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.
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”.
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.
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.
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
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.
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.
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
Dated:February 12, 2016.
Chelameswar, J.
Citation:(2016)6 SCC82
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.Page 2
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:-
a) 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.
b) Issue a writ of order and strike down the suspension beyond the
second period.
c) Issue a writ of order and permit the petitioners to use the office
and their residential premises.
d) Issue a writ of order and restore all benefits other than that
which is connected with the house.
2Page 3
e) 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.
f) 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.
g) 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:-
(i) 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.
(ii)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.
(iii) 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, noncompliance
with the principles of natural
justice vitiating the assembly resolution dated
31.03.2015.
(iv) The State legislature and the Speaker do not
have the authority to seize the office and the
5Page 6
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 cases1
. 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
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.
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
9Page 10
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 context2
. These two articles deal
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.
1Page 11
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 Commons3
. 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
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.
1Page 12
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
1Page 13
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
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 subarticle
(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).
1Page 14
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
1Page 15
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
7455
, which view was reiterated by a Constitution Bench in
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
1Page 16
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others,
(2007) 3 SCC 1846
and in P.V. Narasimha Rao v. State
(CBI/SPE), (1998) 4 SCC 6267
.
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 subclauses
(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 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.
1Page 17
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 subclause
(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
1Page 18
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.
8
Paragraph 28.
9
Paragraph 20.
1Page 19
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
1Page 20
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
parliament10 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
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.
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.
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
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.
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 petitioners12
.
33. It is clear from the record that the video recording played a
crucial role in the deliberations of the Privileges Committee.13
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”
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
2Page 26
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.
14Even 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.
2Page 28
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
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.
2Page 29
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.
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