Thread by @barandbench

#MadrasHighCourt takes up for final hearing petitions challenging privilege committee proceedings issued against MK Stalin and other DMK MLAs for bringing gutka packets to Legislative Assembly in 2017. In Sept, the Court had stayed the proceedings.

@arivalayam @mkstalin

The matter is before Justice Pushpa Sathyanarayana.

Senior Advocate Shanmugasundaram is making arguments for @mkstalin

Shanmugasundaram recounts that privilege committee proceedings were initiated against 19 persons citing:

- display of prohibited gutkha without permission of Speaker
- the disturbance caused to assembly proceedings,
- setting a bad precedent, and
- causing disorder, disrepute

Shanmugasundaram refers to Government Order on Gutkha in Tamil Nadu, which bans transport, storage etc. of the substance.

Shanmugasundaram: Consumption, possession, display (of gutkha) is not banned.

Court: Unless you possess, you cannot store.

Shanmugasundaram: Storage is storing in a large place, which has been discussed in a Vijaykumar Agarwala judgment.

Shanmugasundaram: It is the MLA's privilege to raise this (that banned Gutkha was being sold). The Court (Division Bench) has found that our conduct was bona fide conduct.

The substance was being liberally sold outside, and, therefore, packets were shown and photos were shown.

Shanmugasundaram recounts that the High Court had also earlier transferred to the CBI the probe into the illegal sale of gutkha, in which case the Health Minister was also accused of involvement. The CBI probe is pending.

Shanmugasundaram: Despite all this, the gutkha packets were openly sold.

Shanmugasundaram: The gutka ban was an eyewash ban, it was not seriously implemented. Therefore, they (DMK MLAs) agitated the issue.

Now they say, had you obtained permission, the speaker would have given.

Shanmugasundaram, referring to violation cited in show cause notice that assembly proceedings were disturbed:

The Division Bench said the conduct of the petitioners was to register protest.

Read more on Division Bench ruling:

barandbench.com/news/litigatio…

Shanmugasundaram (referring to charge that disorder was caused to assembly proceedings) observes Assembly rules state that the Speaker can adjourn the proceedings where proceedings turn disorderly.

Shanmugasundaram continues to read privilege rules applicable to MLAs.

Shanmugasundaram reads on how the Speaker can deal with breach of privilege proceedings:

1. He can refer to the privilge committee
2. He can place it before the House

Only on the reference by the Speaker, the Committee will take cognisance. Otherwise, cognisance is bad.

Shanmugasundaram: In this case, only one reference was made on 19.7.2017.

Even that reference was challenged.

Shanmugasundaram says that there was an ulterior motive in the earlier privilege committee notice as well, recounting that 18 AIADMK MLAs withdrew support from the Chief Minister around the same time.

Shanmugasundaram recounts that the notice was issued on Aug 28, 2017, after turmoil on the assembly floor on Aug 22.

Shanmugasundaram: When 18 MLAs ditched them, and they wanted to disqualify an equal number ... Therefore, they dug out this issue.

Shanmugasundaram refers to earlier Court ruling partly allowing challenge to 2017 privilege notice

Shanmugasundaram: Now they (respondents) are picking & choosing certain areas not available to them. All these arguments were placed (before earlier Bench) and they were negatived

Shanmugasundaram, referring to earlier Division Bench ruling:

The conduct of the petitioners is appreciated here. The conduct of the petitioners was held to be proper. They had the privilege of making such an expression.

Shanmugasundaram continues reading the earlier Division Bench ruling, refers to liberty given to Privilege Committee "to deliberate upon the issue any further in case it still is of the opinion that any breach has been committed..."

Shanmugasundaram: This they take as a liberty given to them. On their own, they sit and decide and issue the present notice citing 4 violations.

Court: You mean to say that what has been raised now has already been given a quietus?

Shanmugasundaram: Yes, and if there was any fresh issue, the cognisance cannot be taken suo motu by the Committee. The suo motu cognisance can only be taken by the Speaker.

