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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)  NO. 455 OF 2015

Alagaapuram R. Mohanraj & Others … Petitioners

Versus

Tamil Nadu Legislative Assembly  Rep. by its Secretary & Another … Respondents

J U D G M E N T

Chelameswar, J. 1. This is a petition filed by six petitioners invoking Article  

32  of  the  Constitution  of  India.   They  are  members  of  the  

Tamil  Nadu  Legislative  Assembly  representing  different  

constituencies.   By  a  resolution  of  the  assembly  dated  

19.02.2015, nineteen members of the assembly, including the  

six petitioners, have been suspended from the House for the  

remainder  of  the  period  of  the  then  current  Session.  The  

resolution  suspended  the  nineteen  members  for  allegedly  

obstructing  the  proceedings  of  the  legislative  assembly.

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Subsequently,  a  Privileges  Committee  was  constituted  to  

inquire into whether the conduct of the members during the  

incident dated 19.02.2015 amounted to a breach of privilege.  

The  Privileges  Committee  held  that  the  actions  of  the  six  

petitioners were a breach of privilege, and recommended the  

action  to  be  taken  against  the  six  petitioners.  Such  a  

recommendation was passed by a resolution of the assembly  

dated  31.03.2015.  Through  this  resolution,  the  petitioners  

were suspended for a period of ten days of the next session of  

the House. Further, it was resolved that the petitioners should  

not be paid their salaries or given other benefits which are due  

to them as members of the Legislative Assembly for the period  

of suspension.

2. Aggrieved by the same, the petitioners filed the instant  

writ petition praying as follows:-

a) Issue a  writ  of  order  declaring  the  impugned resolution  dated  31.03.2015 passed  in  the  Tamil  Nadu Legislative  Assembly,  as  unconstitutional, illegal, null and void.

b)  Issue a writ of order and strike down the suspension beyond the  second period.

c)  Issue a writ of order and permit the petitioners to use the office  and their residential premises.

d)  Issue  a  writ  of  order  and restore  all  benefits  other  than  that  which is connected with the house.

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e)  Issue a writ of certiorari calling for the records pertaining to the  resolution  of  the  Tamil  Nadu  Legislative  Assembly  dated  19.02.2015 and 31.03.2015 in awarding multiple punishments to  the petitioners on the file of the first respondent so as to quash the  same.

f)  Issue  a  writ  of  order  declaring  the  proceedings  of  breach  of  privilege against the petitioner herein, right from commencement  of the proceedings by the 2nd respondent herein under Rule 226 of  the Tamil Nadu Legislative Assembly framed under Article 208 of  Constitution of India to the subsequent proceedings carried out by  the privilege committee under rule 229 of the rules including the  resolution  of  the house under rule  229(d) dated 19.02.2015 and  31.03.2015  respectively  are  illegal,  failure  to  comply  with  the  principles of natural justice, perverse, irrational and violative of the  petitioners  statutory  right  under  the  Tamil  Nadu  payment  of  salaries Act, 1951.

g) Pass such other/further order as this Hon’ble Court may deem fit  and proper in the facts and circumstances of the present case.”

3. All  the six petitioners are members of  a  political  party  

known as DMDK.   

  4. The basic facts leading to the present writ petition are as  

follows:-

On 19.2.2015, the petitioners allegedly resorted to unruly  

conduct while the session was in progress.  When the Speaker  

directed  the  Marshalls  to  evict  the  first  petitioner  from the  

House because of the alleged unruly conduct, the remaining  

petitioners ran to the Speaker’s podium allegedly to attack the  

Speaker.  However,  they  were  prevented  by  the  Marshalls.  

Thereafter,  the  Speaker  passed  an  Order  suspending  19  

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members of the Legislative Assembly belonging to the DMDK  

party from the Assembly for the remainder of the Session with  

immediate effect.

5. Such a decision was taken by the Speaker allegedly in  

exercise  of  the power under Rule  121(2)  of  the Tamil  Nadu  

Assembly Rules.

6. The Speaker also referred to the Privileges Committee of  

this  Assembly the incident dated 19.02.15 to  identify  those  

members  who  attempted  to  assault  the  Speaker  and  the  

Watch  and  Ward  Staff.  The  Privileges  Committee,  after  an  

inquiry,  recorded  a  conclusion  that  the  conduct  of  the  six  

petitioners was in breach of the privileges of the House and,  

therefore,  recommended  to  the  House  that  these  six  

petitioners be removed from the Assembly for 10 days from the  

commencement of the next session of the Legislative Assembly  

and also that during the said period, the petitioners be not  

paid  the  salary  and  be  given  other  benefits  to  which  the  

members of the House are entitled.   Hence, the writ petition.

7. Various  submissions  are  made  on  behalf  of  the  

petitioners which can be summarized as follows:-

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(i) That the decision to suspend the petitioners not  

only  for  the  current  session  in  which  the  

alleged breach of  privilege  occurred  but  also  

for  a  certain  period  of  the  next  session  is  

beyond  the  authority  of  the  House  and  the  

Speaker under Article 194.

(ii)The  incidents  which  took  place  outside  the  

premises of the Legislative Assembly could not  

form the basis for taking action on the ground  

that such incidents resulted in the breach of  

the privileges of the House.

(iii) The  non-supply  of  certain  material  (video  

recording) to the petitioners which was relied  

upon  to  record  the  conclusion  that  the  

petitioners are guilty amounted to denial of a  

reasonable  opportunity  and,  therefore,  non-

compliance  with  the  principles  of  natural  

justice vitiating the assembly resolution dated  

31.03.2015.  

