Back
2008 Supreme(Mad) 360
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
A.K. Bose
Versus
Tamil Nadu Legislative Assembly, Represented by its Secretary, Secretariat, Chennai & Another
W.P. No.1526 of 2008 & M.P. Nos.1 & 2 of 2008
Decided on : 01-02-2008
For the Petitioner:N. Jothi, S. Venkatesh and L.P. Shanmugasundaram, Advocates.
For the Respondents:G. Masilamani, Advocate General (as Amicus Curiae) assisted by V. Arun, Addl. Govt. Pleader.
Headnote:A. CONSTITUTION OF INDIA. ART.226 ARTICLES 14, 19, 21, 189, 194, 208, 212, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229 & 230 - Writ petition filed by the member, seeking to quash the resolution passed by the TN Legislative Assembly imposing multiple punishments on him, without notice and in violation of principles of natural justice and fundamental rights among other grounds. Writ the petition dismissed HELD: that though High court had power to review resolution of legislature, in the instant case the Assembly’s non-observance of certain procedure was only "irregular" and not "illegal" or "un-constitutional" to warrant interference by the court. Petitioner directed to approach the House and seek redressal for waiver or modification of the punishments.
B. IF THE COURT HAS POWER OF TO DECIDE SCOPE OF POWERS, PRIVILEGES AND IMMUNITIES OFTHE LEGISLATURE AND ITS MEMBERS-YES. - In the light of important settled propositions and principles laid down in decisions, HELD, there can be no serious controversy that Constitution reigns supreme and the rights, powers and privileges of the various limbs of state are subject to provisions contained in Constitution, basic and fundamental law which provides for the governance of the state. Legislature as a coordinate organ its acts are amenable to judicial scrutiny and the judicial review of manner of exercise of power of contempt or privileges are also amenable to judicial review - Court is not prevented from scrutinizing validity of action of Legislature trespassing on fundamental rights conferred on a citizen. (Para 64; other relevant paragraphs are 56, 57, 58, 59, 60, 61, 62, 63 & 93).
C. Constitution of India - Articles 212, 122, 208(1), 219, 221, 223, 225 - When High Court can interfere with the exercise of power by the legislature High Court can interfere only when the non-observance of procedure amounts to illegality and not irregularity - It appears that no notice whatsoever was served on the petitioner with regard to the allegation leveled against him nor any explanation called for from him. Of course, the speaker has the power to exercise his discretion to waive the procedure. The point to be answered in regard to the above issue is whether the non-observance of procedure contemplated constitutes an act of "irregularity" or "illegality ". On a perusal of the entire materials available before this court and upon analyzing the various decisions and after giving due credence to the contentions raised and the procedure adopted by the first respondent in passing the impugned resolution, it cannot be said that the resolution is a result of illegality in as much (as) it is only a procedural irregularity which is involved in the matter (Para 89). (also paras 67, 71, 74, 75, 77, 82, 83 & 93).
D. CONSTITUTION OF INDIA, Arts. 19(1)(a), 21 & Art. 194. FUNDAMENTAL RIGHTS Vs PRIVILEGE -1. Privilege of the Legislature is as supreme as that of Part III (Para 76) - 2. Liberal interpretation of Art. 21 of the Constitution to test the executive, legislature, quasi-judicial and even judicial acts may not be applied with same or similar vigour to the acts of Parliament and Legislature. (Para 79)
(See also para 80 to 83, wherein the scope of interference of the court is discussed with regard to the Legislature’s action, if impugned under Arts. 14, 19(1)(a) & 21).
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 110. 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 110. 2007 and 110. 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 Governors 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 110. 2007 passed by the first respondent, (i) he has been suspended from the Legislative Assembly with effect from 110. 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 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 110. 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