Court: So you mean to say, (if there were fresh issues) once again Speaker should have taken cognisance, whatever be the legal violation, and issued a reference?

Shanmugasundaram: Yes ... Privilege Committee is not empowered to take up such issues unless the Speaker refers.

Shanmugasundaram: The present notice doesn't have the foundation to stand. As held by the Division Bench (wrt to earlier notice), the present notice also suffers from "foundational defects."

Shanmugasundaram: Privilege Committee has acted without jurisdiction by sending this notice because there was no separate, fresh reference.

Shanmugasundaram concludes.

Senior Advocate NR Elango (for the petitioner-MLAs) commences submissions

Elango: What is a privilege of the Assembly or Parliament is not codified.

He refers to Article 194 of the Constitution of India.

Elango: A member (of the legislative assembly), while in the House, has absolute freedom of speech and expression.

Elango: Whatever the "privilege", it has to be subject to law made by that legislature, i.e. the rules of Tamil Nadu Legislative Assembly. There cannot be any other law defined beyond those rules.

Elango adds: Shanmugasundaram has argued elaborately on how the Privilege Committee cannot expand the scope of the reference of the Speaker.

Elango: Even to raise a question of breach of privilege, consent of the Speaker is required.

Notice to three authorities is required for deliberation by the House. If the allegation of the breach is against a member, a copy of the notice is to be given to the member.

Elango: The role of the privilege committee is to examine, investigate and report, whatever the reference is, and not to travel beyond that.

Privilege Committee, on its own, cannot act.

If they do, it is violative of Article 194 (3), which states that applicable rules concerning breach of privilege are as defined by the Legislature by law, Elango submits.

Elango: The issue of gutka was being discussed in the assembly for the third consecutive day (in 2017, when the packets were displayed). So he (Stalin) was speaking with the permission of the Speaker.

Elango: If any conduct was considered disorderly, Speaker ought to have proceeded under Rules 117-122 (the TN Legislative Assembly Rules), and nothing else.

Elango on reasons for the privilege committee notice of 2017: One is to keep the magic majority.

(Reference made to 18 AIADMK MLAs who had withdrawn support in 2017, and the pending disqualification petitions against 11 AIADMK MLAs)

Elango: Whenever we mention in the Supreme Court (about the case of disqualification of 11 AIADMK MLAs)... They have an inclination that the 11 MLAs would be disqualified. They want to see some of the DMK MLAs suspended.

Elango also refers to Adv Amit Tiwari's arguments on this count which were recorded in the earlier Division Bench judgment.

Elango: Viewed from any angle, the notice is to be quashed.

Elango concludes submissions.

Shanmugasundaram tells Court that in fact Gutkha has been shown during court proceedings.

He refers to a media report on this count, to inform that gutka packets were displayed by the Chief Justice during a Jharkhand High Court hearing in a PIL:

dailypioneer.com/2020/state-edi…

Adv Amit Tiwari (for petitioner-side) says he will argue on why the show cause notice issued by the Privilege Committee notice suffers from jurisdictional error.

Tiwari: There are five grounds (of the challenge):

1. Division Bench has already concluded that the conduct of the petitioners was in the exercise of their freedom of speech and expression under Articles 19 (1) and 194 of the Constitution and was in the larger public interest

Tiwari: 2. Privilege Committee cannot travel beyond the reference made by the Speaker in 2017, which was a specific reference relating to a specific issue of breach of privilege.

Tiwari: Even if it is assumed that they (Committee) are relying on the 2017 reference, they cannot travel beyond the (Speaker's) reference.

Tiwari: Privileges are not codified laws. If the Speaker feels our conduct is to be examined, it refers "that particular conduct" to the Committee. The Committee then examines that conduct and reports back.