(iv) The State legislature and the Speaker do not  

have the authority to seize the office and the  

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residential  premises  in  the  legislative  hostel  

allotted  to  the  petitioners  by  virtue  of  their  

membership in the Legislative Assembly.

8. At the very threshold, the petitioners were called upon to  

satisfy this Court regarding the maintainability of the instant  

writ petition as for the maintenance of a writ petition under  

Article 32, the petitioners must demonstrate that there is an  

infraction of one of the fundamental rights guaranteed to the  

petitioners under Part III of the Constitution.

9. The response of the petitioners is twofold.   

(1) That the petitioners’ fundamental rights guaranteed  

under Articles 19(1)(a), 19(1)(g), 14 and Article 21 of the  

Constitution  have  been  violated  by  the  impugned  

resolution;  

(2) This Court in the case of  Raja Ram Pal v.  Hon’ble  

Speaker,  Lok  Sabha  &  Others,  (2007)  3  SCC  184,  

examined the constitutionality of the proceedings of the  

Speaker of the Lok Sabha in exercise of its jurisdiction  

under Article 32 of the Constitution of India.  Therefore,  

the present petition also is maintainable.  

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10. We  shall  first  deal  with  the  second  submission  of  the  

petitioners.   The question whether a petition under Article 32  

is  maintainable  to  determine  the  legality  of  the  action  by  

legislative bodies against its members on the ground that they  

indulged in conduct which is in breach of the privileges of the  

House was never raised either by the respondents nor did the  

Court go into that question in Raja Ram Pal case.   On the  

other hand, it appears from the said judgment that this Court  

was not only dealing with the writ petitions filed under Article  

32 but certain transferred cases though exact details of those  

cases and from where they were transferred are not available  

from the judgment. In our opinion, Raja Ram Pal case is not  

an authority for the proposition that a writ petition such as  

the  one  on  hand  is  maintainable  under  Article  32.    The  

question must be examined independently.

11. Article  32  of  the  Constitution  guarantees  the  right  to  

move  this  Court  by  appropriate  proceedings  for  the  

enforcement of rights conferred by Part III of the Constitution.  

Article  32  insofar  as  it  is  relevant  for  the  present  purpose  

reads as follows:-

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“32. (1) The right to move the Supreme Court by appropriate proceedings  for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or  writs,  including  writs  in  the  nature  of  habeas  corpus,  mandamus,  prohibition,  quo warranto and certiorari,  whichever may be appropriate,  for the enforcement of any of the rights conferred by this Part.”

12. The  jurisdiction  of  this  Court  under  Article  32  in  

contradistinction to the jurisdiction of the High Courts under  

Article 226 is limited. While the High Courts in exercise of the  

jurisdiction  under  Article  226  can  issue  writs  for  the  

enforcement  of  any right  conferred by Part  III  and for  “any  

other  purpose”,  the  jurisdiction  under  Article  32  is  only  

confined to the enforcement of the rights conferred under Part  

III of the Constitution.  This distinction is well recognised by  

this Court in number of cases1. Therefore, in order to maintain  

the present petition, the question whether there is any breach  

of  fundamental  rights  of  the  petitioners  is  required  to  be  

examined.    

13. It  is  argued  on  behalf  of  the  petitioners  that  the  

impugned action is  violative  of  the  petitioners’  fundamental  

right of speech and expression guaranteed under Article 19(1)

(a)  and  their  fundamental  right  to  carry  on  an  occupation  

1 See, Gujarat State Financial Corporation v. Lotus Hotel, AIR 1983 SC 848: (1983) 3 SCC 379; Air India   Statutory Corpn. v. United Labour Union, AIR 1997 SC 645, 680 : (1997) 9 SCC 377.  

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guaranteed under Article 19(1)(g).   It is also the case of the  

petitioners  that  the  alleged  non-compliance  with  the  

requirement of the principles of natural justice in the process  

of enquiry into the alleged unruly conduct of the petitioners  

and award of the punishment is violative of Article 14.   It is  

also argued that the impugned action insofar as it  deprives  

(although for a limited period) the petitioners of  their salary  

and other facilities attached to their membership of the house  

is a violation of their fundamental right under Article 21 of the  

Constitution.

14. We proceed to examine the claim of the petitioners that  

by  the  impugned  action  their  fundamental  rights  under  

Articles 19(1)(a) and (g) are violated.   

15. It  is  well  settled  now  that  the  fundamental  rights  

guaranteed under Article 19 are available only to the citizens  

of this country whereas the other fundamental rights under  

Articles  14  and  21  are  available  to  every  person  who  is  

subjected  to  the  laws  of  this  country.   The  six  freedoms  

enumerated under Article 19 of the Constitution inhere in all  

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the citizens, by virtue of their citizenship without the need for  

anything further.   

16. Two  questions  are  required  to  be  examined  in  the  

context; (i) when a member of a State Legislature participates  

in the proceedings of the House, is that member exercising a  

fundamental  right  of  speech  and  expression  under  Article  

19(1)(a)? (ii) Whether any action, either of that legislative body  

or any other authority, acting pursuant to any law, disabling  

either temporarily or otherwise a member from participating in  

the proceedings of the legislative body, amounts to deprivation  

of the fundamental right to freedom of speech under Article  

19(1)(a) of such a legislator?   

