@JUDGMENTTAG-ORDER
E. Padmanabhan, J.@mdashMr. O.S. Manian, a Member of Rajya Sabha and Member of A.I.A.D.M.K. party and who claims to be the friend of
Thiru R. Thamaraikkani, a sitting Member of the Tamil Nadu Legislative Assembly, has moved both the Habeas Corpus Petitions.
2. In HCP. No. 416 of 1999 the said Petitioner had prayed for the issue of a writ of habeas corpus calling for the records connected with the
proceedings of the second Respondent, the Speaker of the Tamil Nadu Legislative Assembly, by which the detenu R. Thamaraikkani was arrested
and confined to Central Prison, Chennai as revealed by the arrest warrant and committal to prison, quash the proceedings and set the said detenu
R. Thamaraikkani at liberty.
3. In HCP. No. 433 of 1999, the very same Petitioner prays for the issue of a writ of Habeas Corpus calling for the records of the third
Respondent, namely the Tamil Nadu Legislative Assembly, represented by its Secretary, connected with the resolution passed on 23.3.1999
punishing the detenu to suffer imprisonment for a period of 15 days in the Central Prison, Madras, quash the same and set the said detenu R.
Thamaraikkani at liberty.
4. Before setting out the factual matrix leading to the institution of the two Habeas Corpus Petition, it would be proper to extract the very
proceedings which are impugned in these two Habeas Corpus Petitions. In HCP. No. 416 of 1999 a warrant of arrest and warrant of
commitment, so referred to specifically are the impugned proceedings or the impugned action which are being challenged and they read thus:
Impugned document No. 1
P.T.R. PALANIVEL RAJAN
B. Sc., B.L., SPEAKER TAMIL NADU LEGISLATIVE ASSEMBLY
Telephone
Off. 562708
SECRETARIAT
CHENNAI-9
WARRANT OF ARREST
WHEREAS an offence of criminal assault has taken place in the Tamil Nadu Legislative Assembly between 12.31 p.m., and 12.35 p.m., today
(223.1999) and the offender being Thiru R. Thamaraikkani, Member, Tamil Nadu legislative Assembly and the victim being Hon Thiru Veerapandi
S. Arumugham, Minister for Agriculture.
AND WHEREAS the House has already resolved that the said Thiru R. Thamaraikkani be suspended from the service of the House for the
remainder period of the current session of the Assembly.
NOW THEREFORE, I, P.T.R. PALANIVEL RAJAN, SPEAKER, Tamil Nadu Legislative Assembly direct that the said Thiru R.
Thamaraikkani, wherever he may be, be arrested and produced before the Superintendent, Central Jail, Chennai for lodging him in Central Jail for
one week.
HEREIN fail not
Given under my hand and seal this 22nd day of March, 1999 at Chennai.
To
The Commissioner of Police,
Egmore, Chennai 600008
----------------------------------------------
Impugned document No. 2
----------------------------------------------
P.T.R. PALANIVEL RAJAN
B.Sc., B.L.,
SPEAKER
TAMIL NADU
LEGISLATIVE
ASSEMBLY
Telephone
Off.562708.
SECRETARIAT
CHENNAI-9
WARRANT OF COMMITMENT
WHEREAS I, P.T.R. PALANIVEL RAJAN, Speaker, Tamil Nadu Legislative Assembly after having considered all the circumstances involved
in the criminal assault committed by Thiru R. Thamaraikkani against Hon. Thiru Veerapandi S. Arumugham, Minister for Agriculture on the floor of
the House, ordered for his arrest and production before the Superintendent, Central Prison, Chennai for custody.
AND I, in pursuance of the order above, require by this warrant of custody, the Superintendent, Central Prison, Chennai to take into custody the
said Thiru R. Thamraikkani and keep him in prison for a period of one week from the date of production of the said delinquent in the Central
Prison, Chennai 600 003.
HEREIN fail not.
Given under my hand and seal this 22nd day of March, 1999 at Chennai.
To
The Superintendent Central Prison, Chennai 600003.
5. In HCP. No. 433 of 1999 what is challenged is the unanimous Resolution passed by the Tamil Nadu Legislative Assembly on 23rd March,
1999 awarding a simple imprisonment of 15 days to the detenu and the following is the fair translation of the said motion and carried out by way of
resolution by the members of the Tamil Nadu Legislative Assembly:
-------------------------------------------------------
English Translation of the Resolution moved by the Hon. Leader of the House and passed in the Tamil Nadu Legislative Assembly on 23rd March,
1999.
The Leader of the AIADMK Legislature Party Thiru R. Thamaraikkani, M.L.A., has become liable for breach of privilege and also for action
under the Indian Penal Code for assaulting and causing grievous injury to Thiru Veerapandi S. Arumugam, Hon. Minister for Agriculture.
However, considering the dignity of this House, the House resolves to condemn his action and award a simple imprisonment of 15 days to him.
-------------------------------------------------------
6. Following the said resolution passed by the Tamil Nadu Legislative Assembly on 23rd March, 1999 on the same day, the Honourable Speaker
of the Tamil Nadu Legislative Assembly issued warrant of commitment for imprisonment and it read thus:
P.T.R. PALANIVEL RAJAN
B.Sc., B.L.,
SPEAKER
TAMIL NADU
LEGISLATIVE
ASSEMBLY
Telephone
Off. 562708
SECRETARIAT
CHENNAI-9
Dated 23.3.1999
WARRANT OF COMMITMENT FOR IMPRISONMENT
WHEREAS in the order dated the 22nd March, 1999, the Superintendent, Central Prison, Chennai has been required to take into custody Thiru
R. Thamaraikkani and kept him in prison for a period of one week from the date of production of the said delinquent in the Central Prison,
Chennai - 600003.
AND WHEREAS the warrant of arrest for the said Thiru R. Thamaraikkani has been executed by the Commissioner of Police, Chennai and he
has been presently lodged in the Central Prison. Chennai at 2050 hours on 22.3.1999;
AND WHEREAS the Tamil Nadu Legislative Assembly has adopted a motion unanimously on 23.3.1999 to the effect that the said Thiru R.
Thamaraikkani has committed a breach of privilege and contempt of the House and therefore he be taken into custody and kept in prison to
undergo a sentence of simple imprisonment for a period of fifteen days:
AND NOW THEREFORE, I, P.T.R. PALANIVEL RAJAN, Speaker, Tamil Nadu Legislative Assembly direct that the said Thiru R.
Thamaraikkani has committed a breach of privilege and contempt of the House and therefore he be kept in prison to undergo simple imprisonment
for fifteen days from the date of his production in the Central Prison, Chennai in supersession of my direction dated, the 22nd March, 1999, at
Chennai. The above order is without prejudice to any other punishment under the law.
HEREIN fail not.
Given under my hand and seal this the 23rd day of March 1999 at Chennai.
(Sd) (PALANIVEL RAJAN)
To The Superintendent Central Prison, Chennai-600003.
7. So also on 24.3.1999, on the next day, the Honourable Speaker, Tamil Nadu Legislative Assembly issued warrant of arrest in pursuance of a
motion carried out by the Legislative Assembly and the warrant reads thus:
-------------------------------------------------------
P.T.R. PALANIVEL RAJAN
B. Sc., B.L.,
SPEAKER
TAMIL NADU
LEGISLATIVE
ASSEMBLY
Telephone
Off.562708
SECRETARIAT
CHENNAI-9
Dated 24.3.1999
WARRANT OF ARREST
WHEREAS an offence of criminal assault has taken place in the Tamil Nadu Legislative Assembly between 12.31 and 12.35 p.m., on 22nd
March 1999 and the offender being Thiru R. Thamaraikkani, Member, Tamil Nadu Legislative Assembly and the victim being Thiru Veerapandi S.
Arumugham, Hon''ble Minister for Agriculture.
AND WHEREAS the House has adopted a motion unanimously on 23rd March 1999 to the effect that the said Thiru R. Thamaraikkani has
committed a breach of privilege and contempt of the House and therefore he be taken into custody and kept in prison to undergo a simple
imprisonment for a period of 15 days.
AND WHEREAS I, P.T.R. PALANIVEL RAJAN, Speaker, Tamil Nadu Legislative Assembly, directed on 23rd March 1999 that the said
Thiru R. Thamaraikkani, who had committed a breach of privilege and contempt of the House, be kept in the prison to undergo a simple
imprisonment of 15 days.
AND NOW THEREFORE, I, P.T.R. PALANIVEL RAJAN, Speaker, Tamil Nadu Legislative Assembly, direct that the said Thiru R.
Thamaraikkani, wherever he may be, be arrested and produced before the Superintendent, Central Prison, Chennai.
HEREIN fail not.
Given under my hand and seal this 24th day of March, 1999 at Chennai.
Sd/- (PALANIVEL RAJAN)
To The Commissioner of Police, Chennai-8
--------------------------------------------------------
The above five are the impugned proceedings or cause or basis for filing the two Habeas Corpus Petitions, one after another.
8. The relevant portion of the true translation of the minutes of the Legislative Assembly as published in the ''Tamil Nadu Legislative Assembly
Debates Official Report'' in respect of the incidents took place on the floor of the House is extracted hereunder for immediate reference:
Hon''ble Speaker: What were expressed by Sri. Thamaraikkani won''t get a place in the Assembly notes (records) (interventions)
Sri Ira Thamaraikkani: Why? Did I use any unparliamentary words? I shall accept my responsibility; why do you remove my speech?
Hon''ble Speaker: Don''t shout, (Interventions) Don''t shout (Interventions) Don''t shout, Don''t shout, sit down. If I stand all must sit
(interventions).
Hon. Sri Arcot N. Veerasamy: Hon''ble Speaker (interventions)
Sri Ira Thamaraikkani: Give respect and speak. Why do you say (sic) (interventions)
Hon. Speaker: Sit down, please. If I stand all, must sit.
It is not a foul thing to take a photograph with a police official. Photo can be taken with anybody. It should not be said in the Assembly as a fault.
What is wrong in it? What is wrong in taking a photo with a police official?
Sri Ira. Thamaraikkani: I don''t say about the police official. They have taken a photo with a mercenary leader; that is why they say he must not be
arrested (interventions). The police officials themselves say that there afraid of the top officials to arrest him (interventions)
Hon. Speaker: Who told you (interventions) Wait a moment, wait a moment. (Interventions)
Hon. Sri Veerapandi S. Arumugam: Look at the leader here (chaos)
Sri Ira Thamaraikkani: Why do you shout?
Hon. Speaker: Sri Thamaraikkani, (Chaos) please sit down.
Sri Ira Thamaraikkani: Why do these people shout. Let the Speaker say, I will listen to. Who gave them that chance.
Hon. Sri Veerapandi S. Arumugam: Of course, yes, you, too, must address to the Speaker.
Sri Ira. Thamaraikkani: Then why are you shouting?
Hon. Sri Veerapandi S. Arumugam: If you give wrong information against truth, they will shout in that way only.
Sri Ira. Thamaraikkani: What man, against the truth (He swayed his hand strongly by saying so)
Hon. Sri Veerapandi S. Arumugam: Entirely thus (chaos) (Sri Ira Thamaraikkani, not only struck Sri. Veerapandi S. Arumugam''s hand, and fisted
heavily on the face of the Minister. Sri Cho. Karuppasami came forward leaping speedily, folding his dhoti upward (chaos)).
Hon. Speaker: I order that both Sri Karuppasami and Thamaraikkani must get out of the Assembly. (12.35 P.M.)
(Sri Cho. Karuppasami and Sri Ira. Thamaraikkani were taken out of the Assembly by the Assembly sergeant.)
Hon. Sri Veerapandi S. Arumugam, was wiping the blood, dripping for his nose with his hanky (chaos)
Hon. Speaker: All sit down, sit down.
xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
7. Resolution of the Government
With the result of Sri Ira. Thamaraikkani''s assault on the Hon. Minister for Agriculture in the Assembly and Sri Cho. Karuppasami''s misbehavior
against the etiquette of the Assembly, both M/s. Ira Thamaraikkani and Cho. Karuppusami are suspended from the activities of Assembly until the
end of the Sessions of the Assembly.
xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
Hon''ble Speaker: Not only the Hon''ble Members but also the journalists. Government officials, spectators would have witnessed the (barbaric)
uncivilised act which happened here just before. This is a continuous story in the political history of Hon''ble Thamaraikkani. Even in the beginning
of the Assembly Session, I have told him several times. I am not bothered about the past. But I have been saying that on any account. I will not
allow the act of assaulting any member. They told me that he patted gently. But all of you would have witnessed today as to what had happened.
Hon''ble Minister for Agriculture suffered grievous injuries. He suffered bleeding injuries and you would have witnessed his handkerchief being
drenched with blood. Therefore, the leaders of all the parties have witnessed the occurrence and know that it is true.
Therefore, I place the resolution brought forward by the Hon''ble Minister for Health and Electricity, for the decision of the Members.
If agreed, say ''yes'' (yes) If disagreed say ''no''
I opine that no one disagreed.
No one disagreed. Resolution is passed unanimously.
I hereby announce that the Hon''ble Members Thamaraikkani and Karuppasamy are not allowed to take part until the end of this Session.
ANNOUNCEMENT Speaker of the Assembly (22nd March 1999): For the reason that, the act of assault committed on the Hon''ble Minister for
Agriculture of having caused grievous injury has been witnessed directly by the Speaker, the leaders of all parties, all the members of the
Legislature Assembly who were present in the Assembly. Government Officials and the Sergeants of the Assembly, it was unanimously accepted
that, the legislature Assembly can impose punishments on it own, without adopting the usual procedure and that our proceedings should be in such
way safeguarding the sovereignty of the Legislature. This Assembly had severely warned Thiru Thamaraikkani on earlier occasions for having
committed the offence of violating the Assembly Proceedings and that the sentence that, he should be imprisoned for a week imposed upon him
was unanimously accepted by the leaders of all political parties. It was unanimously decided that, he should be awarded simple imprisonment for
15 days and should be imprisoned and the resolution for that, was proposed in the Assembly and emphasis was laid on its implementation. It was
emphasized by everyone, if Thiru Thamaraikkani continues to commit such offence he should be expelled for the remaining Assembly Sessions. On
the basis of this decision, I request the Leader of the House to propose this resolution.