Tiwari: If they (Committee) wanted to do it, they should have requested the Speaker to issue a fresh reference

Tiwari: 3. The petitioners' conduct referred to is covered under "disorderly conduct" under Rules 117-122 (of the TN Legislative Assembly Rules) and not conduct that is "breach of privilege".

Tiwari continues on the grounds why the notice suffers from jurisdictional errors:

4. There is a clear presence of bias.
5. There is malafide at the time of issuing notice on 7.9.2020

Tiwari submits that the Speaker had assumed the items (gutka sachets) to be prohibited "for the purposes of bringing and displaying."

Tiwari: What was playing in the mind of the Speaker as a "likely breach of privilege" - the controlling factor - was the item (gutka) being a "banned substance."

Tiwari: The Division Bench said that this suffers from foundational error. Once the notice has been quashed, even the reference is deemed to have been quashed.

Tiwari: Nothing survives (after the Division Bench ruling) in that reference of July 19. The Committee cannot rely on that reference to issue a fresh show-cause notice.

Speaker's reference was on a specific matter. Today, the Committee cannot say I will examine other matters also: Tiwari

Tiwari: Today committee is looking at aspects that are not referred to also.

Can the conduct of one Member poking another with his crutch be examined by the Committee if crutches themselves are not prohibited in the Assembly? he adds

Tiwari: No. There has to be a specific reference.

Tiwari: The privileges committee chairman is taking so much of personal interest in the matter! He is signing all the affidavits, he filed the appeal against the stay.

He goes forum shopping. This is completely unethical and clearly shows bias and malafides.

Tiwari: The Speaker should have taken the matter, he is staying away from it.

It smacks of unnecessary interest being shown by the Committee Chairman. As it suffers from bias, it goes to the very root.

Tiwari requests where the Court can continue hearing the matter after lunch.

Court asks Senior Advocate AL Somayaji (for Privilege Committee) how long he would take to argue. Somayaji responds, at least 2 hours.

Advocate General says he can make submissions after Somayaji.

Court breaks for lunch.

Court resumes hearing. Advocate Amit Tiwari continues making submissions.

Tiwari reads a judgment which states that if an allegation of malafide is made against a person and if it is not rebutted by that person, it shall be treated to be proved.

Tiwari reads out portions of the Court's earlier Division Bench ruling.

Tiwari: A categorical finding was recorded that proceeding for breach of privilege was unwarranted in the facts of the present case. So there was nothing left for the privilege committee to decide!

Tiwari: Clearly, the Division Bench had already decided on that particular conduct (of bringing gutka on Assembly floor). It was treated to be an act in the exercise of freedom of speech in the larger interest.

Tiwari: Can the very same conduct be worded differently and treated as a breach of privilege? That is nothing but malafide.

Tiwari concludes.

Adv B Harikrishnan makes submissions (for the petitioner-side).

Harikrishnan: In the impugned notice, 7.9.2020, there is malice to be attributed.

He refers to Court's earlier observation that Deputy Speaker has filed a suit against MK Stalin seeking compensation and damages in respect of certain allegations made against him.

Harikrishnan: Malice is writ large in the impugned notice dated 7.9.2020

Harikrishnan concludes after making his arguments on malice and bias. In so far as other aspects are concerned, he submits that he is adopting the arguments made by Shanmugasundaram, Elango and Tiwari.

Senior Advocate AL Somayaji (for the Privileges Committee) commences submissions.

Somayaji: After the 7.9.2020 notice was given, the petitioners were given time to reply.

They did not give the reply, and they sought further time. they were granted time, and in the meanwhile, they filed this writ petition.

Somayaji refers to the earlier Division Bench judgment. Reads out excerpts.

Somayaji: The Division Bench has been very careful, in my opinion, to not go into this question of privilege and to leave it open.

One, Mr Mathivanan raised the issue before... 19/7/2017 was the last day of the session for demands and grants. On 29/6, the CM gave a reply that the Commissioner is taking steps to curb the sale of gutka: Somayaji

Somayaji adds that the CM further informed that Vigilance authorities have been asked to hold a preliminary enquiry.