17. To answer the above question, a closer scrutiny of some  

of the provisions of the Constitution is required.  Articles 105  

and 194 are relevant in the context2.  These two articles deal  

2 Relevant portions of the Articles: Article 105. (1) Subject to the provisions of this Constitution and to the rules and standing orders  

regulating the procedure of Parliament, there shall be freedom of speech in Parliament.  (2) No member of Parliament shall be liable to any proceedings in any court in respect of any  

thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable  in respect of the publication by or under the authority of either House of Parliament of any report, paper,  votes or proceedings.

Article 194. (1) Subject to the provisions of this Constitution and to the rules and standing orders  regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every  State.  

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in  respect  of anything said or any vote given by him in the Legislature or any committee thereof, and no  person shall  be so liable in respect  of the publication by or under the authority of a House of such a   Legislature of any report, paper, votes or proceedings.

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with  the  Parliament  and  the  State  Legislature  respectively.  

They declare inter alia that “there shall be freedom of speech”  

in  the  said  legislative  bodies.   Articles  105(2)  and  194(2)  

further declare that no member of either the Parliament or the  

State  Legislature  “shall  be liable  to  any proceedings in  any  

court in respect of any thing said” in such legislative bodies or  

any committee thereof.   

18. It is clear from the scheme of these two articles that the  

constitutional  declaration  of  freedom  of  speech  in  the  

legislative bodies creates a constitutional right in favour of the  

members of such legislative bodies. Such a freedom had its  

origin  in  the  privileges  of  the  House  of  Commons3.  The  

dimensions and contours  of  such right  are  greatly  different  

from the dimensions and contours of the fundamental right of  

speech and expression guaranteed under Article 19(1)(a).   

(i) While the fundamental right of speech guaranteed under  

Article 19(1)(a) inheres in every citizen, the freedom of speech  3  PV Narasimha Rao v. State (CBI/SPE)  (1998) 4 SCC 626  

110. xxxx xxxxx xxxx xxxx The privileges of the House of Commons, as distinct from those of the House of Lords, were  

defined as “the sum of the fundamental  rights of the House and of its individual Members  as   

against the prerogatives of the Crown, the authority of the ordinary courts of law and the  special rights of the House of Lords”.

The privileges of the House of Commons included the freedom of speech, which had been claimed  in 1554. This comprised the right of the House to provide for the due composition of its own body, the right  to regulate its own proceedings, the right to exclude strangers, the right to prohibit publication of its debates  and the right to enforce observation of its privileges by fine, imprisonment and expulsion.

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contemplated under Articles 105 and 194 is not available to  

every  citizen  except  the  members  of  the  legislative  bodies,  

though, by virtue of the operation of other provisions of the  

Constitution,  citizenship  of  this  country  is  a  condition  

precedent  for  acquiring  the  membership  of  the  legislative  

bodies;  the constitutional right of free speech in the legislative  

bodies is not inherent to the citizenship but is to be acquired  

by getting elected to those bodies.  

(ii)  The freedom of speech contemplated in Articles 105 and  

194 is available only during the tenure of the membership of  

those bodies.   No citizen can be deprived of its citizenship and  

therefore  the  fundamental  right  under  Article  19(1)(a)  is  

inalienable.    

(iii) The constitutional right of free speech under Articles 105  

and 194 is limited to the premises of  the legislative bodies.  

Whereas, the freedom of speech under Article 19(1)(a) has no  

such geographical limitations.

(iv) While  the  freedom of  speech  guaranteed  under  Article  

19(1)(a)  is  subject  to  reasonable  restriction  that  could  be  

imposed  by  law  which  is  compliant  with  the  limitations  

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specified  under  Articles  19(1)(2),  the  right  of  free  speech  

available to a legislator, either under Articles 105 or 194, is  

not subject to any such limitation that could be imposed by  

law.  However, such a freedom, as it appears from the opening  

clauses of these two articles, is subject to “other provisions of  

the  Constitution  and  to  the  rules  and  standing  orders  

regulating  the  procedure  of  the  legislative  bodies”4.   One  

express  limitation  on such freedom is  found under  Articles  

121 and 211 which prohibit, in express terms, any discussion  

in the legislative  bodies with respect  to  the  conduct  of  any  

Judge of Supreme Court or of the High Court in the discharge  

of  his  duties.   Further,  Articles  118 and 208 authorise  the  

4  PV Narasimha Rao case, (1998) 4 SCC 626   27. Clause (1)  secures  freedom of speech  in  Parliament  to its  Members.  The said freedom is  

“subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure   of Parliament”. The words “subject to the provisions of this Constitution” have been construed to mean  subject to the provisions of the Constitution which regulate the procedure of Parliament, viz., Articles 118  and 121. (See:  M.S.M. Sharma v.  Sri Krishna Sinha SCR at p. 856 and Special Reference No. 1 of 1964  also known as the Legislative Privileges case SCR at p. 441.) The freedom of speech that is available to  Members of Parliament under Article 105(1) is wider in amplitude than the right to freedom of speech and  expression  guaranteed  under  Article  19(1)(a)  since  the  freedom of speech  under Article  105(1)  is  not  subject to the limitations contained in Article 19(2)

109. By reason of sub-article (1) of Article 105, Members of Parliament enjoy freedom of speech  subject only to the provisions of the Constitution and the rules and standing orders regulating the procedure   of Parliament. That express provision is made for freedom of speech in Parliament in sub-article (1) of  Article 105 suggests that this freedom is independent of the freedom of speech conferred by Article 19 and  unrestricted by the exceptions contained therein. This is recognition of the fact that Members need to be  free of all constraints in the matter of what they say in Parliament if they are effectively to represent their   constituencies in its deliberations. Sub-article (2) of Article 105 puts negatively what sub-article (1) states  affirmatively. Both sub-articles must be read together to determine their content. By reason of the first part  of sub-article (2) no Member is answerable in a court of law or any similar tribunal for what he has said in   Parliament. This again is recognition of the fact that a Member needs the freedom to say what he thinks is  right in Parliament undeterred by the fear of being proceeded against.