No. 8 GOVERNMENT RESOLUTION
Imprisonment for the Legislative Member, Thiru Thamaraikkani for 15 days for the incidents on 22.3.1999 at the Assembly. Hon''ble Prof. K.
Anbalagan:
Hon''ble Speaker Sir, Thiru. R. Thamaraikkani, President of AIADMK''s Legislative Party in the Assembly had assaulted and inflicted grievous
injury on the Hon''ble Minister for Agriculture Thiru Veerapandi S. Arumugam and apart from having committed an offence of violating the
Assembly proceedings he is also liable to be tried for an offence, punishable under the Indian Penal Code. Even then, his action has been severely
reprimanded and considering the integrity of the Assembly, it is resolved to impose upon him a sentence of simple imprisonment for 15 days.
Hon''ble Speaker: The resolution of the Hon''ble Leader of the House is left to the decision of the Assembly.
Those who agree say ""yes"".
Those who disagree say ""No"".
I am of the opinion that no one will disagree. There is no one to disagree, the resolution is unanimously passed. On the basis of this resolution. I
hereby announce that, the Hon''ble Minister Thiru Thamaraikkani should be imprisoned in the Central Prison, Chennai and to undergo simple
imprisonment for 15 days.
I-PETITIONER''S CASE:
HCP. No. 416/99
9. The version of incidents led to the following of these Habeas Corpus Petitions in the words of the Petitioner reads thus:
4. R. Thamaraikam, hereinafter referred to as ''detenu'' for the sake of convenience, is a Member of Tamil Nadu Legislative Assembly having been
elected by the people of Srivilliputtur Assembly Constituency. He is also the leader of AIADMK party Legislative Wing. He was participating in
the assembly proceedings on 22.3.1999 particularly regarding the law and order situation. At that time according to the detenu he was assaulted
by a group of members belonging to DMK party and the detenu was injured. From the report it appears that in the melee, the Minister Thiru
Veerapandi Arumugham was also injured. In the assault another Member by name Karuppusamy endeavoured to protect the detenu and in the
process he was also dealt with several blows and was injured. But for the timely intervention of the Watch and Ward staff of the Assembly, both
the detenu and the said Karuppusamy may have received life threatening injuries. After the Watch and Ward staff protected them and took them
out of the assembly, the detenu and Karuppusamy left to seek medical aid for their injuries. Later they also met the leader of their parts to explain
what had happened in the Assembly and to dispel the one-sided and slanted version that is likely to be aired by the DMK party and its members.
The Petitioner states that what exactly transpired and what preceded it and serious provocative statements could not be delineated in full, as the
second Respondent exercising his fiat had expunged those portions of the proceedings.
10. The Petitioner also states that the detenu was escorted out and thereafter a resolution was passed suspending the detenu and the said M.L.A.,
Karuppusamy from attending Assembly for the rest of the Session and also a resolution had been passed to the effect that the detenu shall not be
allowed to use the accommodation in the Legislative Assembly Hostel. It is further stated that very many demands were made on the floor of the
Assembly that the detenu must be severely dealt with and must be punished. The Petitioner has no personal knowledge, but he relies upon the
reports appearing in Dailies. According to the Press, the Speaker had stated that he would consider the demand and he would see whether there is
any precedent for imposing a punishment.
11. While the detenu was taking treatment in a Private Hospital at about 5.30 p.m., a large number of Police Personnel arrested the detenu and
escorted him out of hospital as if he was being taken to a Magistrates house for remand. But he was actually taken to General Hospital for Medical
check up and thereafter lodged in Central Prison, Chennai. At that time, the detenu was served with an order of the second Respondent purporting
to punish him with one week imprisonment to be undergone in Central Prison, Chennai. The impugned order refers to the incident of criminal
assault in the Legislative Assembly and that the detenu is an offender and the Speaker while exercising the powers has ordered arrest and
committed him in Central Jail for a period of one week.
12. Challenging the said order of committal to prison and incarceration as violative of Article 21 violation of fair procedure and constitutional rights
which is unprecedented, the present Habeas Corpus Petition has been filed. The detenu had been made to suffer imprisonment without following
the principles of natural justice and without affording any sort of opportunity. The imprisonment of the detenu, it is claimed has no legal sanction. It
is contended that the Legislative Assembly has no judicial powers as that of an ordinary Criminal Court and even if a criminal offence is committed
in the Assembly, it is triable only by an ordinary criminal court and not by the Assembly itself.
13. According to the Petitioner, the Assembly will not have the power to punish a person for the alleged offences said to have taken place in the
Assembly. It is further pointed out that no resolution had been passed by the Legislative Assembly for any breach of privilege, nor it is a
culmination of the recommendations of any Privileges Committee and such a procedure is sine qua non for taking action against any member for his
perceived action in breach of privilege of the Assembly.
14. It is further pointed out that the second Respondent is prejudiced and biased against the detenu and the political antagonism is the cause for the
said unusual and criminal cruel punishment. Without an enquiry blame cannot be apportioned of what had happened in a melee and it would be
travesty of justice besides, violation of Articles 14 and 21 of the Constitution to deprive a person of his liberty by imprisonment when he himself
suffered injuries and was a victim of assault by many number of persons. It is contended that without a regular enquiry it could never be found out
who was responsible for the incident in the Assembly and it was the detenu who had to be rescued from a serious injury and assault. Hence the
Petitioner has pray ed for enlargement of the detenu on bail as punishment of imprisonment is illegal and if he is not enlarged on bail, the very writ
petition will become infructuous.
HCP. No. 433/99
15. H.C.P. No. 433 of 1999 had been filed by the very same Petitioner wherein after referring to the averments set out in H.C.P. No. 416 of
1999, the Petitioner has averred that this Court on 22.3.1999 directed that the detenu be enlarged on bail pending disposal of the writ petition
subject to the condition that the detenu shall reside within the city of Chennai. The Petitioner was waiting along with his counsel in the Central
Prison awaiting release of the detenu and the bail order had also reached the Superintendent of Central Prison. But the detenu was not released on
that day. The Superintendent of Central Jail informed the deponent that the Legislative Assembly had passed a resolution enhancing a punishment
for the incident that look place on 22.3.1999 from one week to two weeks and that he has no instruction to release the detenu and that the detenu
is bound to undergo the remaining period of 13 days.
16. The deponent came to know through media that a resolution has since been passed by the Legislative Assembly enhancing the imprisonment
from one week to two weeks There is no justification at all for the Central Jail Superintendent to detain the detenu even after grant of bail and it is a
contempt of lawful orders passed by this Court. To avoid technical objections the Petitioner is challenging the resolution of the Assembly which
enhanced the period of sentence from one week to two weeks for the alleged incident of assault on the floor of the Assembly on 22.3.1999. In
para 6, 7 and 8 of the Affidavit, the Petitioner had given the version as was represented to him by the detenu while pointing out that the second
Respondent. Speaker had ordered expunging of portions of the proceedings.
17. The order of imprisonment for a period of two weeks as well as committal issued by the Speaker of the Legislative Assembly is in violation of
Article 21 of The Constitution as it has been passed without giving any sort of opportunity and a punishment of imprisonment has been imposed.
Identical contentions that has been raised in HCP. No. 416 of 1999 is also advanced in the second H.C.P. as well. The resolution of the
Legislative Assembly enhancing the punishment to two weeks is not qualitatively different and it also suffers for the same vice namely violation of
procedure as the detenu had been convicted and sentenced in violation of fair procedure required to be followed under Article 21 of The
Constitution.
18. It is further contended that the Legislative Assembly does not possess judicial power to deal with a crime be it committed within the Assembly
Hall or by its members inter-se. As the sentence of two weeks imprisonment imposed by the Legislative Assembly is violative of Article 14 and 21
of The Constitution and as the said Assembly does not possess judicial power the detenu should be ordered to be set at liberty while quashing the
resolution passed on 22.3.1990.
II-RESPONDENTS CASE:
19. On behalf of the first Respondent the Additional Secretary to Government. Public Department had sworn to an affidavit in H.C.P. No. 416 of
1999 while reiterating the contents of the counter affidavit filed in H.C.P. No. 433 of 1999 by the first Respondent. The first Respondent had
contended that the detention of Legislative Assembly Member R. Thamaraikkani is not illegal. It has been stated that or. 2.2.3.1999 the
unfortunate incident took place inside the Assembly and the Hon''ble Minister for Agriculture Thiru Veerapandi Arumugam was hit on his nose by
Legislative Assembly Member R. Thamaraikkani and caused him bleeding injury.
20. According to the first Respondent, the Hon''ble Speaker after taking note of the views expressed by several Members of the Assembly and
pending consideration of the issue in question as an interim measure, ordered arrest of Legislative Assembly Member R. Thamaraikkani and to
keep him in the Prison for one week. According to the first Respondent, the Hon''ble Speaker has power to initiate such action as is necessary to
maintain the dignity and order of the Legislative Assembly. In the present case the entire Assembly witnessed the unfortunate incident inside the
Assembly and pending final decision on the issue arising out of such incident, the Speaker of the Assembly had ordered arrest of Legislative
Assembly Member R. Thamaraikkani and pursuant to the said order and arrest, the said Legislative Assembly Member R. Thamaraikkani was
imprisoned on 22.3.1999. In the circumstances the arrest of Legislative Assembly Member R. Thamaraikkani and his remand cannot be
considered to be an illegal detention.
21. The Respondents 2 and 3 had refused to accept the service as according to them they cannot be called upon to answer any question under
Article 226 of The Constitution by way of a Writ Petition or Habeas Corpus proceedings that they are supreme and none of their actions could be
called in question or the subject matter of a judicial review before this Court. On the directions of the second Respondent, the Hon''ble Speaker,
the third Respondent had also declined to accept the service of Rule Nisi and adopted the same stand. This stand of the second and third
Respondents requires to be mentioned and considered at the appropriate context. Had the said Respondents come forward to disclose their stand
or disclosed as to what was in their mind while passing the first order or what is the basis or authority under which such order of arrest for one
week was ordered, this Court would have a chance to examine. By their refusal they have made themselves answerable and this Court, if warrants
or justified may have to draw its own conclusion.
22. In HCP. No. 433 of 1999, on behalf of the first Respondent, the Additional Secretary to Government, Public Department filed a separate
counter affidavit. According to the first Respondent, no writ is maintainable as the detention of Legislative Assembly Member R. Thamaraikkani is
not illegal and the said detenu is not in illegal detention. It is further contended mainly that the writ petition is not maintainable. It is stated that the
Legislative Assembly Member R. Thamaraikkani was arrested and imprisoned on 24.3 1999 pursuant to an unanimous decision dated 23.3.1999
taken by the Tamil Legislative Assembly. The English version of the resolution passed by the Legislative Assembly on 23.3.1999 reads thus:
The Leader of the A.I.A.D.M.K Legislature Party Thiru R. Thamaraikkani, M.L.A., has become liable for breach of privilege and also for action
under the Indian Penal Code for assaulting and causing grievous injury to Thiru Veerapandi S. Arumugam, Hon. Minister for Agriculture.
This resolution is the basis of the second set of proceedings by which the detenu was subjected to incarceration.
23. The above motion was carried out unopposed in the Assembly. As a result of which the proceedings of the Honble Speaker dated 22.3.1999
stands superseded by the said motion carried out on 23.3.1999. Following the same a warrant of commitment dated 23.3.1999 and warrant of
arrest dated 24.3.1999 were issued against the said Legislative Assembly Member R. Thamaraikkani and he was arrested and imprisoned on
24.3.1999 to undergo simple imprisonment for a period of fifteen days.
24. It is contended that the Legislative Assembly Member R. Thamaraikkani was not under illegal detention and a writ of Habeas Corpus is not
maintainable. The Legislative Assembly Member R. Thamaraikkani was imprisoned after a valid resolution passed by the Tamil Nadu Legislative
Assembly and therefore it cannot be treated as an illegal detention. The imprisonment was effected pursuant to the decision by means of resolution
of the House punishing the Legislative Assembly Member R. Thamaraikkani for breach of privilege and contempt of the House. The Petitioner had
not questioned the power of the Legislative Assembly to punish a Member or outsider for breach of privilege or contempt of the House. When
once the power to punish a member for contempt of house or breach of its privilege is not questioned, the Petitioner cannot maintain the present
writ of Habeas Corpus.
25. The first Respondent further stated that the order dated 23.3.1999 passed by this Court directing the release of the said Assembly Member
passed in H.C.M.P. No. 40 of 1999 in H.C.P. No. 416 of 1999 was received at the Central Prison on 24.3.1999. In the meanwhile Thiru D.
Veerasekharan, Advocate for the Petitioner produced a copy of the said order of the High Court at Central Prison at 20.20 hours on 23.3.1999.
In the light of the existing Rule 614 of the Tamil Nadu Prison Rules, no action could be taken on a telegram directing the release of a prisoner
unless it has been sent by the Commissioner and Secretary to Government or the Registrar of the High Court. As there was no direct
communication from the High Court, there is no violation of the orders passed by this Court.
26. The first Respondent further adds that there was no violation of the order passed by this Court and the Superintendent of the Central Jail has
not committed any contempt. The lock up of the Prisoners was completed at 18.30 hours on 23.3.1999 and the Superintendent of the Central Jail
had left the Prison after satisfying himself that the prisoners were properly locked up and nothing untoward happened. Immediately after the receipt
of the notice from the Hon''ble Court the first Respondent contacted the Tamil Nadu Legislative Assembly Secretary and obtained the particulars
of its proceedings dated 22nd and 23rd of March, 1999
27. It is seen from the records that at 12.25 p.m., on 22nd March. 1999 the Hon''ble Deputy Speaker who was in the Chair called upon the
Legislative Assembly Member Thiru C. Karuppasamy to speak on the Budget for 1999-2000. During the course of his speech the Hon''ble
Minister for Health and Electricity challenged some of the statements made by the said Member. The Legislative Assembly Member R.
Thamaraikkani intervened and stated that he would divulge certain information in support of Member Kamppasamy''s contentions and allegations.
When the Legislative Assembly Member R. Thamaraikkani continued to assert the charge and tried to implicate the family members of the Hon''ble
the Chief Minister, the Hon''ble Minister for Agriculture intervened and refuted the allegations.
