The Madras High Court on Tuesday set aside the breach of privilege notices against 19 DMK MLAs, including party president MK Stalin, saying it suffered a "foundational error" in assuming their action of displaying Gutkha in the Tamil Nadu assembly in 2017 to be prohibited in law and also violated Constitutional rights.
The first bench of Chief Justice AP Sahi and Justice Senthil Kumar Ramamoorthy, passing final orders on a batch of petitions from Stalin and others however, granted liberty to authorities for initiation of the privilege proceedings afresh.
On July 19, 2017, DMK members, led by Stalin, had displayed sachets of "gutkha" a banned product, which is a mixture of chewing tobacco and betel nut, in the House and Speaker P Dhanapal referred it to the Privileges Committee.
The Opposition party MLAs, held gutkha packs while seeking to raise an issue of the "availability," of banned products.
Twenty one MLAs, who were issued notice for alleged breach of privilege on August 28, 2017, challenged it by filing writ petitions in the High Court, while two of them, J Anbazhagan and K P P Samy died this year.
The court, noting that exhibiting gutkha was not disputed, said the only question was as to whether Gutkha could be treated as a prohibited item in law for the purpose of display inside the assembly.
"The issuance of the impugned notice of breach of privilege based on the incident suffers from a foundational error of assuming the conduct of the petitioners to be prohibited by the notification dated 23.5.2017, and we hold accordingly," the bench said.
The notification in 2017 was made by the Tamil Nadu government prohibiting the manufacture, storage, transport, distribution and sale of Gutkha.
The law relating to prohibition of a Gutkha sachet being possessed by an individual, which as per the "peculiar facts"
is not alleged to be for consumption, nor was it meant to be storage, transportation or possession for sale resulting in consumption, cannot be construed as an act prohibited under the notification, the court said.
"There is no law, nor was any shown to us that a mere display of a Gutkha sachet which was with the clear intention of drawing the attention of the entire assembly towards an alleged apathy of the government in not tackling the menace of free sale of Gutkha in Tamil Nadu was a conduct prohibited under the notification."
The court said, argument, on behalf of the petitioners that the foundational facts of treating the petitioners conduct as prohibited in law suffered from a totally erroneous approach and lead to a jurisdictional fault to that extent has to be accepted.
"The action of the Committee of Privileges in issuing the impugned notices treating the conduct of the petitioners to be one that is prohibited by law, in the present case by the notification is erroneous and violates the constitutional rights of the petitioners under Article 194 of the Constitution," the judgement said.
The wordings in the impugned notices suffered from gross illegality of a fundamental error and therefore a step in that context in furtherance of the show cause for a breach of privilege is unwarranted.
On judicial review, the court said it was is not supposed to be viewed as policing, but rather conserving and preserving the rule of law so as to ensure that all authorities act within the confines of their power in an accountable way.
Citing various verdicts, the judges said they were convinced that in the present case "we are called upon to determine a pure question of law on the admitted facts relating to the ramifications of the notification."
The court said the petitioners cannot be proceeded against on the strength of the impugned notices by treating their conduct of displaying Gutkha sachets and photographs as being violative of any prohibitory law, particularly the notification of 2017.
The bench made it clear that its conclusion was confined only to the interpretation of the notification vis-a-vis the specific conduct of the MLAs inside the House that was made the basis for the issuance of notice of breach of privilege.
It should not be construed as an interpretation regarding a prosecution or trial of any offence before a competent forum arising out of the notification of 2017, it said.
Whether there was a breach of privilege or not is a matter within the realm of the House for which the Privileges Committee can proceed to answer the same, the Judges said.
"We leave it open to the Committee of Privileges, if it so chooses, to deliberate upon the issue any further in case it still is of the opinion that any breach has been committed of the privileges of the House by the petitioners," they said.
In such an event, the petitioners would be at liberty to raise all objections that they raised before the court or otherwise available in law, the court said.
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