110.  xxxxx xxxxx xxxxx xxxxxx The provisions of Article 194(2), therefore, indicated that the freedom of speech referred to in sub-

article (1) thereof was different from the freedom of speech and expression guaranteed under Article 19(1) (a) and could not be cut down in any way by any law contemplated by Article 19(2).

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legislative bodies to make rules for regulating their procedure  

and the conduct of their business;

Therefore, the scope and amplitude of the freedom of speech  

inhering  in  a  citizen  and  available  to  a  member  of  the  

legislative body are totally different.  No citizen has a right to  

enter the legislative body and exercise his freedom of speech  

unless  he  first  gets  elected  to  such  a  legislative  body  in  

accordance with law.  No legislator would continue to enjoy  

the freedom of speech contemplated under Articles 105 and  

194 after  the cessation of  the membership of  the legislative  

body.  

19. No  doubt,  when  a  legislator  is  prevented  from  

participating  in  the  proceedings  of  the  House  during  the  

currency  of  the  membership  by  virtue  of  some proceedings  

taken against such a legislator, there would be a curtailment  

of  the  legislator’s  constitutional  right  of  free  speech  in  the  

House  of  which  such  legislator  is  a  member.  But  such  

curtailment is sanctioned by Constitution in view of the fact  

that such a right is made subject to other provisions of the  

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Constitution,  the  rules  and  standing  orders  regulating  the  

procedure of the legislative bodies.

20. Therefore, we are of the opinion that though there is a  

curtailment  of  the  petitioners’  right  of  free  speech  in  the  

Legislative Assembly of Tamil Nadu to which they are entitled  

under Article 194 by virtue of the impugned order, the said  

impugned  order  does  not,  in  the  context,  violate  the  

fundamental rights of the petitioners guaranteed under Article  

19(1)(a).

21. Our view is fully supported by an opinion of this Court In  

re under Article 143 of Constitution of India, AIR 1965 SC  

7455,  which view was reiterated by a Constitution Bench in  

5 31.  It will be noticed that the first three material clauses of Article 194 deal with three different topics.   Clause (1) makes it clear that the freedom of speech in the legislature of every State which it prescribes, is   subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure   of the legislature.  While interpreting this clause, it is necessary to emphasise that the provisions of the  Constitution  to  which  freedom  of  speech  has  been  conferred  on  the  legislators,  are  not  the  general   provisions of the Constitution but only such of them as relate to the regulation of the procedure of the   legislature. The rules and standing orders may regulate the procedure of the legislature and some of the  provisions of the Constitution may also purport to regulate it; these are, for instance, Articles 208 and 211.  The adjectival  clause  “regulating  the procedure  of  the  legislature”  governs both the preceding  clauses  relating to “the provisions of the Constitution” and “the rules and standing orders”. Therefore, clause (1)   confers on the legislators specifically the right of freedom of speech subject to the limitation prescribed by  its first part. It would thus appear that by making this clause subject only to the specified provisions of the  Constitution, the Constitution-makers wanted to make it clear that they thought it necessary to confer on the  legislators freedom of speech separately and, in a sense, independently of Article 19(1)(a). If all that the  legislators were entitled to claim was the freedom of speech and expression enshrined in Article 19(1)(a), it  would have been unnecessary to confer the same right specifically in the manner adopted by Article 194(1);  and  so,  it  would  be  legitimate  to  conclude  that  Article  19(1)(a)  is  not  one  of  the  provisions  of  the  Constitution which controls the first part of clause (1) of Article 194.

32. Having conferred freedom of speech on the legislators, clause (2) emphasizes the fact that the  said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in  respect of the votes they may give in the legislature or any committee thereof. In other words, even if a  legislator exercises his right of freedom of speech in violation, say, of Article 211, he would not be liable   for any action in any court. Similarly, if the legislator by his speech or vote, is alleged to have violated any  

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Raja Ram Pal  v.  Hon’ble Speaker, Lok Sabha & Others,  

(2007)  3  SCC  1846 and  in  P.V.  Narasimha  Rao  v.  State  

(CBI/SPE), (1998) 4 SCC 6267.

22. According to the petitioners, the term ‘occupation’ under  

Article  19(1)(g)  is  of  the widest amplitude,  and includes the  

office of a member of legislative assembly.

For  this  proposition,  the  counsel  places  reliance  on  

Paragraph  239  of  the  T.M.A  Pai  Foundation v.  State  of  

Karnataka, (2002) 8 SCC 481.  