28. It is seen from the records that in the course of such heated exchange between the members and the Hon''ble Minister, the Legislative
Assembly Member R. Thamaraikkani had hit the Minister on his hand and then on his nose. The Hon''ble Speaker ordered the Sergeant of the
House to escort Legislative Assembly Members R. Thamaraikkani and C. Karuppasamy safely out of the House and neither of them were injured.
They were cordoned off by certain members belonging to opposition parties and the watch and ward staff. The Hon''ble Minister for Health and
Electricity moved a motion on 22.3.1999 itself to the effect that both the members should be barred from the service of the House for the
remainder of the Session.
29. The Leaders of various political parties who were present in the House spoke on the incident and demanded that action should be taken
against the Legislative Assembly Member R. Thamaraikkani for his unreasonable conduct within the House. The Hon''ble Minister for Agriculture,
who had a bleeding nose was taken to the room of the Hon''ble Speaker and was given first aid by the doctors of the Secretariat Dispensary. The
Hon''ble Speaker wanted to explore the various possibilities for imposing punishment on the Legislative Assembly Member R. Thamaraikkani for
his misconduct within the House and he needed time for that and he also wanted to ascertain the views of the members before proceeding further.
In the circumstances pending final decision of the House, the Hon''ble Speaker ordered arrest of the Legislative Assembly Member R.
Thamaraikkani. A warrant of commitment was therefore issued to the Superintendent of Central Prison to take the said Member into custody and
keep him in prison for a period of one week from the date of production. The above order was not by way of a punishment and was only a
temporary measure awaiting the final decision by the House.
30. On 23.3.1999 the Hon''ble Speaker convened the Meeting of the Leaders of all Legislature Parties in his room at 12.00 noon and after
ascertaining the views of the leaders, a Motion was moved in the House for imposing a punishment of simple imprisonment for the Legislative
Assembly Member R. Thamaraikkani for a period of 15 days from the date of his custody viz., 22.3.1999. The resolution of the House was
passed unanimously. It is on the basis of the said resolution, fresh warrant of commitment for imprisonment of the said Legislative Assembly
Member R. Thamaraikkani was issued and arrested on 24.3.1999 and imprisoned. The order of commitment would show that the resolution of the
Legislative Assembly dated 23rd March 1999 was in supersession of the orders issued on 22nd March, 1999.
31. The stand of the Petitioner that the Legislative Assembly enhanced the punishment front one week to 15 days is not correct. It is seen from the
commitment warrant dated 22.3.1999, the Hon''ble Speaker had not imposed any punishment on the Legislative Assembly Member R.
Thamaraikkani. The Honble Speaker had merely ordered his arrest as an interim measure, while the Assembly was considering the issue as to
whether he should be punished for the breach of privilege or contempt of the House.
32. According to the first Respondent the Legislature has the power to punish by way of imprisonment any errant member for committing contempt
of the House and the arrest of the member cannot therefore be considered to be an illegal detention.
33. It is seen from the proceedings of the Assembly that the allegation that the Legislative Assembly Member R. Thamaraikkani was assaulted by a
group of Members belonging to D.M.K. party and that he sustained injury is not true, while the proceedings show that the Legislative Assembly
Member R. Thamaraikkani first hit the Hon''ble Minister for Agriculture on his hand and then hit him on his nose and caused bleeding injury to the
Honble Minister. The Honble Minister was hospitalised and had seven sutures for the wound on his face. The Legislative Assembly Member R.
Thamaraikkani who was wearing two huge rings on his fingers hit the nose of the Minister.
34. From the Assembly proceedings itself, the first Respondent understands that the incident happened in the presence of the Tamil Nadu State
Legislative Assembly Members and in the presence of the Visitors and the Press. The Respondent understands from the speeches of the Members
of the Tamil Nadu Legislative Assembly on 22.3.1999 and 23.3.1999 the resolution of the Tamil Nadu State Legislative Assembly was passed
after full deliberation on the subject. The Legislature is the Master of its own procedure and is the sole Judge of the question whether its contempt
has been committed or not. It is by now well settled that the Parliaments and Legislative Assemblies have power to punish its errant members as
well as outsiders playing with the Honour of the House.
35. It is the further case of the first Respondent that from the records of the Assembly proceedings, the Hon''ble Speaker had immediately after
seeing the Honble Minister hurt by the Legislative Assembly Member R. Thamaraikkani directed the Sergeant of the House to escort the said
Member out of the H6use. It is seen from the Assembly proceedings that the allegations that Legislative Assembly Member Karuppasamy and
another Member belonging to A.I.A.D.M.K. Party also received several blows, and injured are not true. The first Respondent further submits that
the imprisonment of the Legislative Assembly Member R. Thamaraikkani was pursuant to a legally valid resolution passed unanimously by the
Legislative Assembly and therefore his imprisonment cannot be considered to be one of illegal detention. The extract of speeches made by the
Leader of the Opposition, Member belonging to the Communist Party of India, Member belonging to the Indian National League, Member
belonging to P.M.K., Member belonging to MGR ADMK, Member belonging to the Communist Party of India (Marxist) and an Independent
Member, which are annexed to the affidavit are extracts of the proceedings and the sentiments expressed by the said Members or the Leader of
the Opposition as the case may be.
36. By the resolution the Legislative Assembly suspended its two members viz., R. Thamaraikkani and Karuppasamy from attending the Assembly
proceedings for the rest of the said Session. Further, as an interim measure, the Hon''ble Speaker issued warrant of arrest against the Legislative
Assembly Member R. Thamaraikkani pending consideration of the issue by the State Assembly and directed that the Legislative Assembly
Member R. Thamaraikkani should not be permitted to stay or use the accommodation in the Legislature''s Hostel. Pursuant to the said order the
Legislative Assembly Member R. Thamaraikkani was arrested on 22.3.1999 by the Police. The warrant of arrest is dated 22.3.1999 and the Seal
of the Speaker is also affixed on the Warrant. The said order is legal and was passed in the interest of the Tamil Nadu Legislative Assembly and its
members.
37. Pursuant to the warrant of arrest issued by the Hon''ble Speaker against the Legislative Assembly Member R. Thamaraikkani on 22.3.1999,
the police was directed to arrest the Legislative Assembly Member R. Thamaraikkani wherever he might be and produce him before the
Superintendent, Central Prison, Chennai, for lodging him at Central Prison for one week and the warrant was forwarded to the Joint Commissioner
of Police for execution. The concerned Deputy Commissioner of Police, Guindy, Assistant Commissioner of Saidapet Range, Inspector of Police
(L & O), E-3, Teynampet Police Station, and other officers were directed to execute the warrant.
38. As information was received that the Legislative Assembly Member R. Thamaraikkani was in Poes Garden, the Police Team was waiting
outside the Poes Garden to execute arrest warrant. At about 17.00 hours on that day an ambulance followed by few private vehicles left Poes
Garden and reached Apollo Speciality Hospital. The Police team followed and reached the above Hospital. In the above Hospital the Legislative
Assembly Member R. Thamaraikkani was then kept in the emergency ward without an medical check up and treatment. At about 18.15 hours, the
warrant was executed and Thiru R. Thamaraikkani was taken to Government General Hospital, Chennai for medical check up. At the General
Hospital, a team of Doctors consisting of Dr. N. Ramachandran, Prof. of Surgery, Dr. Damodaran. casualty Medical Officer, Dr. Udesh
Ganapathy, Casualty Medical Officer and Dr. Rajadurai, Resident Medical Officer under the Leadership of Dean Dr. Premkumar examined the
Legislative Assembly Member R. Thamaraikkani thoroughly for about two hours. The Doctors have taken X-ray on skull and chest. ECG, ultra
sound, scan of abdomen and blood tests were conducted by them. The Police Team obtained the opinion of the duty physicians and duty
cardiologist. The said Doctors opined that the Legislative Assembly Member R. Thamaraikkani did not require any hospitalisation and therefore
they handed over the patient to the police. The police Officers after thorough medical check up by the team of Doctors and by obtaining medical
opinion, took Thiru R. Thamaraikkani to Central Prison, Chennai and produced him before the Superintendent, Central Prison, Chennai as per the
warrant issued by the Hon''ble Speaker of the Legislative Assembly.
39. The allegation that the said Legislative Assembly Member R. Thamaraikkani was taken to the General Hospital for perfunctory Medical Check
up is denied. It is incorrect to contend that the Legislative Assembly Member R. Thamaraikkani was illegally deprived of liberty. As the incident
happened in the presence of Members of the Stale Assembly the action of the Hon''ble Speaker is legal and valid. The averments set out in para
11 and 12 are denied. The entire Assembly witnessed the unfortunate incident of a Member causing grievous injury to the Hon''ble Minister of the
State and the punishment was imposed by the Assembly by an unanimous resolution passed by all the members present in the Assembly including
the Opposition Leader. The Petitioner also had not disputed the fact that the Legislative Assembly Member R. Thamaraikkani caused injuries to
the Hon''ble Minister for Agriculture. Hence there is no violation of any of the procedure, nor violation of principles of natural justice.
40. It is contended that the Petitioner had approached this Court with a wrong impression that the Tamil Nadu Legislative Assembly had exercised
the powers of a ordinary criminal court while it is not so. It is seen from the warrant of commitment that the punishment of 15 days simple
imprisonment imposed on the Legislative Assembly Member R. Thamaraikkani is only for committing contempt of the House and not for offence
under the Indian Penal Code.
41. The averments set out in para 13 of the affidavit filed in support of HCP. No. 433/99 are denied. After the unfortunate incident that took place
on 22.3.1999, the Assembly discussed at length what action should be taken against the Legislative Assembly Member R. Thamaraikkani for
committing contempt of the House. It is seen from the Assembly proceedings pursuant to the said discussions, the Leader of the House proposed a
resolution referred to above was passed unanimously by the House. The allegation that there is no resolution of the Assembly is to punish the
detenu for breach of privilege is not correct.
42. It is pointed out that the Tamil Nadu State Legislative Assembly is governed by its Rules framed under Article 208(1) of The Constitution. Rule
225 of the Tamil Nadu State Legislative Assembly Rules, which is relevant, reads thus:
If the speaker, holds that the matter raised affects the privilege or amounts to a contempt of the House and requires intervention of the House, he
may allow a motion to be made by any Member that the alleged breach of privilege be referred to the Committee of Privileges or in the alternative
that it he dealt with by the House itself.
43. The motion was moved by the Leader of the House by way of a resolution and the resolution was unanimously passed. The stand of the
Petitioner that referring the matter to a privilege committee is sine qua non for taking action against any member for Breach of Privilege is not
correct. The punishment imposed by the Legislative Assembly and the Speaker is only implementing the resolution. As the entire incident was
witnessed and it took place in the very presence of the Members of the Legislative Assembly, Press and Visitors, the Assembly in the resolution
imposed the punishment. The Legislature''s power to punish by way of imprisonment has not been questioned by the Petitioner and there is no
violation of Articles 14 and 21 of The Constitution.
44. According to the first Respondent the Tamil Nadu Legislative Assembly exercised its sovereign power and punished its member for contempt
of the House. The matters which relate to the proceedings, of the House has to be dealt with only by the House and Article 212 of The
Constitution prohibits interference by Courts with the proceedings of the Legislatures. The stand of the Petitioner that the crime committed within
the four walls of an Assembly is amenable to jurisdiction of ordinary courts only is not correct. The Legislative Assembly had not punished the
Legislative Assembly Member R. Thamaraikkani for an offence under the Indian Penal Code and in the present case it is seen from the Assembly
proceedings that the House considered the issue relating to breach of privilege and for committing contempt of the House and imposed the
punishment. The imposition of such punishment is for breach of privilege and for committing contempt of the House. It is untenable to contend that
the Legislature had exceeded its powers and encroached upon judicial powers is not correct. The question of giving notices or giving an
opportunity to the errant member does not arise as the Assembly had witnessed the entire incident and exercising its power had resolved to punish
the errant member for its contempt. Only after the resolution was carried out on 23.3.1999, the Petitioner had moved HCP. No. 416 of 1999 at
2.15 p.m.
45. The extract of proceedings of the Assembly and in particular to the speeches made by the Leader of Opposition as well as Political Leaders
will be referred to at the proper and appropriate places.
46. An additional counter affidavit has been filed on behalf of the first Respondent stating that any member of the Legislative Assembly including
the Legislative Assembly Member R. Thamaraikkani could very well peruse the proceedings of the Assembly in the Legislative Assembly Library
and the proceedings of the Assembly are available in the Library and the Member can also bring an outsider for assistance to translate the
proceedings.
47. In H.C.P. No. 433 of 1999 also Respondent No. 2 namely the Hon''ble Speaker, Tamil Nadu Legislative Assembly and its Secretary have
refused to receive the rule nisi. The earlier Division Bench considering the importance of constitutional issues involved called upon M/s. R.
Krishnamurthy, Mr. K. Alagirisamy as well as Mr. Habibulla Basha, Senior Counsel to assist the Court. At the hearing, this Court had valuable
assistance from the said three Senior Counsel and we are bound to place the valuable services rendered by the said three counsel.
48. In H.C.M.P. No. 42 of 1999, on 25.3.1999, the following interim order was passed by the Division Bench consisting of T. JAYARAMA
CHOUTA, AND S. THANGARAJ, JJ.
Heard.
2. We direct the detenu R. Thamaraikkani, Member of the Tamil Nadu Legislative Assembly, who is presently undergoing imprisonment in Central
Prison, Madras pursuant to the resolution passed by the Tamil Nadu Legislative Assembly on 23.3.1999 punishing the detenu to suffer
imprisonment for a period of fifteen days in Central Prison, Madras, to be released on bail on his executing a bond for a sum of Rs. 25,000/-
(Rupees twenty five thousand only) with one surety for a like sum to the satisfaction of the Chief Metropolitan Magistrate, Madras.
49. On 25.3.1999, the same Division Bench in H.C.M.P. No. 41 of 1999 granted interim order as prayed suspending the operation of the
Resolution passed by the Legislative Assembly on 23.3.1999 punishing the detenu for a period of 15 days.
