IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01.02.2008 Coram: The Honourable Mr. Justice V. DHANAPALAN W.P. No.1526 of 2008 & M.P. Nos.1 & 2 of 2008 A.K. Bose, M.L.A. 225-B, Jeeva Nagar Second Street Jaihindpuram Madurai – 11 Petitioner Vs. 1 Tamil Nadu Legislative Assembly represented by its Secretary Secretariat Chennai – 600 009 2 The Speaker Tamil Nadu Legislative Assembly Secretariat Chennai – 600 009 Respondents Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari calling for the records pertaining to the resolution of the Tamil Nadu Legislative Assembly dated 19.10.2007 in awarding multiple punishments to the petitioner on the file of the first respondent so as to quash the same. For petitioner Mr. N. Jothi, Mr. S. Venkatesh and assisted by V.Karthikeyan & Mr.L.P.Shanmugasundaram For respondents Mr. G. Masilamani, Advocate General (as Amicus Curiae) assisted by Mr. V. Arun, Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner who is a Member of the Tamil Nadu Legislative Assembly (in short “the Legislative Assembly”) has filed this petition, calling in question the resolution dated 19.10.2007 passed by the Legislative Assembly and to quash the same. 2. The main issue between the parties is the consequence of an incident that took place on 18.10.2007 and 19.10.2007 leading to passing of the aforesaid resolution. 3. According to the petitioner who belongs to All India Anna Dravida Munnetra Kazhagam, he has been the Member of the Legislative Assembly representing 141, Tirupparankundram Assembly Constituency right from 13.05.2006, by defeating a candidate belonging to the Communist Party of India (M); by the punishment imposed against him by way of the impugned resolution, he has been prevented from discharging his duties as an elected representative of the Tirupparankundram Assembly Constituency and the impugned resolution has been passed by the first respondent even without serving any notice on him or without calling for any explanation or even without issuing any notice to him and as such, no formal order was ever served on him; however, the official residence allotted to him, like any other Member of the Legislative Assembly, was closed, locked and sealed, none of the privileges or payments was issued to him and he has waited so far, hoping that some kind of order would be issued on him, but, till the date of filing of this writ petition, no order has been issued. 4. It is the further case of the petitioner that the Legislative Assembly is scheduled to be convened with the Governor's Address on 23.01.2008 and in order to have an effective participation in the Assembly, he has filed this petition; from the newspapers, he came to know that a debate was made on his alleged role in throwing the hat of the Watch and Ward of the Legislative Assembly close to the table of the Speaker and this is denied by him. 5. He has also stated that by way of the impugned resolution dated 19.10.2007 passed by the first respondent, (i) he has been suspended from the Legislative Assembly with effect from 19.10.2007 onwards till the first ten days of the next Session likely to be convened on 23.01.2008 and (ii) he is not to have the benefit of any privilege or salary or indeed the very functioning as a Member of the Legislative Assembly and if the Session to be started on 23.01.2008 will not last for ten days, then the remaining unexpired days of suspension have to be counted during the Budget Session likely to commence during March 2008; the period of ten days has to be counted not as per the Gregorian calendar but the ten days of actual sittings of the House and as a consequence of the impugned Resolution, he is deprived of his pay, Compensatory Allowance, Telephone https://hcservices.ecourts.gov.in/hcservices/ Allowance, Constituency Allowance, Postal Allowance, Consolidated Allowance, Transit by Train Allowance and Medical Allowance and he cannot act as a representative of the Constituency which elected him as a Member of the Legislative Assembly. 6. It is his case that no written order was ever issued by the Legislative Assembly Secretariat based on the resolution passed by the Legislative Assembly and he is given to understand that it was done deliberately so as to prevent him from challenging the same in the court of law; instead, it is so planned to make use of Article 212 of the Constitution of India in the event of any challenge to the resolution of the Legislative Assembly which has got nothing to do with the issue on hand; from 19.10.2007 to March 2008, i.e. for a period of five months, he is deprived of discharging his duties as an elected Member of the Legislative Assembly; the impugned resolution shakes the very foundation of democracy and the elected representative system besides challenging the constitutional provisions, Representation of the People Act, 1951 and the Tamil Nadu Legislative Assembly Rules framed by virtue of Article 208(1) of the Constitution of India; in a simple majority governance of the country, if a party gets the chance of ruling, the State also could elect its elected member as the Speaker and in the same way, if the Committee of Privileges could consist of majority of that party, it looks that any kind of order could be passed, unmindful of the legal position in this regard; in a democracy, there will be a ruling party, the alliance parties and the opposition parties and a democratic form of governance does not mean majority members of the front only but also includes opposition. 