Privilege notices to DMK MLAs have foundational error, says Madras High Court

Court leaves it open to Privileges Committee of the Tamil Nadu Assembly to reconsider the matter.

The Madras High Court on Tuesday held that the show-cause notices issued by the Privileges Committee of the Tamil Nadu Assembly to DMK president M.K. Stalin and 20 other MLAs in August 2017 suffered from a “foundational error” of assuming that their conduct in displaying gutkha sachets in the Assembly was prohibited under the law.

Chief Justice Amreshwar Pratap Sahi and Justice Senthilkumar Ramamoorthy held that the legislators could not be proceeded against on the strength of the show-cause notices, which relied solely on a May 2017 government notification through which only the manufacture, transportation, storage, distribution and sale of gutkha were banned in the State.

Also read | Speaker had predetermined breach of privilege issue: Stalin

The judges made it clear that their conclusion was confined to the interpretation of the May 2017 notification vis-à-vis the conduct of the legislators in the House, which was made the basis for the issuance of the notices. However, the court left it open to the Privileges Committee to deliberate on the matter and proceed further if it was still of the opinion that a breach of privilege had been committed.

Authoring the judgment, the Chief Justice wrote, “What we intend to clarify is that [the] carrying of gutkha sachets simpliciter may or may not be a breach of privilege, which is still open to examination by the Committee of Privileges. But to hold that the passage of the gutkha sachets inside the House amounted to transportation or storage is certainly not made out on facts.”

He went on to state, “There is no law, [and] nor was any shown to us, that a mere display of a gutkha sachet, which was [done] with the clear intention of drawing the attention of the entire Assembly to alleged apathy of the government in not tackling the menace of the free sale of gutkha in Tamil Nadu, was conduct prohibited under the May 23, 2017 notification.”

The Bench also pointed out that the intention of the legislators in bringing the gutkha sachets to the House was not to promote the consumption of gutkha and other chewing tobacco products that had been banned in the State. Rather, they were raising their voice in support of the government notification and for its rigorous implementation.

The judges agreed with senior counsel R. Shunmugusundaram, N.R. Elango and Amit Anand Tewari, representing the MLAs, that the intention of the government notification was to ban the trade of gutkha and not to ban freedom of speech. “Since the notification entails penal consequences, it should be construed strictly to achieve its purpose of saving human lives,” they said.

Chief Justice Sahi also held that the courts were entitled to interfere in such issues, even at the stage of issuance of show-cause notices, if a pure question of law had to be decided. “To curb the power of the court is to suffocate the freedom and independence which the Constitution confers on superior courts in the tripartite federal arrangement representative of the doctrine of separation of powers,” he said.

“Judicial review is not supposed to be viewed as policing, but rather [as] conserving and preserving the rule of law so as to ensure that all authorities act within the confines of their power in an accountable way. Wherever the law is wrongly construed or applied, the power and authority of courts to interpret and pronounce on the same step in,” he added.

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