“239.  …..  Article  19  confers  on  all  citizens  rights  specified  in  sub- clauses (a) to (g).   The fundamental rights enshrined in sub-clause (g) of  clause  (1)  of  Article  19  of  the  Constitution  are  to  practice  any  profession, or to carry on any occupation, trade or business.   We are  concerned  here  with  the  right  to  establish  educational  institutions  to  impart  education  at  different  levels,  primary,  secondary,  higher,  technical, professional etc.   Education is essentially a charitable object  and  imparting  education  is,  in  my  view,  a  kind  of  service  to  the  community, therefore, it cannot be brought under “trade or business” nor  can it fall under “profession”.   Nevertheless, having regard to the width  

of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would  not be answerable for the said contravention in any court. If the impugned speech amounts to libel or  becomes actionable or indictable under any other provision of the law, immunity has been conferred on him  from any action in any court by this clause. He may be answerable to the House for such a speech and the   Speaker may take appropriate action against him in respect of it; but that is another matter. It is plain that  the Constitution-makers  attached  so much importance  to  the necessity  of  absolute freedom in debates  within  the  legislative  chambers  that  they  thought  it  necessary  to  confer  complete  immunity  on  the  legislators from any action in any court in respect of their speeches in the legislative chambers in the wide   terms prescribed by clause (2). Thus, clause (1) confers freedom of speech on the legislators within the  legislative chamber and clause (2) makes it plain that the freedom is literally absolute and unfettered.

6 Powers, privileges and immunities—Generally 130. Taking note of Pandit Sharma (I) it was reiterated in U.P. Assembly case (Special Reference   

No. 1 of 1964) that clause (1) of Article 194 no doubt makes a substantive provision of the said clause  subject to the provisions of the Constitution; but in the context, those provisions cannot take in Article   19(1)(a), because the latter article does not purport to regulate the procedure of the legislature and it is only   such provisions of the Constitution which regulate the procedure of the legislature which are included in  the first part of Article 194(1).

7 See F/N 4  supra.  

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of the meaning of the term “occupation” elucidated in the judgment of  the  Hon’ble  the  Chief  Justice,  the  service  which  a  citizen  desires  to  render  by  establishing  educational  institutions  can  be  read  in  “occupation”.  This right, like other rights enumerated in sub-clause (g),  is controlled by clause (6) of Article 19.   The mandate of clause (6) is  that nothing in sub-clause (g) shall affect the operation of any existing  law, insofar as it imposes or prevents the State from making any law  imposing, in the interests of the general public, reasonable restrictions  on  the  exercise  of  right  conferred  by  the  said  sub-clause  and,  in  particular, nothing in the said sub-clause shall affect the operation of any  existing law insofar as it relates to or prevents the State from making any  law relating to: (i) the professional or technical qualifications necessary  for practicing  any profession or carrying on any occupation,  trade or  business; or (ii) the carrying on by the State, or by a corporation owned  or controlled by the State,  of any trade, business, industry or service,  whether to the exclusion, complete or partial, of citizens or otherwise.  Therefore,  it  may  be  concluded  that  the  right  of  a  citizen  to  run  educational  institutions  can  be  read  into  “occupation”  falling  in  sub- clause  (g)  of  clause (1) of Article  19 which would be subject  to  the  discipline of clause (6) thereof.”

In our opinion, it does not, in any way, support the claim of  

the  petitioner  that  the  impugned action  is  violative  of  their  

fundamental  right  under  Article  19(1)(g).  To  decide  the  

correctness of the submission, we need to examine both the  

etymological  and  contextual  meaning  of  the  expression  

occupation occurring in Article 19(1)(g).

23.  This  Court  in  Sodan  Singh v.  New Delhi  Municipal  

Committee, 1989 4 SCC 105, had an occasion to examine the  

question and held;  

“The  guarantee  under  Article  19(1)(g)  extends  to  practice  any  profession,  or  to  carry  on  any  occupation,  trade  or  business.  ‘Profession’ means an occupation carried on by a person by virtue of his  personal  and  specialized  qualifications,  training  or  skill.   The  word  ‘occupation’  has  a  wide  meaning  such  as  any  regular  work,  profession, job, principal activity, employment, business or a calling  

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in which an individual is engaged.   ‘Trade’ in its wider sense includes  any  bargain  or  sale,  any  occupation  or  business  carried  on  for  subsistence or profit,  it  is  an act  of buying and selling of goods and  services.   It may include any business carried on with a view to profit  whether  manual  or  mercantile.    ‘Business’  is  a  very wide  term and  would include anything which occupies the time, attention and labour of  a  man for  the  purpose  of  profit.    It  may include  in  its  form trade,  profession, industrial and commercial operations, purchase and sale of  goods,  and  would  include  anything  which  is  an  occupation  as  distinguished from pleasure.   The object of using four analogous and  overlapping  words  in  Article  19(1)(g)  is  to  make  the  guaranteed  right as comprehensive as possible to include all  the avenues and  modes through which a man may earn his livelihood.   In a nutshell  the guarantee takes into its fold any activity carried on by a citizen  of India to earn his living.   The activity must of course be legitimate  and not anti-social like gambling, trafficking in women and the like.”8

Thus, it can be seen that the essence of the right is to pursue  

an activity which enables a citizen to earn livelihood.

24. In T.M.A Pai Foundation (supra) , this court held that  

“Article  19(1)(g)  employs  four  expressions  viz.  profession,  occupation,  trade  and  business.  …  Article  19(1)(g)  uses  the  four  expressions so as to cover all activities of a citizen in respect of which  income  or  profit is  generated,  and  which  can  consequently  be  regulated under Article 19(1)(6)”.9  

The  amplitude  of  the  term  ‘occupation’  is  limited by  the  

economic imperative of livelihood generation.   Therefore,  

all  the  activities  contemplated  under  Article  19(1)(g)  are  

essentially  activities  which  enable  a  citizen  to  generate  

economic benefits.  The primary purpose and thrust of Article  

19(1)(g)  is  to  generate  economic  benefit  and  to  protect  the  

fruits of one’s labour.  