7. According to him, the impugned resolution virtually disqualifies him for a period of five months which cannot be made even under the Constitution except by means of post-disqualification (after having got elected) by virtue of Article 194 of the Constitution of India and as an elected Member of the Legislative Assembly, he is authorised to function and discharge his duties to the electorate and the Constituency which returned him to the Assembly by virtue of the powers available under the Constitution and under the Representation of the People Act and not at the mercy of the chosen few who claimed to be the ruling front; the circumstances leading to the passing of the impugned resolution are reflected in the newspapers and the proceedings of the Legislative Assembly dated 18 and 19.10.2007 as enclosed in the typedset of papers are taken from the records available in the library with the help of his colleague in the House belonging to his party and the same has been challenged in this writ petition. 8. The main grounds of challenge in this writ petition are that: a. the proceedings for a breach of privilege can be initiated only in terms of Chapter XX (4) of the Tamil Nadu Legislative Assembly Rules (in short “the Rules”) which have been framed by exercise of powers under clause (1) of Article 208 of the Constitution of India; https://hcservices.ecourts.gov.in/hcservices/ b. under Rule 219, a Member may, with the consent of the Speaker, raise a question involving a breach of privilege on privilege relating to a Member, privilege relating to the House and privilege relating to a Committee constituted by the House and the moving of a motion in the House with respect to a privilege can be permitted to be raised in the House only if the privilege relates to the House and when it relates to a Member or a Committee, it cannot be raised in the House if Rule 225 is considered in a proper manner; c. the procedure contemplated in the issue of privilege can be considered under Rule 219 which provides that 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 and to raise such a breach of privilege, notice of motion to raise a question of privilege together with a brief statement shall be given by the member, at least one hour before the commencement of the sitting on the day as per Rule 220 and under Rule 221, the Speaker may give his consent to raise the issue and under Rule 222, a question of privilege can be raised if it shall be of a specific matter of recent occurrence and if the matter, in the opinion of the speaker, requires the intervention of the House; if the Speaker gives his consent under Rules 219 and 223, the Member concerned can make a short statement relevant thereto and under Rule 224, the Speaker can refuse to give his consent and under Rule 225, 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. d. also under Rule 226, the Speaker, on his own accord, may suo motu refer any question of privilege to the Committee of Privileges and when the Rules position remains so, something abnormal has happened with respect to the issue of the impugned resolution; though Privilege is not defined in the Rules, under Article 194 of the Constitution of India, subject to its provisions, certain powers and privileges are given to the Legislature and the Members of the House and in fact, under 194(3) of the Constitution, a statement is made that the term Privilege is yet to be defined; e. whatever may be the Privilege of the House or that of a Member, it cannot independently exceed or go beyond what is contemplated in the Constitution and the view expressed by a seven- member Bench of the Supreme Court as early as in the year 1965 is quite clear in stating that the rules enumerated for the procedure of the Legislature are subject to the fundamental rights enshrined in the Constitution and the privilege conferred on the Members of the Legislature is with respect to the performance of the functions of https://hcservices.ecourts.gov.in/hcservices/ the Member of a Legislative Assembly and there could be no separate privilege or complete immunity overriding the Constitution; of course, the Legislature may possess plenary powers but, even those powers are subject to the basic concept of the Constitution and any rule framed to guide the Legislature can draw power only from the Constitution and any supremacy which the Legislature enjoys is always subject to the Constitution, more especially with respect to Part-III vis-a-vis the Fundamental Rights enumerated in the Constitution and if the Legislature steps beyond the field assigned to it and if any proceedings connected with the Legislature trespasses on the fundamental rights of a citizen, then, the Court can always rectify the same by means of issuing a suitable writ in this context. f. Any excessive act of the Legislature cutting into the fundamental rights guaranteed under the Constitution is liable to be struck down by the Court as our country is governed by a written Constitution which is supreme and sovereign and the distinct and rigid separation of powers among the three pillars viz., the Executive, the Judiciary and the Legislature are entrusted with their respective roles in their place and whatever the power each may enjoy is always subject to the Fundamental Rights guaranteed under the Constitution; g. the issue has been deliberately raised with mala fide intentions to wreak political vengeance, knowing fully well that such an issue cannot be raised either within the Rules or by any of the powers conferred under the Constitution or in any other manner and as such, the impugned resolution of the first respondent is void ab initio apart from being nullified at the very inception itself; h. the petitioner has got freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution of India and by the present resolution, his role as a Member of the House is deprived; the impugned resolution is violative of Article 21 of the Constitution of India and the Rules or the privilege of any Member cannot infringe the provisions of the Constitution of Inida; i. before the