50. In H.C.M.P. No. 40 of 1999, by order dated 23.3.1999 the said Division Bench passed the following interim orders, while ordering issue of
rule nisi:
Issue notice to the Respondents. The Order of warrant of arrest issued by the second Respondent dated 22.3.1999 is suspended and the detenu
who is in Central Prison, Chennai is directed to be released forthwith and he is directed, to remain in Chennai and not to leave this place without
further direction from this Court.
Time is granted till 30.3.1999 to file counter.
The order of suspension passed by the Speaker remains in force.
51. In H.C.P. No. 416 of 1999, on 8th April, 1999, the same Division Bench issued the following further directions:
Issue notice to the 3rd Respondent only returnable by 12.4.1999. The grievance of the learned Additional Advocate General is that, in the order
passed on 25.3.1999 in H.C.P. No. 433 of 1999, we have not incorporated the order passed in the earlier Habeas Corpus Petition in which he
had stated that in case the Habeas Corpus Petition is dismissed, then he has to undergo the remaining period of sentence, it is needless to say that
in case the detenu fails in the Habeas Corpus Petition, he has to undergo the remaining period of sentence. He is also directed not to leave Chennai
without prior permission from this Court. Post on 12.4.1999.
This direction is relevant and has a bearing on the ultimate order as well as one of the contentions advanced by the counsel for Petitioner.
52. The challenge revolves around the unpleasant incident that took place on the floor of the Legislative Assembly on 22.3.1999 and the
consequent incarceration order for one week at the first instance and subsequently for fifteen days, by the Resolution that came to be passed on
the next day.
III-CONSTITUTIONAL AND STATUTORY PROVISIONS:
53. The writ Petitioner not being a Member of the Tamilnadu Legislative Assembly has no personal knowledge as to what had happened on the
floor of the Assembly on both days and he relies mostly on the reporting in various Dailies. The detenu who had been granted bail by a Division
Bench of this Court also had not so far chosen to place his version of events or occurrence on the floor of the Legislative Assembly on 22.3.1999
and the events that followed. This conduct of the detenu also deserves to be noted as seen from the extracts of the fair translation of the very
minutes of the Legislative Assembly relating to the incidents that occurred on the floor of the Assembly on 22.3.1999 and 23.3.1999 as published
by the Legislative Assembly Secretariat, namely Tamil Nadu Legislative Assembly Debates Official Report, relating to the Debates on 22nd and
23rd March, 1999, which is cited supra.
54. Heard Mr. B. Kumar, learned senior Counsel appearing for Mr. D. Veerasekharan, learned Counsel for the Petitioner, Mr. T.R. Rajagoplan,
Additional Advocate General, appearing for the Respondent No. 1. None appeared for Respondents 2 and 3 in both the Habeas Corpus Petitions
and M/s R. Krishnamurthy, Senior Counsel, K. Alagirisamy, Senior Counsel were appointed as amicus curiaes and considered the written
submissions submitted by Mr. Habibulla Basha, Senior Counsel, as well.
55. The following points arise for consideration in these two Habeas Corpus Petitions:
1 Whether the Habeas Corpus Petitions are maintainable?
2. Whether the powers of judicial review under Article 226 of The Constitution in respect of the impugned incarceration proceedings could be
invoked and remedy of writ is available or maintainable to quash the impugned proceedings?
3. Whether the first warrant of arrest, first warrant of commitment issued by the Hon''ble Speaker of the Tamil Nadu Legislative Assembly on
22nd March, 1999 and incarceration of the detenu ordered by the Speaker of the Tamil Nadu Legislative Assembly for one week are illegal,
without authority or jurisdiction or violative of Articles 14 and 21 of The Constitution?
4. Whether the challenge to Legislative Assembly resolution dated 23rd March, 1999 by way of writ petition under Article 226 of The Constitution
is maintainable?
5. Whether the second warrant of commitment for incarceration ordered for fifteen days and warrant of arrest issued by the Hon''ble Speaker of
the Tamil Nadu Legislative Assembly on 24th March, 1999 based upon the resolution passed by the Tamil Nadu Legislative Assembly are legally
valid and sustainable, or liable to be interfered? Whether it is violative of Articles 14 or 21 of The Constitution?
6. Whether the Speaker of the Tamil Nadu Legislative Assembly has independent powers or authority or jurisdiction to order arrest or
commitment to prison or to incarcerate for contempt or breach of privilege of the House, suo motu and without a resolution of the House?
7. Whether the Speaker has independent power or authority or jurisdiction to order interim arrest of the detenu and remand him to prison?
8. Whether alter having suspended the Legislative Assembly Member R. Thamaraikkani, the Legislature has got the authority or power to impose
the punishment of committal for fifteen days once again and whether such action of the Legislature is violative of Article 21 or double punishment?
9. Whether the first arrest and committal and consequential incarceration are liable to be interfered? If so, to what extent? To what relief?
10. Whether the refusal to accept the service of Rule Nisi and answer the Rule Nisi by the Respondents 2 and 3 is in order? What are the
consequence of such refusal?
11. Whether the Rule of Presumption is applicable to the official reports published by the Tamil Nadu Legislative Assembly Secretariat with
respect to its Debates?
12. To what relief, the Petitioner is entitled to?
56. Before taking up the points for consideration it is essential to refer to the constitutional provisions Chapter III in PART-VI of The Constitution
provides for the Constitution of Legislatures in States, the composition of Legislative Assemblies, duration of State Legislatures, qualification of
membership, officers of the State Legislature, conduct of business, disqualification of members, powers, privileges and immunities of State
Legislatures and their members, the legislative procedure in financial matters and procedure generally as seen from Articles 168 to 212 of The
Constitution. In terms of Article 189 all questions at any sitting of a House of Legislature of a State shall be determined by a majority of votes of
the persons present and vote, other than the Speaker or Chairman, or person acting as such. However, the Speaker or Chairman shall have a
casting vote in the case of an equality of votes. A house of the Legislature shall have the power to act notwithstanding any vacancy in the
membership thereof and any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some
persons who are not entitled so to do sat or voted or otherwise took part in the proceedings.
57. Article 194 of The Constitution provides the powers, privileges, duties of the House of Legislature and of the Members and Committees
thereof and they have freedom of speech in the Legislature of every State. No member of the Legislature of a State shall be liable to any
proceedings in any Court in respect of any thing said or any vote given by him in the Legislature or any Committee thereof. Article 194(3) lays
down the privileges of the Legislature in respect of matters not provided in Clauses (1) and (2) and leaves privileges of other matters to be
determined while prescribing that the house will have the same privileges as that of the HOUSE OF COMMONS as they existed at the
commencement of the Constitution. Though Clause (3) of Article 194 was substituted by the Constitution Forty Second Amendment, 1976 but it
had not been notified and the Constitutional provision as was in existence before 42nd Amendment remains in force.
58. Article 208 of the Constitution enables the House of the Legislature of a State to make Rules for regulating the conduct of its procedure and
the conduct of its business, but subject to the provisions of The Constitution. Article 211 imposes a restriction on the Legislature of a State to
discuss with respect to the conduct of any Judges of the Supreme Court or other High Courts in the discharge of his duties. Article 212 provides
that validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure
before a Court and that no officer or members of the Legislature of a State shall be subject to jurisdiction of any Court in respect of the exercise by
him of those powers.
59. From the above constitutional provisions, it is clear that all decisions of a Legislative Assembly are taken by an ordinary majority of those
present and voting unless a special majority is called for in respect of motions as provided for in the Constitution. Decision of the House on any
question can be taken only by means of a motion moved by a Member and the only mode by which a decision on a proposed measure or question
is by recording votes for or against it. Generally questions are decided by voice vote and resorting to recording of votes is done only when the
opinion of the Speaker is challenged by the Members and a demand is made in this respect by Members of the House. In case of tie, the Speaker
of the Assembly has got the right to caste a vote. The Speaker or the person acting as such cannot vote in a division and he has only a casting vote
which he could exercise in case of equality of votes.
60. The process of decision taking by a House of Legislative Assembly is only by the said procedure and except otherwise provided in the Rules
the Speaker has no power to take a decision, nor he had been conferred with any independent powers or inherent or incidental authority to act in a
given situation apart from the decision of the House. Nor there is anything to show that the Speaker of the Legislative Assembly has got any
inherent or absolute power to act except as otherwise provided in PART-VI. Chapter-III of The Constitution and the Rules framed thereunder.
61. In exercise of powers conferred under Article 208(1) of The Constitution, the Tamil Nadu Legislative Assembly had framed the Tamil Nadu
Legislative Assembly Rules. The said Rules prescribe the procedures to be followed by the Assembly Chapter-XX provides the Constitution of
Committees and regulate the procedure of those Committees. One of the Committees constituted being ""COMMITT OF PRIVILEGES"" Rules
219 to 230 are the relevant rules relating to Committee of Privileges. Rules 253 and 254 relate to House Committee. Rule 286 of Chapter-XXIII
provides for miscellaneous matters which includes residuary power of the Speaker etc., In the present case Rules 219 to 230 are some of the
relevant Rules which may require reference. Rule 219 provides that a Member may with the consent of the Speaker raise a question involving a
breach of privilege either of a Member or of the House or of a Committee thereof. Rule 220 prescribes issue of a motion to raise a question of
privilege and the procedure thereof. Rule 220 which is relevant is extracted herein:
220. Notice of a motion to raise a question of privilege together with a brief statement shall be given at least one hour before the commencement of
the sitting on the day on which the question is proposed to be raised to (i) the Speaker (ii) the Secretary and (iii) the Leader of the House. If the
question raised is based on a document, the notice shall be accompanied by the document:
Provided that the notice intended for the Leader of the House may be handed over to the Secretary for being forwarded to the Leader of the
House:
Provided further that if it is against any other Member of he House (including a Minister) a copy of such notice shall be given to him through the
Legislative Assembly, Secretariat:
Provided further that in respect of a matter of privilege arising during the sitting of the House the Speaker may waive such notice and deal with the
matter as he deems fit.
62. On the Speaker giving his consent to raise a question of privilege the same has to be raised after the questions and before the list of business
for the day. Rule 222 prescribes the condition for admissibility of the right to raise a question of privilege. Rule 225 provides that if the Speaker
holds that the matter raised affects the privilege or amounts to contempt of the House and requires the intervention of the house, he may allow a
motion to be made by any Member as to the allege breach of privilege be referred to the Committee of Privileges or in the alternative that it may be
dealt with by the House itself. Thus it is open either to refer the matter so raised to the Committee or privileges or in the alternative the same could
be dealt with by the House itself. In case the matter is referred to the Committee of Privileges, the report to be tabled and a motion may be moved
in the name of the Chairman of the Committee or any Member of the Committee designated by the Speaker. Rules 229 and 235 relate to the
procedures after presentation of the report.
63. It is also essential to refer to the statutory Assembly Rules which confers power on the Speaker for enforcement of the Rules and to prevent
disorder. Rule 117 of the Tamil Nadu Legislative Assembly Rules provides that the Speaker shall have all powers necessary for the purpose of
enforcing the Rules and preventing disorder. Rule 118 enables the Speaker to direct a Member of the House to discontinue his speech who
persists in irrelevance or any tedious repetition. Rule 119 of the Rules enables the Speaker if in his opinion that such words have been used in
debate which are defamatory or indecent or unparliamentary or indignified or incriminatory or charges levelled against another Member without the
Speaker''s prior permission he may in his discretion order that such words are part of the proceedings to be expunged from the proceedings of the
House.
64. Rule 120 provides that the Speaker may order withdrawal of Member whose conduct in his opinion is grossly disorderly. When, the Speaker
orders withdrawal of the Member from the House, the Member has to withdraw himself forthwith and he has to absent himself during the
remainder of the day''s meeting. If an Member is ordered to withdraw on the second time in the same Session, the Speaker may direct the
Member to absent himself from the Meeting of the Assembly or any period not longer than the remainder of the Session. If such member refuses to
withdraw, the Speaker may order removal by force by the sergeant of the Assembly. In terms of Rule 121(1) the Speaker may name a Member
who disregards the authority of the Chairman or abuses the Rules of the House by persistently and wilfully obstructing the business thereof. Sub-
rule (2) of Rule 121 provides that if a Member so named by the Speaker, on a motion being made forthwith without any discussion put the
question that the named Member be suspended from the service of the House for a period not exceeding the remainder of the Session. However
the House may at any time on a motion resolve to terminate such, suspension. The powers conferred under this Rule has to be exercised by the
Speaker on the basis of motion carried out by the Legislative Assembly. If the Member so suspended refuses to withdraw, the Speaker may order
his removal from the House or prevent his entry into the House by force. Excepting as provided for in the Rules, the Speaker has to act as per the
majority decision taken by the House only and he has no independent or separate or other power to act in any given occasion. In other words,
every action of the Speaker should be strictly as provided in the rules and it has to be necessarily based on the resolution or motion carried out in
the House and not otherwise.
65. Hence, it could be seen with respect to preservation of the order, expunging of remarks, power to order withdrawal of Member, naming of a
Member and suspension of the Member are governed by the statutory Rules namely Tamil Nadu Legislative Assembly Rules. The Speakers
powers though wide and of pervasive to a certain extent in respect of a particular contingency falling under Rule 121(2) namely in respect of
suspension for a period not exceeding the remainder of the Session could be made only on a motion. In respect of the other aspects, the Speaker
has got the powers as enumerated in 118, 119 as well as 120 of the Rules.
66. We have already referred Rule 219, 220/222, 226, 227 as well as 235 of the Rules which provide for raising a question involving a breach of
privilege either of a Member or of the House or of a Committee thereof In terms of Rule 235 after the report has been made to the House a
motion is required to be moved by a Member of the Committee of Privileges designated by the Speaker and if such motion is accepted by the
House it shall take effect as if it were an order of the House. Thus for breach of privilege an exhaustive procedure has been prescribed under the
Rules with respect to time of raising, conditions in admissibility, suo motu reference by the Speaker, presenting the Report to the Assembly by the
Chairman of the Committee and moving of a motion thereof and also the procedure to be followed in moving a motion b> a Member of the
Committee.