It was also informed by CM that one Mr Vincent had moved the High Court seeking that only Commissioner of Police should conduct the enquiry, which was dismissed.

Somayaji: Therefore, there was no necessity for him, and 18 others, to bring the sachets of gutka and display them and also show photographs on a day reserved for demands or grants.

Somayaji adds that the Privilege Committee has the power to cure defects in its notice (if any) and that this has been done.

Somayaji: Will it not be open to them to raise these very same issues before the Privilege Committee (instead of the High Court)?

Somayaji referring the the "magic number" argument: Privilege Committee notice cannot be conclusively and clinchingly said to be actuated by malice merely because the 19/7/2017 incident took place in between

(The display of gutka packets took place on July 19, 2017)

Somayaji: (Contentions of) "malice and bias" are based on the Deputy Speaker initiating a suit.

The writ petition against 11 members disqualification (in relation to which suit was filed) was not filed by any of the petitioners. It was filed by one, Sakkarapani.

Somayaji: They (Division Bench) have not set aside the entire privilege committee proceedings.

Somayaji, referring to certain provisions, says there is no absolute fundamental right for the members.

Somayaji: (If it were an absolute right) Then there will be chaos, if everybody starts raising ...

Somayaji: There was every justification for the Privilege Committee to consider this issue and to issue a privilege committee notice.

Somayaji also refers to how the rules concerning the Privileges, immunities etc. of legislators remain uncodified.

In a lighter vein, he adds: They want to keep it flexible for their own benefit, the privileged class.

Court: I won't say anything.

Somayaji: Just as the Courts would like to preserve their prerogatives, the Legislatures would like to preserve their powers.

Courts can interfere to a limited extent after a decision is made, not at the stage of show cause notice, he adds.

Somayaji, rebutting the argument that the second show-cause notice is identical to the first: The deletion of (the word) "prohibition" from the show cause notice makes a world of difference.

Somayaji rebuts arguments that a fresh reference has to be made by Speaker before the second notice

Somayaji: It is up to the Privilege Committee to prima facie satisfy themselves, that is very clear. (In the Division Bench ruling) writ has been issued quashing only the notice.

Somayaji reiterates: All the issues raised here can be raised before the Privilege Committee

Somayaji adds that there is no need to re-agitate these issues against before the Court.

Somayaji refers to the petitioner's submission that gutka has also been displayed in Court

Somayaji: It is not a breach of privilege as such, not a display in the manner in which it was displayed in the present case. It is not a precedent as such.

Somayaji: It is not freedom of speech that has been prohibited... It is a display of the empty gutka sachets and photos without the permission of the speaker

Somayaji: Freedom of speech is very much there, they could have come without the sachets, which they already did on earlier occasions. It was already permitted.

Somayaji: On the last day of the assembly to raise it, when the assembly was convened for the demand for grant — that itself is not a proper conduct.

Somayaji rebuts the argument that if the notice is set aside, the entire proceedings would go.

Somayaji: I would submit the order is very clear in page 106. The Division Bench was very careful in quashing the notice alone and not the entire proceedings.

Somayaji reads out that despite the wide prayers of the petitioners, the Division Bench had "partly allowed" the pleas.

Somayaji argues that the issues raised before the Court can be raised before the Privilege Committee. Even if the Privilege Committee decides, that is not the end of it. The report of the Privilege Committee goes before the House.

Somayaji: At this stage for the Court to go into these questions, it is premature.

Somayaji says that there are some judgments he would like to circulate to support his arguments.

He requests that the Court continue hearing tomorrow since it is already 4.30 pm, adding that he can circulate the judgments in the meantime.

Madras High Court will continue hearing the matter tomorrow afternoon, at 2.15 pm.

Court: There are a lot of other matters also in the queue. At least the morning I can devote to them.