award of any punishment, that too to the extent of deterring him from discharging his duties as an elected representative of his Constituency, he should have been given an opportunity to state his case and no such opportunity has been given to him and instead, he has been thrown out of the House and the ruling front itself, in a concerted manner, discussed among themselves and passed the impugned resolution which is arbitrary, unreasonable and violative of Articles 14, 19(1)(a) and 21 of the Constitution of India, apart from the non-existent power to the Assembly to deter an MLA from discharging his functions unless and until he is disqualified under Article 194 of the Constitution of India by reference from the Governor to the Election Commission of India; https://hcservices.ecourts.gov.in/hcservices/ j. in the impugned resolution dated 19.10.2007, various kinds and level of punishments contrary to law were made against the petitioner and he was not put on notice either by the House or by the Speaker or by the Legislative Assembly Secretariat before the issue was being decided and neither any explanation was ever sought from him nor was he heard and given show cause notice and no reply was sought from him and also no debate took place with his participation; k. he was not put on notice of the charges against him nor was he given any opportunity to show cause against the proposed action and also no explanation was ever sought from him either prior to the issue having been culminated for debate or while awarding punishment and as such, it is clear that a pre-determined decision about the guilt and the move to impose punishment has been taken by the respondents without giving him any opportunity and in gross violation of the principles of natural justice resulting in disqualification and punishment; l. the impugned resolution passed by the House is liable to be annulled as the one non-est in law and it is violative of Article 21 of the Constitution of India and the punishment has caused gross infringement of his fundamental rights apart from the agony and mental sufferings that have been caused to him due to the impugned resolution and hence, he is liable to be compensated with respect to the salary to which he is entitled to and which he proposes to disburse to the poor people and orphans; m. there is no question of adjudication involved in this context since he was not heard and no notice was issued to him and hence, this Court has to protect the fundamental rights guaranteed to him under the Constitution and under the Representation of the People Act; as an elected representative and as a citizen of this country, he is bound to function as a Member of the Legislative Assembly in the manner known to law and the gross infringement of his privileges and rights and duties to function as a Member of the Legislative Assembly have been curtailed due to political enmity without observing natural justice or without seeking any clarification or explanation from him. n. the genuineness of video clippings based on which punishment has been imposed on him, the concoctions or artificial insertion or articulation of such videography was never put to test nor was he permitted to see such video clippings as one claimed to have seen the same and everything went as hearsay, mere assertion and claims and the Members who spoke to disqualify him are not experts to find out as to how the incident could have happened or who has done the same and therefore, the personal life and liberty guaranteed under Article 21 of the Constitution of India was fully violated and the privileges and rights of an elected representative in terms of https://hcservices.ecourts.gov.in/hcservices/ the Constitution as well as the Representative of the People Act, 1951 have been thrown up to the winds. o. this Court has got every power to ensure that the constitutional guarantees are fully adhered to in every walk of life and in every exercise of power by any authority and the impugned resolution lacks competency to prevent an elected representative from pursuing his functions as such and the Legislature has to function within the limits prescribed by the material and relevant provisions of the Constitution; p. the adjudication of any dispute as to whether he has acted contrary to the rules or convention of the House, shall be done only in such a manner known to law and not in an arbitrary manner by a fiat of the ruling front and the privileges, powers and immunities claimed or action taken in vindication thereof cannot be the exclusive domain of a few or the sole or absolute discretion vested in the hands of a few and his fundamental right to function as the elected representative has been curtailed and suspended at least for a period of five months, which is nothing but non-est in law. q. the punishment imposed on him results in negation of his functions as a Member of the Legislative Assembly and the Rules prescribe the procedure for dealing with the question of privilege of the House or its Members and the residuary powers of the Speaker vide Rule 286 were not followed properly and as such, the impugned resolution is incorrect in law and is not sustainable; r. the proceedings of the House filed in the typed-set of papers leads no room for any doubt or any serious controversy wherein natural justice has been totally violated and no opportunity has been given to him to defend or state his case nor had he been put on notice about the nature of punishment and he had not all been shown the video clippings and photographs of him and hence, for want of proper adherence to natural justice, the impugned resolution may be annulled and quashed as non-est in law. 9. Mr. N. Jothi, learned counsel appearing for the petitioner has strenuously contended that the Articles guaranteeing fundamental rights under the Constitution, the Rules framed by the Legislative Assembly under Article 208(1) of the Constitution of India and the principles of natural justice were not followed by the first respondent while passing the impugned resolution. In addition to what is pleaded in the petitioner's affidavit, he has narrated certain events in connection with the facts and circumstances of the case and also the applicability of the above Rules. 