8 Paragraph 28.  9 Paragraph 20.

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25. The right to contest an election to the legislative bodies  

established  by  the  Constitution  is  held  not  to  be  a  

fundamental right.  Therefore, logically it would be difficult to  

accept  the  submission  that  the  right  to  participate  in  the  

proceedings  of  the  legislative  bodies  can  be  a  fundamental  

right falling under Article 19(1)(g).  No citizen is entitled as of  

right  either to become or continue for  the whole  lifetime as  

member  of  a  legislative  assembly.   Acquisition  of  the  

membership depends on the decision of the electorate and is  

conferred by a process established by law.  Even after election,  

the tenure is limited.  Fundamental rights do not come into  

existence  upon  the  volition  of  others.   They  inhere  in  the  

citizens  and  are  capable  of  being  exercised  independently  

without the need for any action or approval of others subject  

only  to  the restrictions  imposed by law.   Any member of  a  

legislative assembly holds office until such membership comes  

to an end by some process established by law.  Constitutional  

offices commencing from the office of the President of India are  

meant for and established for securing the goals adumbrated  

in the preamble to the Constitution.   Each of these offices is a  

component in larger machinery established to make it possible  

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for the people of this country to realise the goals indicated in  

the  preamble  of  the  Constitution.    Any  monetary  benefit  

incidental to the holding of such offices is only to compensate  

for the time and energy expended by the holder of the office in  

the service of  the nation.    It is for this very reason that a  

member of a legislative assembly cannot be treated as holding  

office for the purpose of eking out a livelihood.

 26.  The  economic  underpinnings  of  an  ‘occupation’  under  

Article  19(1)(g)  and  the  transient  and  incidental  nature  of  

economic benefits flowing from the office of a legislator must  

inevitably  lead  to  the  conclusion  that  a  member  of  the  

legislative  assembly  cannot  be  treated  as  pursuing  an  

‘occupation’  under  Article  19(1)(g).  We,  therefore,  reject  the  

contention that the issue at hand involves the rights of  the  

petitioners under Article 19(1)(g).  

27. Coming to the question of violation of fundamental right  

under Article 21 of the petitioners, the case of the petitioners  

is that by virtue of the impugned action the petitioners have  

been deprived of their salaries and other benefits incidental to  

the membership of the legislative assembly during the period  

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of  suspension  and,  therefore,  it  is  violative  of  their  

fundamental right under Article 21.   

28. No  clear  authority  is  cited  before  us,  nor  any  tenable  

submission is made to demonstrate that there is violation of  

Article 21 except a bare assertion.  On the other hand, in Raja  

Ram Pal case, it was argued that such depravation resulting  

from the expulsion of a member from the house would result  

in violation of the ‘constitutional rights’ of the members of the  

parliament10 and therefore the expulsion would be bad.  

29. This Court repelled the submission and held:

“… in the present case, where there is a lawful expulsion, the Members  cannot claim that the provisions relating to salaries and duration of the  House create such rights for the Members that would have supremacy over  the power of expulsion of the House.”

In other words, this Court held that salary and other benefits  

to  which  the  members  of  a  legislative  body  are  entitled  to  

during their tenure are purely incidental to the membership  

and they don’t  even create an independent and indefeasible  

constitutional  right.   Therefore,  the  question  that  the  

10 Para 151. It was further argued by the petitioners, that provisions in the Constitution relating to salary  and the term for which they serve in the House are constitutional rights of the Members and the power of   expulsion, by terminating their membership violates these constitutional rights.

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deprivation  of  such  benefits  amounted  to  deprivation  of  

fundamental right under Article 21 does not arise at all.

30. We now deal with the submissions of the petitioners that  

the  impugned  proceedings  are  violative  of  the  fundamental  

right  of  the  petitioners  under  Article  14.   According  to  the  

petitioners, the said proceedings have been taken in violation  

of the principles of natural justice.  It is settled law that the  

scope  of  judicial  review  in  matters  relating  to  action  taken  

against  members  by  the  legislative  bodies  is  limited.  

However,  it  is  likewise well  settled that  the non-compliance  

with  the  principles  of  natural  justice  is  one  of  the  limited  

grounds on which judicial review could be undertaken against  

the internal proceedings of the legislative bodies in appropriate  

cases.11   

31. We  now examine  the  petitioners’  claim that  there  has  

been a violation of the principles of natural justice.  It is rather  

difficult to cull out from the body of the clumsily drafted writ  

petition (the counter is no better though very long) the precise  

11 Jagjit Singh v. State of Haryana, (2006) 11 SCC 1.  “We may hasten to add that howsoever limited may   be the field of judicial  review,  the principles of natural  justice have to be complied with and in their  absence, the orders would stand vitiated.” -- Para 14.

See also paragraphs 671 and 672 of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Others,   (2007) 3 SCC 184.  

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factual grievance of the petitioners.   The substance we could  

cull out is that a copy of the videograph relied upon by the  

Privileges  Committee  was  not  provided  to  them.  From  a  

reading  of  paragraphs  3.12  to  3.18  of  the  writ  petition,  it  

appears that there was considerable correspondence between  

the Privileges Committee and the petitioners.  The Privileges  

Committee called for an explanation from the six petitioners  

herein  as  to  why  action  could  not  be  taken  against  them,  

though it is not clear from the record as to the basis on which  

the six petitioners were chosen out of the 19 MLAs who were  

suspended  initially.   Each  of  the  petitioners  gave  their  

explanation  by  separate  letters.  After  consideration  of  the  

explanation,  the  Privileges  Committee  concluded  that  there  

was  indeed  breach  of  privilege,  and  recommended  action  

against the six petitioners. This recommended action formed  

the basis of the assembly resolution dated 31.03.2015.  

