"Foundational defects" in Privilege Notice issued against DMK MLAs for displaying Gutkha Packets in TN Assembly: Madras HC [Read Judgment]

The Madras High Court on Tuesday ruled that the Tamil Nadu Assembly Speaker's 2017 breach of privilege notice against Opposition Leader MK Stalin and 20 other DMK MLAs for displaying sachets of Gutkha on the Assembly floor suffered from foundational defects (MK Stalin v. The Speaker and ors)..This is in view of the Court's finding that the display of the banned Gutkha for the purpose of highlighting its widespread availability on the Assembly Floor does not violate any law..However, the Court has left it to the Privilege Committee to deliberate on the issue further and examine whether the conduct would amount to a breach of privilege, particularly since the legality of a conduct does not necessarily mean that the conduct is not a breach of privilege. .The judgment was pronounced this morning by a Bench of Chief Justice AP Sahi and Justice Senthilkumar Ramamoorthy. The matter dates back to 2017 and was initially posted before the Bench of Justice M Duraiswamy. .After a lull in the hearings, the case was mentioned before the High Court in July this year, when it was pointed out that the term of the Assembly members would come to an end at the end of the year. The High Court had reserved judgment in the matter earlier this month, after three days of final hearings. .The privilege notice was issued by the Speaker in 2017 against 21 DMK MLAs (2 have passed away during the case's pendency) on the ground that "prohibited items" were brought in the Assembly Floor by the DMK MLAs. .Gutkha (chewing tobacco) has been banned in Tamil Nadu since 2013. A May 2017 notification also concerns this ban. .The High Court observed that in this case, it can only delve into the questions of law involved. As such, it was noted that, "The only question is as to whether Gutkha could be treated as a prohibited item in law for the purpose of display inside the House?".After examining the various offences set out in the May 2017 notification, the High Court ruled that the display of Gutkha sachets by the MLAs on the Assembly Floor, with the intent of highlighting its availability despite the ban, did not constitute an offence under the law banning Gutkha in Tamil Nadu. ."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 dated 23.5.2017... The purpose for which it was being displayed was to register a protest to highlight and expose the vulnerability of law and the law enforcing agencies in their alleged failure to enforce the same. The right to freedom of expression and using the Gutkha sachets and photographs as a tool of such expression is the intent and purpose that can be clearly culled out from the proceedings of the House dated 19.7.2017 ", the Court found..Therefore, the Court said that issuance of notice for breach of privilege in the matter, "suffers from a foundational error of assuming the conduct of the petitioners to be prohibited by the notification dated 23.5.2017.".As such, the Court held, ."The petitioners cannot be proceeded against on the strength of the impugned notices dated 28.8.2017 by treating their conduct on 19.7.2017 of displaying Gutkha sachets and photographs as being violative of any prohibitory law particularly the Notification dated 23.5.2017.".The Bench clarified that its observations should not be construed as an interpretation regarding prosecution or trial of any offence before a competent forum on offences concerning the Gutkha ban. ."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 and in that event, the petitioners will be at liberty to raise all such objections that have been raised before us, or even otherwise available in law", the Court added. .With these, among other, observations, the Court has partly allowed the pleas moved by the DMK MLAs challenging the privilege proceedings initiated by the Speaker in 2017. .Senior Counsels R Shanmughasundaram, NR Elango and Advocates Amit Tiwari, B Harikirshnan, R Girirajan, S Manuraj, R Neelakandan, P Muthukumar, S Mahesh Sahasranaman and Devyani Gupta appeared for the Petitioners..Advocate General Vijay Narayan, assisted by AAG SR Rajagopal and Government Pleader V Jayaprakash Narayanan, and Special Senior Counsel AL Somayaji, assisted by K Gowtham Kumar appeared for the respondents..Read the Judgment: