined.
Having found today that the challenged decision was taken, inter alia, without adhering to certain procedural Rules of the Tamil Nadu Legislative Assembly, the Court also had some parting words of advice for legislators generally.
Citing American philosopher, Prof. Avram Noam Chomsky, the Court observed, “the more privilege you have, the more opportunity you have. The more opportunity you have, the more responsibility you have.”
Justice Sathyanarayana further quoted a couplet from Thiruvalluvar’s Thirukural, which loosely translates to:
“Men of clear mind and powerful speech should use words that suit the audience.”
“Not only the proceedings of the Assembly have to commence with one couplet of Thirukural every day, the batch Legislators also should follow the Thirukural in their day-to-day life inside and outside the Assembly“, the Court added.
Senior advocates R Shanmugasundaram and NR Elango, and advocates Amit Anand Tiwari and B Harikrishnan appeared for the petitioners. Senior Advocate AL Somayaji and Advocate General Vijay Narayan appeared for the respondents.
Why the Writ Petitions were allowed
The High Court gave the following reasons to allow the writ petitions and set aside the privilege committee notice.
- There is no convincing reason as to why the earlier notices (set aside by a Division Bench last year) did not mention that the breach of privilege was on account of not obtaining prior permission from the Speaker.
- The Division Bench has already condoned the act of bringing and exhibiting the prohibited Gutkha on the Assembly Floor, given that its purpose was to register protest over the alleged failure to enforce its ban. The act of not obtaining permission from the Speaker precedes the second act of displaying the Gutkha packet. When the second act of displaying is already held to be an act not prohibited and when there is no codified or other requirement to obtain permission, the need for requiring such permission does not arise.
- Though the Division Bench had given liberty to deliberate upon the dispute further if the Committee of Privileges finds any privilege breach has been committed, this liberty cannot be taken advantage of by the Committee of Privileges to expand the scope of the reference to issue the challenged show cause notice.
- There was no material to show that the Speaker had exercised his powers to suo moturefer the issue to the privilege committee for examination, investigation, and report under Rule 226 of the Tamil Nadu Assembly Rules. The Speaker had refused to receive the notices served on him in the writ petitions and he was not before the Court to explain the facts, the Judge noted. Further, the Secretary and the Privileges Committee of the Tamil Nadu Legislative Assembly did not file any counter-affidavit explaining his stand either, the Judge said.
- As such, other rules for when privilege proceedings are initiated based on a complaint by an MLA ought to have been followed. In this regard, the Court referred to Rules 219, 223, and 224. Under the proviso to Rule 223, the member who is accused of breaching privilege has to be given an opportunity to explain the matter. The Court noted that no such opportunity was granted to the petitioners.
- In the absence of material to show that the breach of privilege proceedings was initiated suo motuby the Speaker, the other rules ought to have been complied with. However, in this case, the Court held that “non-compliance of these Rules vitiates the impugned notices and on the said ground also, the same are liable to be quashed.“
- Further, the Court also took particular note of the allegations made by the petitioners that the Chairman of the Privileges Committee, who is also the Deputy Chief Minister, V Jayaraman had a personal bias in this case as he had filed a defamation suit against one of petitioners. Rule 228 states that members who have a personal or direct interest in the matter should not sit on the Privileges Committee. If such a person is the Chairman, then the matter is to be referred to the Speaker. As such, the Court opined that the matter ought to have been referred to the Speaker. “The contention of the petitioners in this regard cannot be brushed aside lightly,” Justice Sathyanarayana added.