32. It is argued before us that the Privileges Committee relied  

upon certain video recordings for  arriving at the conclusion  

that the petitioners are guilty of conduct which is in breach of  

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the privileges of the house but a copy of the video recording  

was not provided to the petitioners12.  

33. It is clear from the record that the video recording played a  

crucial role in the deliberations of the Privileges Committee.13  

12 Apart from the vague reference in Para 3.12 of the facts, the petitioners take it as a ground (Ground No.  38) in the instant writ. Para 3.12 reads “The petitioner No.1 sent his reply to the letter seeking explanation   by  the  Privilege  Committee.   The  letter  was  received  by  the  Petitioner  only  on  23.2.2014,  but  the  explanation was sought  for  on or  before  27.2.2015.   Further,  the petitioner  sought permission to give  further explanation immediately when the video clipping of the incident.  A true copy of the letter sent by   Petitioner No.1 to Secretary of the Legislative Assembly dated 27.2.2015 is annexed herewith and marked   as Annexure-P7.” Ground No. 38 reads “The respondents never gave a copy of the alleged videography”.   Apart from this one sentence, the petitioners do not elaborate any further.  13 From a perusal of the minutes of the privileges committee meeting dated 20.02.2015, it is evident that the   viewing of a video recording of the incident dated 19.2.2015 formed the basis for application of mind by   the members of the privileges committee  

Tellingly, the minutes read [Chairman of the Privileges Committee]-  “After viewing the video clippings each member can record their own opinion” [Chairman of the Privileges Committee]-  “I request the members of the committee that before recording your opinion I request to view  

the video recordings taken on 19.02.2015 in the House.  I  request  you to record your opinions after  viewing the video recordings”  

“This meeting is held to find out the members who are all have involved in the undue acts after  viewing the video records and to decide as to what action can be taken against them”

…  “Let [us] first view the video footage and then the committee shall come to a conclusion” [Mr. J.C.D. Prabhakar, member, privileges committee]-  “Here you showed the video recording to the members clearly …”  This  member  then  goes  on  to  discuss  the  events  as  depicted  in  the  video  recording  and   

individuates the six petitioners as indulging in actions which amount to a breach of privilege.  [Mrs. S. Vijayadharani, member, privileges committee]-   “The  expressing  of  the  anger  by V.C.  Chandira  Kumar  is  very  clearly  seen  from the  video  

clipping”.  This member then goes on to record her opinion that one of the petitioners is not involved in the  

scuffle.  [Mr. A. Lasar, member, privileges committee]-  “We have seen the video footage with respect to that incident. Hence we are speaking here in the   

way that in this regard that hereafter these types of incidents should not happen” [Mr. K.S.N. Venugopalu, member, privileges committee]-  “ … I saw from my seat  that the incident happened yesterday on 19.02.2015 was very much  

brutal. We have again see in in the video. … I give the opinion that the 6 members who involved in this   terrible act namely Mr. Alagapuram R. Mohan Rah, Mr. V.C. Chandra Kumar, Mr. C. H. Sekhar, Mr. K.  Dinakaran, Mr. S.R. Parthiban, Mr. L. Venkatesan should be suspended for one year in such a way that   they should not come to the house.”.  

[Mr. Challenger Dorai @ Doraisamy]-  “We have also seen the incident in the video footage also …”. ` [Hon’ble leader of the house]-  “All the members present here all are included in the Legislative Assembly.  Hence you would  

have seen the incidents happened with your eyes Not only was that, the video recordings also shown.  Since some of them would have forgot only the video recordings were shown again”

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Upon viewing the recording of the incident dated 19.02.2015  

in which nineteen members belonging to the DMDK party were  

allegedly  involved,  the  Privileges  Committee  reached  a  

conclusion that the conduct of the six petitioners is in breach  

of the privilege of the house. The proceedings of the Privileges  

Committee make repeated references to video recording.  

34.  FIR  No.  Cr.  No.  09/2015 dated  20.2.2015 filed  by  Mr.  

Vijayan, a special sub-inspector deployed in the Tamil Nadu  

legislative  assembly,  which is  one of  the  pieces  of  evidence  

used against the petitioners, mentions the names of only two  

of the six petitioners (Petitioner No. 4 and Petitioner No.5). In  

his  FIR,  Mr.  Vijayan  makes  an omnibus  statement  that  all  

members  belonging  to  the  DMDK  party  rushed  to  the  

Speaker’s chair in an unruly fashion and were ordered to be  

sent out of the house for that reason.  He then proceeds to  

specifically  state  the  two  accused  (Petitioner  No.  4  and  

Petitioner No.5) attacked him.  

35.  In  this  light,  the  question  is:   How  did  the  Privileges  

Committee  identify  six  members  as  having  breached  the  

privilege  of  the  house?  From  the  minutes  of  the  Privileges  

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Committee meeting, it  is clear that the only  material relied  

upon by the Committee to identify all the six petitioners and  

recommend action against them for breach of privilege was the  

video recording.  

