Madras High Court
The Secretary vs P.Sivakumar @ Thayagam Kavi on 31 July, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.A.Nos.701 of 2021 etc., and batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.07.2024
PRONOUNCED ON : 31.07.2024
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
W.A.Nos.701, 709, 711, 712, 719, 721, 723, 725, 726, 729, 733, 734, 735,
739, 740, 742, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755,
756, 757, 758, 759, 760, 763, 764 & 766 of 2021
and
C.M.P.Nos.3891, 3916, 3920, 3924, 3937, 3942, 3949, 3953, 3955, 3960,
3986, 3990, 3994, 4030, 4035, 4039, 4044, 4045, 4046, 4048, 4049, 4050,
4053, 4055, 4056, 4057, 4058, 4060, 4061, 4062, 4063, 4064, 4066, 4083,
4085, 4089 of 2021
[W.A.No.701 of 2021 and
C.M.P.No.3891 of 2021]
The Secretary
Tamilnadu Legislative Assembly,
Fort St. George, Chennai-600009 ... Appellant
Vs.
1. P.Sivakumar @ Thayagam Kavi
Member Of Legislative Assembly,
Thiru-Vi-Ka Nagar Constituency
Tamilnadu Legislative Assembly
Chennai-600009
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2. The Speaker,
Tamilnadu Legislative Assembly,
Fort St. George, Chennai-600009
3. Privileges Committee,
Rep. By Its Chairman,
Tamilnadu Legislative Assembly,
Fort St. George,
Chennai-600009
4. Mr.V.Jayaraman,
Chairman,
Privileges Committee,
Tamilnadu Legislative Assembly,
Fort St. George, Chennai-600009 ... Respondents
Prayer :- Writ Appeal filed under Clause 15 of Letters Patent, praying to
set aside the Judgment dated 10.02.2021 passed in WP No.13193 of 2020.
For Appellant in
W.A.Nos.701, 709,
711, 712, 719, 721,
723, 725, 726, 729,
733, 734, 735, 739,
740, 742, 744
& 747 of 2021
And
For Appellants in
W.A.Nos.745, 746,
748 to 760, 763,
764 & 766 of 2021 : Mr.P.S.Raman, Advocate General
assisted by Mr.A.Selvendran,
Special Government Pleader.
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(1) For Respondents in
W.A.Nos.701, 709, 711, 712,
719, 721,723, 725, 726, 729,
733 to 735, 739, 740,742, 744 to
760, 763, 764 & 766 of 2021 : Mr.N.R.Elango, Senior Counsel for
M/s.Manuraj (for R1)
(2) For Respondents in
W.A.No.701, 709, 711, 712,
719, 721, 723, 725, 726, 729,
733, 734, 735, 739, 740,
742, 744 & 747 of 2021 : Mr.V.Ragavachari, Senior Counsel
for Mr.I.S.Inbadurai and
Mr.P.S.Siva Shanmugasundaram
(for R4)
(3) For Respondents in
W.A.Nos.745, 746, 748 to 760,
763, 764 &766 of 2021 : Mr.P.S.Raman, Advocate General
assisted by Mr.A.Selvendran,
Special Government Pleader (for R3)
(4) For Respondents in
W.A.Nos.745, 746,748 to 760,
763, 764 & 766 of 2021 : Mr.A.Selvendran,
Special Government Pleader (for R2).
(5) For Respondents in
W.A.Nos.701, 709, 711,712,
719, 721, 723, 725,726, 729,
733, 734, 735,739, 740,
742, 744& 747 of 2021 : Mr.A.Selvendran,
Special Government Pleader
(for R2 & R3)
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COMMON JUDGEMENT
S.M.Subramaniam J.
TABLE OF CONTENTS:
S.No. Contents Paragraph Nos.
I PRELUDE 1 to 8
II CONTENTIONS ON BEHALF OF THE 9 to 14
PARTIES
III DISCUSSIONS 15 to 52
PREMATURE CHALLENGE OF THE 15 to 35
a SHOW CAUSE NOTICE
b IMMUNITY TO THE LEGISLATIVE 36 to 38
ASSEMBLY PROCEEDINGS OF
PROCEDURAL IRREGULARITIES
c MECHANISM TO REGULATE THE 39 to 42
SMOOTH FUNCTIONING OF THE
HOUSE
d THE POWERS OF THE LEGISLATIVE 43 to 43
ASSEMBLY TO REGULATE ITS OWN
PROCEDURE
e MALICE AS A GROUND FOR 44 to 49
QUASHING SHOW CAUSE NOTICE
f PROVISIONS UNDER WHICH SHOW 50 to 52
CAUSE NOTICE WAS ISSUED
IV CONCLUSION 53 to 63
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(I) PRELUDE:
The Show Cause Notice, originally issued by the Secretary Tamil
Nadu Legislative Assembly, to the then members of the opposition party,
were previously under challenge and the Division Bench of this Court,
through common order dated 25.08.2020, set aside the Show Cause Notice,
granting liberty to the Tamil Nadu Legislative Assembly to issue fresh
Notice in compliance with the Tamil Nadu Legislative Assembly Rules.