67. In the case of conflict between the Rules made by the Legislature under Rule 210 and any provision of the Constitution, it is the Constitutional
provisions which shall prevail. Further the Rules made under Article 208 of The Constitution constitute law within the meaning of Article 21 of The
Constitution and this is settled by the pronouncement of the Apex Court in M.S.M. Sharma Vs. Sri Krishna Sinha and Others, wherein it has been
held thus:
29. Seeing that the present proceedings have been initiated on a petition under Article 32 of the Constitution and as the Petitioner may not lie
entitled, for reasons stated above, to avail himself of Article 19(1)(a) to support this application, learned advocate for the Petitioner falls back upon
Article 21 and contends that the proceedings before the Committee of Privileges threaten to deprive him of personal liberty otherwise than in
accordance with procedure established by law. The Legislative Assembly claims that under Article 194(3) it has all the powers privileges and
immunities enjoyed by the British House of Commons at the commencement of our Constitution. If it has those powers, privileges and immunities,
then it can certainly enforce the same, as the House of Commons can do. Article 194(3) confers on the Legislative Assembly those powers,
privileges and immunities and Article 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its
powers under that Article. It follows, therefore, that Article 194(3) read with the rules so framed has laid down the procedure for enforcing its
powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and
if the Petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges such deprivation will
be in accordance with procedure established by law and the Petitioner cannot complain of the breach, actual or threatened, of his Fundamental
Right under Article 21.
68. Article 208(1) provides that a House of Legislature of a State may make rules for regulating, subject to provisions of The Constitution, its
procedure and conduct of its business. The Rules if any made as prescribed by the House would be subject to the fundamental rights guaranteed
by PART-III and this is the settled legal position as has been held by the Apex Court in In re, under Article 143, In the matter of: Under Article
143 of the Constitution of India, .
69. Rules framed made under Article 208 is meant for regulating the procedure of the House and the conduct of its business. Under Rule 286 of
the Tamil Nadu Legislative Assembly Rules, residuary power conferred on the Speaker must be exercised only with regard to the procedure in the
House and the conduct of the business of the House and not beyond and the residuary power so conferred will not confer power other than what
has been conferred under the Legislative Assembly Rules, nor the Speaker could travel beyond and pass or impose or direct such things or acts
which are not provided for in the rules As already pointed out it is equally well settled that the Rules framed under Article 208(1) is subject to the
provisions of The Constitution.
70. In K. Anbazhagan and Others Vs. The Secretary, The Tamil Nadu Legislative Assembly, Madras and Others, a Full Bench of this Court held
thus:
The rules winch are made in the exercise of the power under Article 208 of the Constitution of India must be read in the light of the substantive
provision in Article 208 itself Article 208 provides-
208(1) A house of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the
conduct of its business.
Any rules made in exercise of the power under Article 208 must therefore be construed as regulating the procedure of the House and the conduct
of its business. Unsealing a member on the ground that he has incurred a disqualification with necessary consequence of his seal becoming vacant is
not a mailer of procedure. It therefore appears to us that Rule 312 when it refers to residuary power of the Speaker that power must be exercised
only with regard to the procedure in the House and the conduct of the business of the House.
71. In fact in A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another, it has been held thus:
13. In any case, it would not be possible for this Court under Article 226 to sit in judgment over the decision of the Speaker to allow the matter to
be raised, even if it may appear that a matter which is allowed to be raised was not of recent occurrence. The rules vest an absolute discretion in
the Speaker to decide whether he will permit a question of privilege to be raised or not. Even otherwise, rules framed under Article 208 of the
Constitution are essentially procedural in character, and Article 212 does not permit the validity of any proceedings in the Legislature of a State to
be called in question on the ground of an irregularity of procedure. The correctness of such decision cannot be challenged in a Court of law.
We respectfully agree with the earlier Division Bench and also hasten to add that we are bound by the dicta laid down by the earlier Full Bench of
this Court as well as that of the Apex Court.
72. Taking up the first point for consideration, we hold that the Habeas Corpus Petitions are maintainable as the legal position is well settled by the
decision of the Apex Court in the matter of In the matter of: Under Article 143 of the Constitution of India, as well as the Full Bench of this Court,
in A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another, and also from the pronouncement of the Apex Court in
Sudhirkumar v. Speaker, Andhra Pradesh Legislative Assembly case reported in 1989 (2) Scale 611.
73. In A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another, . it has been held thus:
One of the questions referred was whether, if in enforcement of its decision, the Assembly issued a general or unspeaking warrant, the High Court
was entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the Assembly. The Supreme
Court expressed an opinion that it was open for the Division Bench of the High Court to entertain and deal with the petition of the printer
challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly for its contempt and for infringement of its
privileges and to pass orders releasing him on bail, pending the disposal of the said petition. When such a petition is filed, the Supreme Court
pointed out that the conflict is not between the High Court and the Legislature, but the conflict is between the citizen and the Legislature.
In the earlier proceedings, the Supreme Court specifically upheld the maintainability of a petition under Article 226 of the Constitution by a person
who has been held guilty of contempt of the Legislature by the Legislative Assembly. The following observations in para 59, are relevant--
it is hardly necessary to emphasis that the language used by Article 226 in conferring power on the High Courts is very wide. Article 12 defines the
State as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Article 226(1) can, in a proper
case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be
competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is
by an order of the House. Article 226(1) read by itself does not seem to permit such a plea to be raised. Article 32 which deals with the power of
this Court, puts the matter on a still higher pedestal: the right to move this Court by appropriate proceedings for the enforcement of the fundamental
rights is itself a guaranteed fundamental right, and so, what we have said about Article 226(1) is still more true about Article 32(1).
9. It is, therefore, settled law for more than twenty years now. that where a Petitioner approaches a court contending that as a result of a committal
to civil prison by the Legislature for breach of privilege his fundamental right under Article 21 has been violated, such a petition cannot be thrown
out at the very threshold merely on the ground that the decision of a House of Legislature on an issue of privilege is being challenged. There is
nothing in the Constitution which disabled a citizen who complains of a violation of his fundamental right under Article 21 of the Constitution from
filing a petition under Article 226 of the Constitution. The entertaining of an appeal against an order dismissing such a petition need not, therefore,
be taken as an affront either to the Speaker of the Legislative Assembly or the Legislative Assembly itself.
74. In P. Sudhirkumar v. Speaker, A.P. Legislative Assembly reported in 1989 (1) Scale 611, their Lordships of the Apex Court held thus:
There, dealing with the question challenging the violation of fundamental rights, this Court has made it categorically clear that it is the duty of this
Court to examine whether there has been violation by the conduct or any other act including any of the authorities including the Legislature
infringing the fundamental rights. This Court put the matter beyond doubt by observing at page 446 of the report as follows:
There is another aspect of this matter which must also be mentioned; whether or not there is distinct and rigid separation of powers under the
Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the
constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by
Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and
decide whether the law passed by the Legislature is valid or not. Just as the legislatures are conferred legislative authority and their functions are
normally confined to legislative functions, and of the functions and authority, of the executive lie within the domain of executive authority so the
jurisdiction and authority of the judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the
Court, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been
contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of
this country; and so we feel no difficulty in holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the
Judicature of this Country. That is why we must overrule Mr. Seervais argument that the question of determining the nature, scope and effect of the
powers of the House cannot be said to lie exclusively within the jurisdiction of this Court.
6. This Court further observed that whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt
that, the Judicature in this Country has been entrusted the task of construing the provisions of the Constitution and safeguarding the fundamental
rights of the citizens. This Court observed at page 454 of the said decision as follows:
Article 226:
This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by PART III
and for any other purpose. It is hardly necessary to emphasis that the language used by Article 226 in conferring power on the High Courts is very
wide. Article 12 defines the ""State"" as including the Legislature of such State, and so, prima facies, the power conferred on the High Court under
Article 226(1) can in a proper case be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of
habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the
application because the detention is by an order of the House. Article 226(1) read by itself does not seem to permit such a plea to be raised.
Article 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate
proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so. what we have said about Article 226(1)
is still more true about Article 32(1).
7. Whilst we are considering this aspect of the matter, it is relevant to emphasise that the conflict which has arisen between the High Court and the
House, is strictly speaking, not a conflict between the High Court and the House as such, but between the House and a citizen of this country.
Keshav Singh claims certain fundamental rights which are guaranteed by the Constitution and he seeks to move the High Court under Article 226
on the ground that his fundamental rights have been contravened illegally. The High Court purporting to exercise its power under Article 226(1),
seeks to examine the merits of the claims made by Keshav Singh and issues an interim order. It is this interim order which has led to the present
unfortunate controversy. No doubt, by virtue of the resolution passed by the House requiring the Judges to appear before the Bar of the House to
explain their conduct, the controversy has developed into one between the High Court and the House; but it is because the High Court in the
discharge of its duties as such Court intervened to inquire into the allegations made by a citizen that the Judges have been compelled to enter the
arena. Basically and fundamentally, the controversy is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly, that is why
in dealing with the question about the extent of the powers of the House in dealing with cases of contempt committed outside its four walls the
provisions of Article 226 and Article 32 assume significance. We have already pointed out that in Pandit Sharma (1959) Supp. 1 SCR 806 this
Court has held that Article 21 applies where powers are exercised by the legislature under the latter part of Article 194(3). If a citizen moves the
High Court on the ground that his fundamental right under Article 21 has been contravened, the High Court would be entitled to examine his claim,
and that itself would introduce some limitation on the extent of the powers claimed by the House in the present proceedings.
8. This is beyond doubt as appears from the observations of this Court at page 493 of the reports.
If a citizen moves this Court and complains that his fundamental right under Article 21 had teen contravened, it would plainly be the duty of this
Court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of the citizen has been
taken away according to the procedure established by law. In fact, this question was actually considered by this Court in the case of Pandit
Sharma (1959) Supp 1 SCR 806. It is true that the answer was made in favour of the Legislature, but that is wholly immaterial for the purpose of
the present discussion. If in a given case, the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law,
but for capricious or mala fide reasons, this Court will have to examine the validity of the said contention, and it would be no answer in such a case
to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. In our
opinion therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Article 32 of the construction of the latter part
of Article 194(3) is decisively against the view that a power or privilege can be claimed by the House though it may be inconsistent with Article 21.
75. In the light of the said binding pronouncement we have no hesitation to hold that writ of Habeas Corpus are maintainable and depending on the
merits of the case writ could very well be issued.
76. Taking up the next contention as to the power of judicial review under Article 226 of The Constitution in respect of the impugned proceedings,
while relying upon the above two pronouncements of the Apex Court as well as the Full Bench of this Court we hold that the power of judicial
review is very much available in respect of the impugned proceedings. In In re, under Article 143, In the matter of: Under Article 143 of the
Constitution of India, the Constitutional Bench of the Supreme Court held thus:
(59) Let us first take Article 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it
exercises jurisdiction, to issue to am person or authority, including in appropriate cases any Government, within those territories directions, orders
or writs, including writs in the nature of habeas corpus mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any
of the rights conferred by PART III and for any other purpose. It is hardly necessary to emphasis that the language used by Article 226 in
conferring power on the High Courts is very wide Article 12 defines the ""State"" as including the Legislature of such State, and so, prima facies, the
power conferred on the High Court under Article 226(1) can in a proper case be exercised even against the Legislature. If an application is made
to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High
Court has no jurisdiction to entertain the application because the detention is by an order of the House. Article 226(1) read by itself does not seem
to permit such a plea to be raised. Article 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move
this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we have
said about Article 226(1) is still more true about Article 32(1).
77. In S. Balasubramanian v. State of Tamil Nadu and Ors. reported in AIR 1995 Mad 325 (F.B) D. RAJU, J., as he then was, speaking for the
Bench after analysing the entire case law, held thus:
20. On a careful consideration of the submissions of the learned Counsel appearing on either side in the light of the principles laid down in the
above decisions, we propose to take up first for consideration the question as to the scope and extent of interference by Courts exercising
jurisdiction under Article 226 of the Constitution of India in matters of the nature concerning the legalist, propriety and constitutionality of the action
taken in the purported exercise of the privileges of the House of Legislature engrafted in Article 194(3) of the Constitution of India. It is by now
well settled and there could be no serious controversy over the position so well reiterated by more than one decision of the Supreme Court that the
constitution reigns supreme and the rights, powers and privileges of the various limbs of the State are subject to the provisions contained in the
Constitution, the basic and fundamental law which provides for the governance of the State. It is equally well settled that the final authority to state
the meaning of the constitution and to settle constitutional controversies exclusively belongs to the Supreme Court and the High Courts which are
constituted as the sentinels of both the Constitution and the democracy as well as the fundamental rights of the citizen, inclusive of their life, liberty
and freedom. That apart, the legislatures in India have to function within the limits prescribed by the material and relevant provisions of the
Constitution of India and adjudication of any dispute as to whether legislative authority has been exceeded or fundamental rights have been
contravened is solely and exclusively left to the Judicature of this Country and, therefore, inevitably the decision about he construction of Article
194(3) of the Constitution, the privileges, powers and immunities claimed or action taken in vindication thereof cannot be said to be in the exclusive
domain or of the sole arbitral or absolute discretion of the House of legislature. Of course, the Courts having regard to their own self-imposed
limits would honour the sentiments particularly keeping in view the plenary powers of the Legislature within the constitutionally permitted limits so
long as such action of the. Legislature does not result in the negation of the fundamental rights secured under the Constitution or the life, liberty
freedom and dignity of the citizen. The all powerful postures or claims of sky-high powers or suzerain claims of sovereignty or over-lordism are to
be brushed aside as nothing but fossil of the tyrannical and anarchical past and not in keep tune with the basic and fundamental principle of rule of
law, the bedrock of the Constitution or the democratic ideals which are the avowed object of the Republic ushered in by the Constitution of India.
The contentions to the contrary have no basis or recognition of law and do not have the merit of acceptance by courts in this Country.
78. In D. Murugesan Vs. The Hon''ble Speaker (Thiru Sedapatti R. Muthiah) Tamil Nadu Legislative Assembly, another Division Bench of this
Court held thus:
8. We should, at the very outset remind ourselves and all others that this democratic republic is ruled by the ""rule of law"" as contrasted to ""rule of
men"" This rule of law has its roots in our Constitution, which, we, the People of India, have enacted. adopted and given to ourselves. This
Constitution aims at establishing a disciplined democratic social order, where justice, social, economic and political will inform all its institutions.