10. While questioning the involvement of the petitioner in the incident which is claimed to have occurred on 18.10.2007, the learned counsel for the petitioner has contended that though several leaders had https://hcservices.ecourts.gov.in/hcservices/ spoken on the floor of the House on 18.10.2007 on the subject issue, none pointed out the petitioner's name and only on 19.10.2007, it is claimed that the videograph indicates the role played by the petitioner. In this regard, he has pointed out that the way in which the petitioner had thrown the hat or cap on the table of the Speaker is not indicated anywhere. It is also his vehement contention that it has not been explained by anybody as to whether the petitioner pulled the cap or hat from the head of the Watch and Ward and threw it on the table or it fell accidentally on the table of the Speaker or as to how it landed, in what manner, through what means and by what action. It is also his contention that the petitioner is disputing his role in the matter; his identity was not fixed on 18.10.2007 but was stated only on 19.10.2007; as to how the petitioner acted has not so far been revealed anywhere in the entire record and the facts are neither explained to the petitioner nor admitted. He has also contended that whenever the matter is not admitted and it is disputed and the petitioner claims innocence, the duty of the accusers is to give an opportunity to state the petitioner's response on the allegations and this has not been followed in this case. While referring to the judgments relied on by the learned Advocate General, he has remarked that they themselves indicate that one kind of natural justice or the other or at least a semblance of natural justice has been followed and whereas in the case of the petitioner, nothing has been followed. 11. The learned counsel for the petitioner has contended that the Court's jurisdiction and intervention has been accepted in several of the judgments and if the Parliament or the Assembly does any act of illegality and acts in violation of the guarantees given in the Constitution under Articles 14, 20 and 21, certainly judicial review is permissible as held by the Supreme Court in its judgment reported in (2007) 3 SCC 184 in the case of Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha & Others (Raja Ram Pal's case). He has further contended that the prohibition contained in Article 212 of the Constitution will be applicable only with respect to “irregularity” and not with respect to “illegality” and if an Assembly commits an illegality and violates fundamental rights, certainly, the proceedings can be analysed by means of judicial review under Article 226 of the Constitution by the High Courts and under Article 32 by the Supreme Court. It has also been contended by him that the manner in which the proceedings have been conducted can be examined by the Court if the proceedings of the Assembly make inroads of the fundamental rights and act contrary to them. While distinguishing the judgment in the case of K.Anbazhagan & others v. The Secretary, The Tamil Nadu Legislative Assembly, Madras & others reported in AIR 1988 Madras 275 (Anbazhagan case), he has contended that the disqualification resulting in violation of Schedule III oath by burning the Constitution in the said case is not an issue that could be compared with the facts of this case and further, the Constitution Bench judgment in Raja Ram Pal's case makes a clear distinction between such matters and matters pertaining to violation of observance of natural justice and infringement of fundamental rights guaranteed under the Constitution. https://hcservices.ecourts.gov.in/hcservices/ 12. An argument was advanced by the learned counsel for the petitioner in respect of judicial review by this Court in a matter of this nature. Referring to Raja Ram Pal's case, he has contended that the effect of the said judgment is clearly illustrated and guidelines have been given therein as to under what circumstances and in what manner, the Court can have judicial review by lifting the veil of Parliamentary privilege as against fundamental rights. In this context, he has argued that a Member of Legislative Assembly like the petitioner, like any other citizen, is entitled to have his fundamental rights being protected. Pointing out the provision of the Constitution under Article 122 and paragraph 386 of the decision of the Supreme Court in Raja Ram Pal's case, he has contended that any proceedings leading to illegality or unconstitutionality wherein the principle of natural justice is not being followed, judicial review is always possible and Article 212 applicable to a Legislative Assembly which is equivalent to Article 122 in case of Parliament, will not stand in the way inasmuch as the entire judgment is relied upon by the petitioner, especially, with reference to the various guidelines as enunciated in paragraph 431 from (a) to (u) are guidelines issued by the Supreme Court which permit judicial review and warrant judicial interference. 13. While arguing that there is a violation of Constitutional rights, the learned counsel for the petitioner has contended that the sweep of Article 21 of the Constitution has got developed vastly as it was understood from early 50s and 60s and as on date, it has changed to the extent