The Madras High Court on Friday reserved for judgment the petitions filed challenging the Privilege Committee issued this year to opposition leader MK Stalin and other DMK MLAs for displaying sachets of Gutkha (chewing tobacco) in the Tamil Nadu Legislative Assembly floor in 2017.

Justice Pushpa Sathyanarayanan reserved orders after hearing arguments made over two days. The Court had stayed the Privilege Committee notice in September.

The Controversy

Earlier this year, a Division Bench of the Madras High Court had quashed the Tamil Nadu Assembly Speaker’s 2017 breach of privilege notice over the issue, on finding that the notice suffered from foundational effects.

The Division Bench had ruled that the display of the banned Gutkha on the Assembly Floor by the MLAs for the purpose of highlighting its widespread availability despite the ban is not prohibited by law, contrary to the stance taken in the earlier privilege committee proceedings.

After this notice was quashed, another notice was issued last September, on the following grounds:

• the display of the packets was without the permission of the Speaker,
• it caused disturbance to assembly proceedings,
• it sets a bad precedent, and
• it caused disorder and disrepute to the assembly.

This notice is the subject matter of the challenge before Justice Sathyanarayana.

Senior advocates R Shanmugasundaram and NR Elango, and advocates Amit Anand Tiwari and B Harikrishnan appeared for the petitioners. Senior Advocate AL Somayaji and Advocate General Vijay Narayan appeared for the respondents.

What the Petitioners contend

MLAs had the privilege to display Gutka sachets in order to raise issue with its “eye-wash ban”

The Gutkha Ban was an eyewash ban, it was not seriously implemented. Therefore the DMK MLAs agitated the issue. It is their privilege to raise the issue that Gutkha, despite its ban, was being openly sold. The Division Bench has found that their conduct was bona fide conduct. The substance was being liberally sold outside, and, therefore, packets were shown and photos were shown.

The display of Gutkha packets was a part of the exercise of their freedom of speech and expression under Article 19 (1)(a) and Article 194 of the Constitution (powers, privileges, immunities etc. of legislators) and in the larger public interest

The petitioners also recounted that the issue of gutkha was being discussed in the assembly for the third consecutive day in 2017, when the packets were displayed. Therefore, Stalin was speaking with the permission of the Speaker, it was submitted.

The counsel added that if any conduct was considered disorderly, the Speaker ought to have proceeded under Rules 117-122 of the Tamil Nadu Legislative Assembly Ruleswhich deals with “disorderly conduct” not “breach of privilege” proceedings.

There is ulterior motive, bias underlying the Privilege Committee proceedings

There was an ulterior motive in the earlier 2017 privilege committee notice as 18 AIADMK MLAs had withdrawn support from the Chief Minister around the same time. The notice was issued after turmoil amid turmoil on the Assembly Floor. Also pending before the Court were pleas concerning the disqualification of 11 AIADMK MLAs. One reason motivating the initiation of breach of privilege proceedings was “to keep the magic majority.”

It was also asserted that Chairmanship of the Deputy Speaker of the Legislative Assembly, V Jayaraman in the Privilege Committee and his conduct in this matter smacks of malafides and bias. It was pointed out that Jayaraman had earlier filed a suit against Stalin. The petitioners argued that Jayaraman has been taking an undue interest in this matter, which requires interference from the Court.

“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”, argued Advocate Tiwari.

Privilege Committee has gone beyond the Speaker’s 2017 reference

The petitioners contend that after the Madras High Court Division Bench quashed the first notice, there ought to have been a fresh reference by the Assembly Speaker before a new notice can be issued. The cognisance cannot be taken suo motu by the Committee.

In 2017, there was a a specific reference relating to a specific issue of breach of privilege. The Privilege Committee cannot expand the scope of the reference of the Speaker beyond this. The role of the privilege committee is to examine, investigate and report, whatever the reference is, and not to travel beyond that.

The Speaker had assumed the gutkha sachet were prohibited for the purposes of bringing and displaying. The controlling factor was gutkha being a “banned substance.”

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

Advocate Tiwari submitted,

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

What the Respondents contend

Foundational defects removed in privilege committee notice

The reason why the Division Bench had earlier set aside the notice was that the Speaker had referred to gutkha has “prohibited” for the purpose of possession. This was the foundational defect.

However, this foundational defect has now been cured and the privilege committee notice has been issued for the display of the substance and photographs without the Speaker’s permission, thereby disrupting the Assembly proceedings.

The petitioners cannot prove that there is any foundational error in the notice issued this year as it is completely different from the earlier notice.

Speaker’s 2017 reference was never set aside

Given that the Division Bench had given the Privilege Committee the liberty to re-examine the issue, The Speaker’s reference to the Committee in 2017 was never set aside. Only the notice was set aside, the reference was saved. The Division Bench did not set aside the entire privilege committe proceedings. This is why they recorded that the earlier petitions were “partly allowed.”

Further, there cannot be any argument on the validity of the reference at this stage.

Up to Privilege Committee to examine if conduct constitutes a breach of Privilege

The Division Bench had been very careful to not go into the question of privilege and to leave it open for the Committee to examine. The petitioners have the opportunity to raise their objections before the Privilege Committee. There is no need to re-agitate these issues before hte Court. The intervention of the Court at this stage would be premature

The law relating to the privileges of a legislator remain uncodified for obvious reasons as it depends on each person at that particular point of time. In one case, the rolling of eyes in a certain objectionable manner was also held to be a breach of privilege.

Whether it amounts to a breach of privilege or not can still be examined by the committee. You cannot say it is not a breach of privilege because it is not prohibited “transport” or “storage” or gutkha. It is exclusively in the domain of the House to see if conduct inside the Legislative Assembly constitutes a breach of privilege or not.

Just as the Courts would like to preserve their prerogatives, the Legislatures would like to preserve their powers. The courts can interfere to a limited extent after a decision is made, not at the stage of show cause notice.

Legislator’s rights are not absolute

There was no necessity for Stalin and the 18 other MLAs to bring sachets of gutkha and display them or show photographs on that particular day. The issue was already raised earlier and was being discussion. There is no absolute fundamental right for the members.

“It is not freedom of speech that has been prohibited… It is a display of the empty gutkha sachets and photos without the permission of the Speaker. 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. On the last day of the assembly to raise it… that itself is not a proper conduct“, Somayaji argued.