This Constitution also confers, clearly and specifically, the power of judicial review and hence it is the privilege of the judiciary to say what the
Constitution is. It is now well settled that the Constitution is what the judiciary says it is. In spite of it, it is the Constitution and not the judiciary or
any one else that is supreme. This rule of law is precisely and clearly stated by the Supreme Court in I. Manilal Singh Vs. Dr. H. Borobabu Singh
and another, as under:
It is our constitutional duty which requires us to make this order, to uphold the majesty of law and justify the confidence of the people, that no one
in this country is above the law and governance is not of men but of the ""rule of law"". It is unfortunate that this action has to be taken against a
person who happens to be the Speaker of a Legislative Assembly, but that does not permit us to apply the law differently to him when he has
wilfully and contumaciously driven the court to this course. WE must remind ourselves that the ""rule of law"" permits no one to claim to be above
the law and, its means--''be you ever so high the law is above you''. It was said long back: ''to seek to be wiser than the laws, is forbidden by the
law.
There is, therefore, no scope of any confrontation between various institutions working as per this constitutional discipline. The judiciary even while
exercising its powers of judicial review does not do so in a spirit of confrontation nor does it, while so doing, assert its superiority over others. It
only performs its constitutional obligation with humility and the keenness to strengthen the rule of law. In its relationship with the legislature, the
judiciary has always shown its deep-rooted respect to its authority recognising the basic truth that it consists of elected representatives of our
people and is engaged in the establishment of a social order prescribed by the Constitution. Any one going deeper into the judicial working will
immediately learn that the judiciary has by and large, upheld the validity of laws enacted by the legislature and has engaged itself, during most of its
time, in securing proper implementation of those laws. This is however not to say that laws have not been struck down as ultra vires to the
Constitution. That has been done only to uphold the Constitution and strengthen the rule of law and in the belief that it will eventually benefit and
strengthen the legislature itself. We, therefore, wish to emphasize that those who talk of their superiority and consequential confrontation with the
judiciary do not display their respect for the constitutionally mandated discipline. They need to undertake introspection in wider national interest.
9. Speaking in terms of these petitions it is considered proper to emphasize that this Court while issuing notice to the Respondents did not do so in
a spirit of confrontation or to challenge their authority and jurisdiction. As long as they are within their constitutional authority, their superiority is
bound to be recognised by this Court. In this connection reference to a Full Bench decision of this Court in A.M. Paulraj Vs. The Speaker, Tamil
Nadu Legislative Assembly, Madras and Another, is necessary as somewhat similar statements were expressed therein. It would have served not
only the cause of justice but the dignity of Legislature itself if the Respondents had accepted the notice and made available to this Court their point
of view for consideration. We are, however, under oath of our office to dispense justice without fear and favour and hence we must proceed to
discharge our constitutional obligation in accordance with law.
We are in respectful agreement with the said pronouncement.
79. Hence following the pronouncements of the Apex Court in (i) In the matter of: Under Article 143 of the Constitution of India, (ii) M.S.M.
Sharma Vs. Sri Krishna Sinha and Others, and the pronouncement of the Full Bench of this Court in (iii) A.M. Paulraj v. Speaker, T.N. Legislative
Assembly reported in AIR 1986 Mad. 248 (iv) S. Balasubramanian v. State of Tamil Nadu reported in AIR 1995 Mad. 325, and the Division
Bench of this Court in (v) D. Murugesan Vs. The Hon''ble Speaker (Thiru Sedapatti R. Muthiah) Tamil Nadu Legislative Assembly, we hold that
the power of judicial review under Article 226 could very well be moved and available and it is maintainable and this Court has every jurisdiction
to exercise the powers of judicial review in respect of the impugned proceedings.
80. It is not the contention of the learned Additional Advocate General that writ of habeas corpus is not maintainable and that the power of judicial
review is not available. The learned Senior Counsel who have been appointed as Amicus Curiae by the earlier Division Bench also rightly pointed
out submitted without reservation that the power of judicial review is available and that writ of habeas corpus petitions are maintainable challenging
the impugned proceedings. Hence it is not necessary to dwell on this point any further We hold therefore that the writ petitions are maintainable
and that the power of judicial review is open to the Petitioner and this Court under Article 226 could exercise the power of judicial review in
respect of the impugned proceedings.
81. The contention as to the rule of presumption applicable to official publication of the Tamil Nadu Legislative Assembly Debates, it is to be
pointed out that in terms of Section 74 of the Indian Evidence Act, 1872 the documents forming the acts or records of the acts of Public offices.
Legislatures, Judicial and Executives of any part of India are the public documents.
82. In terms of Section 78 of the Evidence Act the proceedings of the Legislatures, the journals of the said body or publications or abstract or
copies purporting to be printed by the order of the Government concerned could be proved by production of a copy of such proceedings certified
by the Legal Keeper thereof or by a printed book purporting to be published by authority of such body. The reports of the proceedings of State
Legislative Assembly are admissible as evidence u/s 78. Rule of Presumption provided in Section 79 apply.
83. Further in this case, there is no dispute as to the Debate or the details reported, nor any one had chosen to challenge the Legislative Assembly
discussions as published under Rule 283 of the Tamil Nadu State Legislative Assembly Rules. Apart from the said legal position, it has to be
pointed out that the detenu had not chosen to file any affidavit till date even after his being enlarged on bail and he had not come forward suggesting
a different version of the incident. Hence this Court has to accept the contents of the official report of the Tamil Nadu State Legislative Assembly
Debates published by the Tamil Nadu Legislative Assembly Secretariat as true reproduction of the Debates and only on that basis we have to
proceed further in considering the merits of the contention. Hence this point is answered in the affirmative.
84. Nextly, it would be proper to take up the point Nos. 3, 4, 5, 6, 7, 8 and 9 together as these contentions have been advanced in the first
Habeas Corpus Petition where the order of arrests and commitments dated 22nd and 23rd March. 1999 are being challenged. The above points
are required to be answered. Incidentally it is being contended by Respondent No. 1 that the said first order of arrest and commitment dated 22nd
March, 1999 either merges with the second order of commitment dated 23rd March, 1999 or stands superseded and therefore it is contended that
the first Habeas Corpus Petition has become infructuous. We are not inclined to accept this argument advanced by the learned Additional
Advocate General that the first Habeas Corpus Petition has become infructuous. Nor it could be held that the first order merges with the second
order as but for the first order of arrest and commitment the Petitioner would not have been arrested on the said date viz., 22.3.1999 and
committed to prison for a period of one week. Hence the validity of the first order of arrest and commitment to prison is required to be examined
by us. It may be that the first order on the issue of second warrant of arrest and incarceration had come to an end at the end of 23rd March, 1999.
However, we hasten to add that the first Habeas Corpus Petition has not become infructuous as we have to examine as to whether the first arrest
and incarceration ordered for one week is with or without jurisdiction or in violation of Article 14 and 21 or in violation of any other Articles of
PART-III of The Constitution and or whether the second Respondent has the authority or power or jurisdiction to issue or impose or sentence by
issuing the first set of orders.
85. It becomes necessary to consider whether there are due observance of law within the meaning of Articles 14 and 21 of The Constitution of
India at the first instance in issuing order of arrest and committing the detenu to prison by the Hon''ble Speaker of the Tamil Nadu Legislative
Assembly. The first set of the impugned order which is challenged in the first habeas corpus petition, on a reading of the same would show that it is
neither an interim custody, nor it is an action to apprehend the detenu as a prelude to the proceedings by the Legislature for alleged misconduct on
the part of the detenu, nor it was made or ordered or issued based upon the resolution of the Legislative Assembly. On the contrary a reading of
the said warrant of arrest and committal would show as if the same had been ordered by the Hon''ble Speaker for a specified period of one week
and it is a committal to prison specifying the period as one week is a rank sentence of incarceration. In any view, it is a sentence as it is not a
remand simpliciter, as it is a clear incarceration for a period of one week. Nor any other meaning could be attributed. Excepting the later
suggestion by the first Respondent, there is nothing to show ex facie on the face of the impugned order that it is by way of interim custody or by
way of remand pending imposition of a sentence after enquiry. On the contrary, it is clear that the Hon''ble Speaker had committed the detenu to
prison for one week by way of sentence and the contention to the contra cannot be entertained at all as it is too puerile. The orders impugned have
to be read as a whole as they are interconnected. The warrant of arrest was issued and prima facie it is a committal of the detenu by way of
sentence of imprisonment by the Speaker for one week. Admittedly for such committal to prison either by way of punishment or by way of interim
custody or by way of arrest or remand there is neither a resolution to the said effect by the Legislative Assembly nor it could be claimed that the
Assembly had authorised the Speaker to pass such a sentence on the detenu at the first instance or at any point of time. Nor there could even be a
suggestion of ratification of the said action by the Legislative Assembly till date nor such a ratification of sentence is permissible in law.
86. Let us first examine the power or authority or jurisdiction of the Legislative Assembly and whether such resolution would be interfered under
Article 226 as violative of Article 21. In that respect it would be but essential to refer to the earlier pronouncements wherein the power of the
Legislative Assembly to decide its own privilege and immunity and the procedure to be followed by it have been considered. In M.S.M. Sharma
Vs. Sri Krishna Sinha and Others, , it has been held thus:
29. Seeing that the present proceedings have been initiated on a petition under Article 32 of the Constitution and as the Petitioner may not be
entitled, for reasons stated above, to avail himself of Article 19(1)(a) to support this application, learned advocate for the Petitioner falls back upon
Article 21 and contends that the proceedings before the Committee of Privileges threaten to deprive him of personal liberty otherwise than in
accordance with procedure established by law. The Legislative Assembly claims that under Article 194(3) it has all the powers privileges and
immunities enjoyed by the British House of Commons at the commencement of our Constitution. If it has those powers, privileges and immunities,
then it can certainly enforce the same, as the House of Commons can do Article 194(3) confers on the Legislative Assembly those powers,
privileges and immunities and Article 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its
powers under that Article. It follows, therefore, that Article 194(3) read with the rules so framed has laid down the procedure for enforcing its
powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and
if the Petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges such deprivation will
be in accordance with procedure established by law and the Petitioner cannot complain of the breach, actual or threatened, of his Fundamental
Right under Article 21.
87. In Pandit M.S.M. Sharma Vs. Dr. Shree Krishna Sinha and Others, , further it has been held thus:
10. It now remains to consider the other subsidiary questions raised on behalf of the Petitioner. It was contended that the procedure adopted
inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that
according to the previous decision of this Court, the Petitioner has not the fundamental right claimed by him. He is, therefore, out of Court.
Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid
down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf
of the Petitioner. No court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to
conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the Petitioner is that it is yet premature to
consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that
the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its
privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it
may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for
interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of
jurisdiction and improper or irregular exercise of jurisdiction. Mere non compliance with rules of procedure cannot be a ground for issuing a writ
under Article 32 of the Constitution: Vide Janardan Reddy and Others Vs. The State of Hyderabad and Others, .
88. Following the above, a Full Bench of this Court in A.M. Paulraj v. Speaker, Tamil Nadu Legislative Assembly reported in 1986 Writ Law
Reporter page 29, held thus:
25. The only other argument which requires to be dealt with is with reference to the violation of the right of the Petitioner under Article 21 of the
Constitution of India. This argument is the second limb of the first contention. It is urged that the Petitioner is being deprived of his liberty even
without hearing him in as much as he has been punished merely on the basis of a report of the Privileges Committee, the argument is that the
Petitioner should have been heard before the Assembly accepted the report of the Privileges Committee, and modified the proposed punishment.
As already pointed out, Rules 245 to 256 made under Article 208(1) of the Constitution of India deals with the Committee of Privileges. Rule 255
reads as follows:
255(a) The report of the Committee of Privileges shall be presented to the Assembly by the Chairman of the Committee or any member of the
Committee so authorised.
(b) As soon as may be, after the report has been presented a motion in the name of the Chairman of the Committee or any member of the
Committee, may be made that the report be taken into consideration.
(c) Any member may give notice of amendment to the motion for consideration of the report referred to above in such form as may be considered
appropriate by the Speaker:
Provided that an amendment maybe moved that the question be recommitted to the Committee either without limitation or with reference to any
particular matter.
(d) After the motion for consideration of the report has been carried, the Chairman or any Member of the Committee or any other member as the
case may be, may move that the Assembly agrees or disagrees it agrees with amendments, with the recommendations contained in the report.
Under Clause (c) of Rule 255, any member can be given notice of amendment to the motion for consideration of the report in such form as may be
considered appropriate by the Speaker and under Clause (d) after the motion for consideration of the report is carried, the Chairman or any
member of the Committee or any other member as the case may be, may, move that the Assembly agrees, or disagrees or agrees with
amendments with the recommendations contained in the report. The proceedings show that the Leader of the Assembly moved a resolution on July
1, 1985 that after accepting the report of the Privileges Committee of the Seventh Legislative Assembly on the matter relating to the breach of
privileges of the Assembly by the monthly magazine ''Vaniga Ottrumai'' which was given to the Seventh Legislative Assembly on March 28, 1984,
the Assembly decides that the editor and Publisher Thiru Paulraj should be arrested and detained in the Central Prison in Madras to undergo
simple imprisonment for two weeks for breach of privileges of the House. The proceedings show that Thiru A. Rahman Khan had moved an
amendment, but that amendment was deemed to be withdrawn. It is not known what the amendment was. But the proceedings show that the
resolution moved by the Leader of the House Assembly was passed unanimously. Now, it is difficult for us to see how the decision of the
Assembly could be challenged on the ground that the Petitioner was not heard. The rules framed under Article 208(1) of the Constitution of India
do not provide for any such hearing. It is true that the Privileges Committee had proposed a punishment of simple imprisonment for one week but
the Legislative Assembly in the exercise of its power under Article 194(3) was entitled to take a decision with regard to the term of imprisonment
to be awarded to the Petitioner. The decision of the Assembly cannot be challenged on the ground that there was any irregularity in the procedure.
Article 212 of the Constitution of India creates an express bar against a challenge to any proceedings of the Legislature on the ground of alleged
irregularity of procedure. Article 212(1) reads as follows:
212(1). The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of
procedure.