36. The petitioners’ case, though not elegantly pleaded, is that  

they have not been granted the opportunity to watch the video  

recording or comment on the content and authenticity of the  

video. In the questions of law raised in the writ petition, the  

petitioners raised the question of “Whether denial of the right  

to comment on the video material would amount to breach of  

natural justice?”  In the grounds taken by the petitioners, they  

pray for the writ to be allowed “because on the question of  

authenticity of videography and as to how far it can be pressed  

into service, further, the respondents never gave a copy of the  

alleged videography to the petitioner”.  

37.  It  is  the  case  of  the  respondents,  that  the  disciplinary  

proceedings  are  not  based solely  on the  video clippings.  At  

para 76 of the counter affidavit, it is stated that the violent  

incidents on 19.2.2015 had been witnessed by all Members in  

the  House  including  those  in  the  Privileges  Committee  and  

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thus  the  videograph  is  not  the  sole  basis  for  award  of  

punishment.14  

38. The minutes of the Privileges Committee meeting clearly  

show  that  the  video-recording  played  an  important  role  in  

arriving at the conclusions that the Privileges Committee did.  

The video recording was specifically shown to the members of  

the  Privileges  Committee  “since  some  of  them  would  have  

forgot only the video recordings were shown again”15.  Giving  

some allowance for bad translation - the said sentence only  

indicates that the Committee was not willing to rely solely on  

the memory of the members of the Committee. At the risk of  

repetition, we reiterate that the video recording served as the  

common  factual  platform for  all  the  members  of  the  

Privileges Committee, from where the members discussed the  

actions of the six petitioners, and recommended action against  

them.  

14Even at Para 70 of the counter affidavit, the respondents assert that as the incident on 19.2.2015 happened   inside the assembly chamber, the speaker and other present members were eye-witnesses to the incident,   and that the nature of the incident was known to all members in the house, including the members of the   privileges committee.  15  See F/.N 12.

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39. This Court in Raja Ram Pal case, while dealing with the  

question  of  the  rules  of  natural  justice  in  the  context  of  

proceedings in the legislative bodies, held as follows:

“As already noted the scope of judicial review in these matters is restricted  and limited. Regarding non-grant of reasonable opportunity, we reiterate  what  was  recently  held  in  Jagjit  Singh v.  State  of  Haryana that  the  principles of natural justice are not immutable but are flexible; they cannot  be  cast  in  a  rigid  mould  and  put  in  a  straitjacket  and  the  compliance  therewith  has  to  be  considered  in  the  facts  and circumstances  of  each  case.”16

40. In  Jagjit Singh v.  State of Haryana,  (2006) 11 SCC 1,  

this  Court  discussed  the  scope  of  the  principles  of  natural  

justice  in  the  context  of  the  proceedings  in  the  legislature  

(action under Xth Schedule of the Constitution) and held thus:

“Undoubtedly, the proceedings before the Speaker which is also a tribunal  albeit of a different nature have to be conducted in a fair manner and by  complying with the principles of natural justice. However, the principles  of  natural  justice  cannot  be  placed in  a  straitjacket.  These  are  flexible  rules. Their applicability is determined on the facts of each case…”17

41.  The  principles  of  natural  justice  require  that  the  

petitioners ought to have been granted an opportunity to see  

the  video  recording.  Perhaps  they  might  have  had  an  

opportunity  to  explain  why  the  video  recording  does  not  

contain  any  evidence/material  for  recommending  action  

16 Extracted portion is a part of Paragraph 446 in the judgment.  17 The extracted portion is a part of paragraph 44 in the judgment.  

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against  all  or  some  of  them  or  to  explain  that  the  video  

recording should have been interpreted differently.  

42. The Privileges Committee should have necessarily offered  

this opportunity, in order to make the process adopted by it  

compliant with the requirements of Article 14. Petitioner No. 1  

in  his  reply  letter  to  the  notice  issued  by  the  Privileges  

Committee seeks permission to give further explanation when  

the video recording is provided to him. The Petitioner No. 3 in  

his  reply  letter  states  that  he  believes  his  version  of  his  

conduct  will  be  proven  by  the  video  recording.  The  other  

petitioners do not mention the video recording in their reply  

letters. However, it is not the petitioners’ burden to request for  

a copy of the video recording. It is the legal obligation of the  

Privileges  Committee  to  ensure  that  a  copy  of  the  video  

recording is supplied to the petitioners in order to satisfy the  

requirements of the principles of natural justice   The failure  

to  supply  a  copy  of  the  video  recording  or  affording  an  

opportunity to the petitioners to view the video recording relied  

upon  by  the  committee  in  our  view  clearly  resulted  in  the  

violation of the principles of natural justice i.e. a denial of a  

reasonable opportunity to meet the case. We, therefore, have  

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no  option  but  to  set  aside  the  impugned  resolution  dated  

31.03.2015 passed in the Tamil  Nadu Legislative  Assembly.  

The same is accordingly set aside.   

43. The consequence of setting aside the impugned resolution  

of  the  Tamil  Nadu Legislative  Assembly  dated  31.3.2015 is  

that  the  salary  and  other  benefits  incidental  to  the  

membership  of  the  assembly  stand  restored  to  the  six  

petitioners herein.  

44. In view of the conclusion recorded above, we see no need  

to  deal  with  the  other  submissions  advanced  by  the  

petitioners.  

45. The writ petition is allowed as indicated above.  

….………………………….J.                                                       (J. Chelameswar)

…….……………………….J.   (Abhay Manohar Sapre)

New Delhi; February 12, 2016.   

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