In so far as Article 21 is concerned where a person is punished in the exercise of powers under Article 194(3) in accordance with the Rules made
by the Legislature under Article 208(1), such punishment resulting in deprivation of ''personal liberty must be held to be according to procedure
established by law'' as contemplated by Article 21.
89. The above view had been reiterated by a later Bench of this Court in K. Anbazhagan and Others Vs. The Secretary, The Tamil Nadu
Legislative Assembly, Madras and Others, wherein it has been held thus:
98. It was then contended by Mr. Ganapathy, Mr. Parasaran and Mr. Raju that the resolution of expulsion was passed without the expelled
members being given any opportunity of putting forth their case before the House. The procedure therefore was illegal and being arbitrary the
resolution of expulsion is violative of the provisions of Articles 14 and 21 of the Constitution of India. A provision which becomes immediately
relevant in the context of this submission is the one in Article 212 of the Constitution of India Article 212 reads as follows:
212(1) The Validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of
procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this constitution for regulating procedure or the
conduct of business, or for maintaining order, in Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of
those powers.
Now it appears that Article 212(1) creates a complete bar to go into the validity of the proceedings of the Legislature. A distinction was sought to
be made between illegality and irregularity and the contention raised was that Article 212(1) refers merely to irregularity of procedure and therefore
in the present case in which the Petitioners who were not even in the House and as a matter of fact they were all confined to jails, were not given
any opportunity to have their say in the matter of expulsion, the procedure adopted by the house must be treated as not irregular but illegal. Now a
decision taken without following the required procedure would in a sense be the result of irregularity in the matter of procedure. There is a well
established distinction between ''illegality'' and ''irregularity''. ''Irregularity'' is not synonymous with ''illegality''. The term ''illegality'' in its common
acceptance, signifies that which is contrary to the principles of law as distinguished from rules of procedure. The word ''illegality'' is synonymous
with ''Unlawfully''. ''An irregularity'' is a want of adherence to some prescribed rule or mode of proceeding, and consists in omitting to do
something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner."" ''Illegality'', on the
other hand, is properly predicable of radical defects only, and signifies that which is contrary to the principles of law as distinguished from mere
rules of procedure (see ''Words and Phrases'' Permanent Edn. Vol.20, PP 57, 58, 59). The whole purpose of Article 212(1) appear to us to shut
out any enquiry 111 the validity of a proceeding in the Assembly on the ground of a defect in the procedure. Absence of opportunity to the person
who is likely to be affected by the effect of the decision of the Assembly is undoubtedly a decision which may suffer from irregularity in procedure.
The constitutional mandate cannot however be ignored and the Constitution makers clearly intended that the Legislature would not be answerable
to a court in the matter of its proceedings on the ground of validity of procedure.
90. Therefore it follows, it is the legislative and its decision or resolution is placed on a high pedestal and the bar under Article 212 may exclude the
jurisdiction of this Court and that too so long as it is in conformity with the procedure and not beyond that. The Speaker of the Legislative
Assembly in respect of his orders or decision not being based on a resolution of the House will not deserve same treatment or same protection nor
the constitutional bar will operate merely because during individual address or discussion members have expressed their opinions one way or other.
Such opinion or expressions be it majority cannot be placed on par with a resolution of the House. Hence the action of the Speaker had to be
tested like any other order by a State authority.
91. On a conspectus consideration of the above binding pronouncements and well accepted legal position, and in the absence of any conferment of
specific power on the Speaker of the Legislative Assembly, by any constitutional provision or even a statutory provision, we are of the considered
view that the first set of the impugned order which is impugned in the first Habeas Corpus Petition ordering arrest and committing the detenu to
Central Prison for specified period which is admittedly not based upon a resolution of the Legislative Assembly is not only illegal, but also without
jurisdiction and it offends Articles 14 and 21 of the Constitution. We make it clear that the Hon''ble Speaker of the Legislative Assembly has
neither an independent power or authority or jurisdiction to order arrest or commit a person to prison in the absence of a specific resolution by the
House.
92. Even the procedure of the House as seen from the Rules the Speaker has to place such matters before the Assembly, which after discussions
and after following the procedure if any under the Rules takes a decision by way of resolution and only thereafter the Hon''ble Speaker has the
power to sentence or commit a person to prison. It may be that the Speaker has the power to issue summons for appearance or to compel the
attendance of some one who had violated the privilege or committed contempt of the House which are incidental powers and they are available in
furtherance of the powers conferred on the Assembly. De hors the same, the Speaker has no such authority or power and a reading of the
Assembly Rules also do not indicate conferment of such power on the Speaker. The penalty or sentence could be imposed for breach of privilege
or contempt of the House if a resolution is duly carried out on the floor of the House on the motion either moved by a Member of the House or by
the Committee, as the case may be as already pointed out while referring to the Rules and not otherwise. Any other procedure is impermissible in
law and such an action, is blatantly illegal, without authoirty or jurisdiction or power nor such an action could even be ratified at all.
93. Incidentally, the Speaker of the Legislative Assembly who presides over and transacting business in the Assembly has the authority to compel
production of any one before the House and take action under Rule 225 of the Legislative Assembly Rules by placing the matter before the
Legislative Assembly and it is for the House to take a decision. Hence, in the light of the above discussions, we are clear in our mind that the
Hon''ble Speaker has no independent power or authority or even inherent or incidental power apart from the said rules to order arrest, much less
by way of interim arrest or order incarceration for a week or detention either as a punishment or sentence or even interim detention or
incarceration or even as a step towards the same.
94. We hold that the first set of orders passed by the Hon''ble Speaker of the Legislative Assembly including the arrest warrant issued not being
supported by a resolution, is illegal and without jurisdiction as it is firstly established that it is the Hon''ble Speaker who alone had ordered arrest,
committal and incarceration for a week and not the Legislative Assembly. In this respect we are bound by the earlier decisions of this Court.
95. We refer to the following passage of the earlier Division Bench in Murugesan v. Speaker, Tamil Nadu Legislative Assembly, cited supra, which
still holds good:
Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far
as the courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Ande Paul v. Attorney General of
Trinidad AIR 1936 PC 141. Said Lord Atkin, ""Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even
though out-spoken comments of ordinary men"". We ought never to forget that the power to punish for contempt large as it is, must always be
exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain
the dignity or status of the Court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status
of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their
approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the
Judicature is equally true of the Legislatures. Though these sentiments were expressed in relation to the punishment for contempt, they are equally
relevant in relation to the punishment for breach of privileges. Frequent or indiscriminate use of the power in anger or irritation would not sustain the
dignity or the status of the House. The dignity and the status of the House, is without doubt, sacrosanct to our democracy.
96. Even assuming that the Legislative Assembly has got the power to issue summons or compel attendance or bring some one by issuing a
warrant of arrest, his detention in a prison without a judicial remand or without imposition of a punishment or sentence supported by a resolution or
based on the resolution of the Legislative Assembly would be an infraction of Article 21. In this respect it is useful to refer to Erskine May''s
Treatise on The Law, Privileges. Proceedings and Usage of Parliament (20th Edition), which is being relied upon by either side and in particular
pages 138, 168 and 169, which read thus:
PUNISHMENTS INFLICTED ON MEMBERS
In the case of contempts committed against the House of Commons by Members two other penalties are available, viz., suspension from the
service of the House and expulsion. In some cases expulsion has been inflicted in addition to committal.
xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
PROCDINGS IN CASE OF CONTEMPT Where the contempt is committed in the actual view of either House, as for example, where a witness
prevaricates, gives false evidence or refuses to answer, the House proceeds at once, without hearing the offender, unless by way of apology or to
manifest his contrition, to punish him for his contempt. But, save some times where a contempt committed in the actual view of the committee is
reported by the committee, neither House will punish a contempt committed out of such House or not in its actual view without hearing the party
implicated in his defence.
Both Houses of Parliament have power to send for persons to answer charges of breach of privilege or contempts without specifying in the order
for their attendance the object or the causes whereon their attendance is required. They have also power to send for supposed offenders in
custody and all civil officers and magistrates, and indeed all subjects of the Queen, are bound to assist, when required, in executing their warrants
and orders.
97. The larger issue advanced in respect of the second impugned action which has been challenged in the second Habeas Corpus Petition is
violation of Article 21 of The Constitution. As already pointed out, there is no difficulty in holding that the Habeas Corpus Petition is maintainable
and an aggrieved party could invoke the jurisdiction of this Court under Article 226 and this Court has got the authority or jurisdiction to quash as
a centennial to enforce the fundamental rights, if procedure adopted is irregular or illegal or the proceedings have to be set aside on any other valid
ground. It is not necessary to refer to the decision of the Apex Court in detail once again M.S.M. Sharma Vs. Sri Krishna Sinha and Others, or the
Full Bench judgment of this Court in D. Murugesan Vs. The Hon''ble Speaker (Thiru Sedapatti R. Muthiah) Tamil Nadu Legislative Assembly, or
the Full Bench judgment of this Court in S. Balasubramanian Vs. State of Tamil Nadu and Others, .
98. In Shri Kihota Hollohon Vs. Mr. Zachilhu and others, Five Judges Bench of the Apex Court while reiterating the powers of judicial review of
the Courts and the constitutionality to assume jurisdiction under Article 32 or 226 held thus:
144. In reply, it was urged that the finality clause in sub-paragraph (1) of Paragraph 6 does not exclude the jurisdiction of the High Courts under
Articles 226 and 227 and of this Court under Article 136. Deeming provision in sub-paragraph (2) of Paragraph 6, it was urged, has the only
effect of making it a ''proceedings in Parliament'' or ''proceedings in the Legislature of a State'' to bring it within the ambit of Clause (1) of Article
122 or 212 but not within Clause (2) of these articles. The expression ''proceedings in Parliament'' and ''proceedings in the Legislature of a State''
are used only in Clause (1) of Articles 122 of 212 but not in Clause (2) of either of these articles, on account of which the scope of the fiction
cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended
only to ''irregularity of procedure'' but not to illegality as held in In the matter of: Under Article 143 of the Constitution of India, . In respect of
Paragraph 7, the reply is that the expression ''no court'' therein must be similarly construed to refer only to the courts of ordinary jurisdiction but not
the extraordinary jurisdiction of the High Courts under Articles 226 and 227 and the plenary jurisdiction of Supreme Court under Article 136. It
was also argued that the Speaker/Chairman while deciding the question of disqualification of a member under Paragraph 6 exercises a judicial
function of the State which otherwise would be vested in the courts and, therefore, in this capacity he acts as ''Tribunal'' amenable to the
jurisdiction under Articles 136, 226 and 227 of the Constitution. Shri Sibal also contended that the bar in paragraph 7 operates only at the interim
stage, like other election disputes, and not after the final decision under Paragraph 6.
145. The finality clause in sub paragraph (1) of Paragraph 6 which says that the decision of the Chairman or, as the case may be, the Speaker of
such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the
High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This
is apart from the decision being vulnerable on the ground of nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extraordinary
jurisdiction of the High Courts and the plenary jurisdiction of this Court. The legal fiction in sub paragraph (2) of Paragraph 6 can only bring the
proceedings under sub paragraph (1) thereto within the ambit of Clause (1) of Article 122 or Clause (1) of Article 212, as the case may be, since
the expressions used in sub paragraph (2) of Paragraph 6 of the Tenth Schedule are ''shall be deemed to be proceedings in Parliament'' or
''proceedings in the Legislature of a State'', and such expressions find place both in Articles 122 and 212 only in Clause (1) and not Clause (2)
thereof. The ambit of the legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an
extended meaning to include therein something in addition. It is also settled that a matter falling within the ambit of Clause (1) of either of these two
articles is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of ''irregularity of
procedure''.
99. That apart, a Full Bench of this Court in S. Balasubramanian v. State of Tamil Nadu etc., and 2 Ors. referred to supra while affirming the
earlier view taken in A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another, held that Article 21 of The
Constitution is not excluded and there cannot be a provision depriving a person''s life or personal liberty without following the minimum procedure
or a modicum of procedure. In the present case with respect to the second impugned action as rightly pointed out by the counsel for the first
Respondent on the floor of the Assembly there had been a discussion and a motion was tabled and it had been carried out, based upon which the
second set of impugned proceedings had been issued. Though it is vehemently contended that such a resolution relates to a criminal offence
punishable under the Indian Penal Code and it is only the criminal courts which are conferred with the power under criminal procedure alone could
impose such a punishment or sentence, we are of the considered view that the Legislative Assembly on whose floor the unfortunate incident
occurred has the authority to take action. The Legislative Assembly in our considered view is the authority with respect to the resolution passed by
it and such a resolution is a ""law"" falling within the scope of Article 21 of The Constitution and therefore it is a valid procedure by which the detenu
had been detained by way of sentence in prison for his alleged misconduct and breach of privilege of the House. It is true there is some reference
to criminal misconduct. But it is only an expression referring to conduct of the detenu and it is not for a criminal offence and the resolution has been
passed imposing fifteen days incarceration for breach of privilege or contempt of the House alone and not for the criminal offence of assault etc.,
Even Now. if the House decides, it could very well set the criminal action in motion.
100. The resolution of the Legislative Assembly as seen from the Official Report of the Legislative Assembly Debates, published, for violation of
the privilege of the House, the Legislative Assembly had unanimously resolved and with respect to such unanimous resolution in the absence of any
irregularity or any illegality or violation of the procedure prescribed, this Court would not be justified in interfering and this Court will decline to
exercise the power of judicial review under Article 226 in such matters. In respect of such sentence it is the Assembly which has got the authority
or power or privilege to reconsider or modify or recall by its resolution and it enjoys the immunity to the extent indicated above. The detention of
the Petitioner based upon the second impugned communication is not liable to be interfered either as violative of Article 21 or violative of Article
14 of The Constitution. Further, it is based upon the unanimous motion carried out by the Assembly. The detenu had also not chosen to challenge
the motion carried out with respect to the suspension of the detenu from the proceedings of the House and rightly too.
101. As extracted already, based upon a resolution dated 23.3.1999 of the Assembly, the detenu had been sentenced to undergo imprisonment
for fifteen days. Hence the above minutes of the recordings as reported and as already pointed out and the detenu not having controverted and as
the rule of presumption applies and being a resolution in respect of matters which took place on the floor of the Assembly, the question of following
principles of natural justice recedes to ground and it cannot also be invoked, nor it is available. In the circumstances, this Court holds that with
respect to the resolution dated 23.3.1999 and the consequential orders of committal and imprisonment ordered by the Hon''ble Speaker of the
Legislative Assembly is not liable to be interfered, nor any case has been made out for interference, nor there is any violation of Articles 14 or 21
of The Constitution and all the contentions advanced in this respect has to necessarily fail.
102. The suspension of the detenu from the Assembly proceedings is not a punishment, but it only debars or exclude him from taking part in any of
the proceedings during the period of suspension. The punishment imposed by the resolution of the Assembly will not amount to double punishment
as sought to be contended and such a contention cannot be sustained at all. It is for the breach of privilege and/or contempt of the House of which
the detenu is a Member and as seen from the resolution passed by majority of the Members present in the Assembly. The contention that the
Legislature has no authority to impose the punishment after having suspended him also cannot be sustained.
103. The warrant of commitment for imprisonment and warrant of arrest issued by the Hon''ble Speaker of the Tamil Nadu Legislative Assembly
on 23.3.1999 and 24.3.1999 respectively are valid and not liable to be interfered, nor it is violative of Articles 14 or 21 of The Constitution and
consequently HCP. No. 433 of 1999 deserves to be dismissed with costs.
104. Mr. B. Kumar, learned senior counsel contended that the resolution imposing sentence will not survive as the Assembly had been prorogued
and the resolution also lapsed. We are unable to persuade ourselves to agree with the said contention as in the light of the law laid down by this
Court, the resolution will not lapse. Further, the interim order already extracted above passed by the Division Bench would disable the Petitioner
from advancing such a contention. The interim orders in this respect had made it clear that in case the detenu fails in the Habeas Corpus Petition,
he has to undergo the remaining period of sentence. It is the judicial order which the earlier Division Bench had passed after hearing either side and
the said direction had been allowed to become final. Further, subject to such condition alone, the detenu had been granted bail. Therefore this
contention cannot be sustained at all.
105. Further, in A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another, a Full Bench of this Court had rejected
an identical contention. Hence this contention cannot be sustained. In the present case whatever has occurred has occurred inside the floor of the
Assembly and it is not as if some thing took place out side the Assembly and it is a matter of record as whatever had occurred had been reported
in the minutes of the proceedings of the Legislative Assembly. It is far fetched one to invoke or apply the principle of natural justice and Article 21
of The Constitution and the Apex Court''s observation will only apply to an act committed by a citizen who is not a member of a House and
outside the House. The Full Bench decision of this Court in S. Balasubramanian v. State of Tamil Nadu etc. and Ors. cited supra dealt with a
person who was not a member of the Legislature, but a citizen outside the House. So also the case in A.M. Paulraj v. Speaker, Tamil Nadu
Legislative Assembly, cited supra, and there this Court interfered as there is a violation of fundamental rights guaranteed under Article 21. Further,
the detenu had enjoyed certain privileges as a Member of the Assembly and he is very much bound by the Rules of procedure prescribed and the
constitutional provisions governing the proceedings of the Assembly and if he had violated by his own conduct or committed something which is
unbecoming of a Member of the Assembly, then he is bound by the resolution passed by the Assembly and he has to suffer for his own conduct.
Hence, on facts of the case also the validity of the proceedings inside the Legislature of a State as has already been held cannot be called in
question by the Petitioner, even if it could be pointed out that the Legislature might not have strictly complied with the procedural law laid down for
conducting its business Further, the question of punishment for breach of privilege of the House is a matter exclusively within the domain of the
Legislature under Article 212 of The Constitution and in this case, as on the facts everything took place or whatever contempt or breach of
privilege committed by the detenu, was on the floor of the Assembly and there could be no other agency or authority which could go into such
conduct or contempt of the House or breach of privilege of the House and it is the House which alone is competent to resolve or decide and
impose such punishment or penalty or action as it deems fit. It is the ultimate decision of the House, which had witnessed the happenings, by a
resolution and there is neither a necessity, nor there is possibility to assign or record reason in support of such resolution
106. It is well settled and it has been repeatedly held by the Apex Court that no one in this country is above law. This Court has to uphold the
majesty of law and all the constitutional functionaries including the Hon''ble Speaker of the Tamil Nadu Legislative Assembly and the Secretary of
the Tamil Nadu Legislative Assembly who are constitutional functionaries also are bound to maintain not only the rule of law, but also to stand by
the Constitution and see that the constitutional provisions are followed in essence, in letter and spirit and in practice. When the particular questions
are to be in issue before a Court exercising powers of judicial review under Article 226 and when the point has already been decided by the Apex
Court as early as 1965 In the matter of: Under Article 143 of the Constitution of India, and earlier Full Bench decisions of this Court reported in
A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another, , it would be in the fitness of things for the Respondents
namely the Hon''ble Speaker of the Tamil Nadu Legislative Assembly and the Secretary of the Tamil Nadu Legislative Assembly to have received
the summons and made their submissions by placing the proceedings and also arrange for their stand being placed before the Court. Merely
because the said Respondents appear through counsel, it would not mean that they are subordinate to the jurisdiction of the Courts, nor the
converse could be disputed by those propagating such a stand, in every respect. But still, their action is protected by the constitutional provision
and in respect of those matters. But, yet, the judicial review if made out, they have to submit themselves to the orders of the Court. Befitting with
their constitutional office they hold, and in fitness of things we would have appreciated if they had assisted the court through their counsel, instead
of their refusing to receive the summons and behaviour as if they are the authority for themselves and there is none to review even after the
declaration of law by the Apex Court in In the matter of: Under Article 143 of the Constitution of India, which is a law laid down by the Apex
Court, which is binding on every one, including the Legislature, cannot be appreciated and such a stand deserves to be rejected as untenable.
107. In the result, the first set of orders issued by the Hon''ble Speaker of the Tamil Nadu Legislative Assembly, namely warrant of arrest and
order of detention or warrant of commitment, dated 22nd March, 1999 is declared illegal, without authority or jurisdiction and the same are
quashed. However, as a valid orders have been passed on 23rd March, 1999, the sentence of fifteen days imprisonment on and after 23rd March,
1999, being valid, the committal and detention to prison for one day namely on 22nd day of March, 1999 alone is declared as illegal.
108. We declare that the resolution for arrest and committal and sentence imposed by the Tamil Nadu Legislative Assembly on 23rd March, 1999
as valid and it is not liable to be interfered and the proceedings of the Hon''ble Speaker of the Tamil Nadu Legislative Assembly dated 23rd
March, 1999 and 24th March, 1999, based upon the Resolution is valid and consequently. H.C.P. No. 433 of 1999 is liable to be dismissed. As
a result, the bail granted by this Court is cancelled and it is open to the Respondents and the Police to forthwith give effect to the the sentence
already imposed based upon the Resolution dated 23rd March, 1999, and the order issued by the Hon''ble Speaker of the Tamil Nadu Legislative
Assembly, ordering arrest and committal of the detenu for imprisonment for the remaining period of fifteen days. The imposition of sentence of
fifteen days imprisonment, based upon the resolution of the Tamil Nadu Legislative Assembly is valid and mere suspension of the Legislative
Assembly Member R. Thamaraikkani would not mean that the Legislative Assembly had been denuded of its power to impose the sentence for
breach of privilege of the House or contempt.
109. It is further held that the Speaker of the Tamil Nadu Legislative Assembly has no independent power apart from the powers of the Legislative
Assembly to order arrest or committal of a person or a Member of the Legislative Assembly to imprisonment as a sentence as was done in this
case by issuing warrant and committal dated 22nd March. 1999 and the Speaker of the Legislative Assembly has no inherent or independent
power to order arrest or commitment, except as provided in the Tamil Nadu Legislative Assembly Rules or as per the Resolution passed by the
Tamil Nadu Legislative Assembly.
IV-SUMMARY OF THE CONCLUSION:
110(a). On the first and ninth points, whether the Habeas Corpus Petitions are maintainable, we hold that the writ of Habeas Corpus are
maintainable and the two set of impugned proceedings could be challenged before this Court under Article 220 of The Constitution.
110(b). On the second point we hold that the power of judicial review under Article 226 of The Constitution could not only be invoked, but also
be exercised in respect of the two set of impugned proceedings and the remedy of writ is available to the Petitioner to challenge the impugned
proceedings.
110(c). On the third point, we hold that the first set of proceedings namely warrant of arrest and warrant of commitment and incarceration ordered
by the Hon''ble Speaker of the Tamil Nadu Legislative Assembly, for a period of one week, are declared illegal, without jurisdiction and authority
and they offends Articles 14 and 21 of The Constitution.
110(d). On the fourth point, we hold that the resolution dated 23rd March, 1999 passed by the Tamil Nadu Legislative Assembly or the merits of
the same cannot be the subject matter of judicial review under Article 226 of The Constitution and the writ petition is not maintainable, except to
the extent indicated as above.
110(e). On the fifth point, we hold that the second set of proceedings namely warrant of arrest, warrant of commitment and incarceration, for a
period of 15 days, based upon the resolution of the Tamil Nadu Legislative Assembly, dated 23rd March, 1999, ordered by the Hon''ble Speaker
of the Tamil Nadu Legislative Assembly is not liable to be interfered, nor it is violative of Articles 14 or 21 of The Constitution, and we hasten to
add that it is a valid action on the part of the Tamil Nadu Legislative Assembly and there is no illegality in the said action.
110(f). On the sixth point, we hold that the Hon''ble Speaker of the Tamil Nadu Legislative Assembly has no independent or separate powers or
authority or jurisdiction to order arrest or commitment to prison or to incarcerate any one or its members either for contempt or breach of privilege
or misconduct suo motu and without supported by a resolution of the House.
110(g). On the seventh point, we hold that the Hon''ble Speaker of the Assembly has no independent power to impose incarceration in prison,
except otherwise provided in the Tamil Nadu Legislative Assembly Rules.
110(h). On the eight point, we hold that merely because the order of suspension of the Legislative Assembly Member R. Thamaraikkam had been
effected, the Legislature had not been denuded of its power or ''authority to take action for the contempt of the House or breach of privilege of the
House or for other misconduct of the House and it would not amount to double punishment, nor it would be violative of fundamental rights or any
provisions of The Constitution.
110(i). On the tenth point, we hold the stand taken by the Hon''ble Speaker of the Tamil Nadu Legislative Assembly and the Secretary of the
Tamil Nadu Legislative Assembly departed grossly as officials of the State and that their extreme stand that the action of the Hon''ble Speaker
cannot be the subject matter of judicial review no longer holds good and the constitutional authority is bound to stand by the Constitution and act in
consonance with the constitutional provisions. It is needless to add that the Hon''ble Speaker of the Tamil Nadu Legislative Assembly and the
Secretary should be reminded themselves of the sentiments expressed by the Supreme Court in In re, under Article 143, Constitution of India
reported in In the matter of: Under Article 143 of the Constitution of India, and it is not necessary to state anything further.
110(j). On the eleventh point, we hold that the official report of the Tamil Nadu Legislative Assembly Debates, published by the Tamil Nadu
Legislative Assembly Secretariat deserves acceptance as far as the report and the legal presumption could very well be drawn in this respect.
H.C.P. No. 433 of 1999
110(k). In the result we dismiss this Habeas Corpus Petition and also hold that the imprisonment of the detenu on and after 23.3.1999 is valid and
the detenu has to undergo the remaining period of sentence and the bail granted by this Court in H.C.M.P. No. 42 of 1999 arc cancelled and the
authorities are at liberty to take the detenu in custody to undergo the remaining period of sentence.
110(l). We are not awarding any cost as Respondents 2 and 3 have not taken part in the proceedings.
H.C.P. No. 416 of 1999
110(m). In the result, we allow this Habeas Corpus Petition and quash the warrant of arrest dated 22nd March, 1999 and the warrant of
commitment dated 22nd March, 1999 issued by the Hon''ble Speaker of the Tamil Nadu Legislative Assembly and all the actions taken by the
Police, and Jail Authorities on 22nd March 1999 are declared illegal and without authority and jurisdiction, as such actions are not supported by or
based upon Assembly resolution.
110(n). Though we have expressed ourselves that we are unable to appreciate the stand taken by the Respondents 2 and 3, however, we are not
awarding any cost in this Habeas Corpus Petition against the Respondents.
111. We place on record the valuable assistance rendered by the three Senior Counsel M/s. K. Alagirisamy, R. Krishnamoorthy, and Mr.
Habibullah Basha, and the three former Advocate Generals have placed the facts and the legal position fairly and with legal expertise. We do
appreciate the effective assistance rendered by the learned Additional Advocate General during the hearing.
Mr. B. Kumar, learned senior counsel appearing for the Petitioner in both the Habeas Corpus Petitions prays for the issue of a certificate for
appeal to the Hon''ble Supreme Court of India under Article 134A of The Constitution as according to him the matter involves substantial
questions of law and involves public importance as well.
2. We have heard the learned senior counsel for the Petitioner as well as the learned Additional Advocate General in this respect. We are of the
considered view that this is not a fit case where a certificate could be issued under Article 134A as the entire decision of ours is based upon the
earlier binding pronouncements of the Apex Court on the point as well as Full Bench of this Court Hence we decline to issue a certificate to appeal
to the Hon''ble Supreme Court of India under Article 134A of The Constitution.
3. Nextly, Mr. B. Kumar, learned senior counsel seeks for suspension of the order delivered today as according to the Petitioner, the matter
relates to fundamental rights of the detenu. We have considered this request and the persuasive arguments advanced by Mr. B. Kumar, learned
senior counsel We have already stated in our order that the detenu was enlarged on bail and he is at liberty and at no point of time he had come
before this Court, nor he filed an affidavit expressing one way or other or taking a particular stand Even today also it is only the third party, even
though he may be entitled to maintain a Habeas Corpus Petition makes a request. Taking into consideration of the entire facts, we are of the
considered view that this is not a fit case where we would be justified in suspending the order passed by this Court. Hence the second request
made by Mr. B. Kumar also cannot be conceded.