2. Consequently, second Show Cause Notices (herein after referred as
'SCN') were issued to the respondents in the present writ appeals on
07.09.2020, on the issue of breach of privileges calling upon them to submit
their respective explanations. The second 'SCN' issued to the respondents
herein were under challenge before the Writ Court. The Writ Court allowed
the writ petitions by setting aside the 'SCN' issued to the respondents, which
resulted in institution of present intra-court appeals by the Secretary, Tamil
Nadu Legislative Assembly.
3. The learned Advocate General, Mr.P.S.Raman contended that the
'SCN' became lapsed on account of expiry of the term of the Assembly in the
year 2021. Therefore, the 'SCN' need not be proceeded with. This Court
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intervened on the ground that the 'SCN' had been issued by the Privilege
Committee and admittedly the proceedings have not reached finality.
4. The question arises, whether the High Court, in exercise of the
powers of judicial review, can set aside the 'SCN' issued by the Legislative
Assembly on the issues relating to breach of Privileges of the House? The
learned Advocate General, with all fairness, would submit that un-concluded
proceedings of this nature cannot be set aside by the High Courts. It is the
'SCN' issued calling upon explanations from the members on the issues
relating to breach of privileges and it must be concluded in all respects.
5. The power of judicial review of the High Court, its scope, is the
issue to be deliberated by this Court. The relevance and importance of
concluding the issues relating to breach of privileges of the House, under the
Constitutional perspective, is to be considered by this Court. Undoubtedly,
setting aside the 'SCN' issued by the Privilege Committee of the Tamil Nadu
Legislative Assembly would set a bad precedent and result in opening of an
avenue to many similarly placed persons to challenge 'SCN' relating to
breach of privileges of the House by way of writ petition before the High
Courts. In the context of the above views expressed by this Court, the
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learned Advocate General would submit that this Court may remand the
matter back to the Legislative Assembly for consideration and to take an
appropriate decision. Therefore, this Court has to necessarily adjudicate
certain important issues involved in the impugned 'SCN' and the impugned
writ order. The legality of the impugned writ order is to be considered by this
Court in order to enumerate the legal position regarding breach of privilege
proceedings initiated by the Legislative Assembly.
6. The 'SCN' dated 07.09.2020 deliberates the following issues:
(a) Showing Gutka sachets without permission of the Hon'ble Speaker
(b) Interrupting the smooth proceedings of the Assembly
(c) Setting a bad precedent
(d) Creating utter commotion and chaos resulting in disturbing the
Assembly proceedings.
7. On four grounds the second 'SCN' was issued to 19 then members
of the Assembly. Instead of submitting explanations to the House, the
members have chosen to file writ petitions. The learned Single Judge set
aside the 'SCN' and therefore, it becomes necessary for this Court to
deliberate the grounds on which the 'SCN' are set aside.
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8. With reference to the grounds raised for issuance of 'SCN', it is
relevant to look into Chapter XIV, General Rules of Procedures, the Tamil
Nadu Legislative Assembly Rules. Rules 87 and 92 are extracted herein:
“87. A member present at a sitting of the House and not
speaking-
(i) shall not read any newspaper except in connection
with the business of the House;
(ii) shall maintain silence;
(iii) shall not interrupt a member while speaking by
disorderly expressions or noise or in any other disorderly
manner;
(iv) shall bow to the Chair when taking or leaving his
seat;
(v) shall not pass between the Chair and any member who
is speaking;
(vi) shall not stand in the House when the Speaker is
addressing the House;
(vii) shall not obstruct the proceedings hiss or interrupt
and avoid making running commentaries when speeches are
being made in the House;
(viii) shall not while speaking make any reference to the
strangers in any of the galleries;
(ix) shall not applaud when a stranger enters any of the
galleries unless a reference is made to his presence from the
Chair; and
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(x) Members shall not carry any Mobile Phones into the
House.”
“92. A member, while speaking must not-
(i) give his opinion about or refer to any matter on which
a judicial decision is pending;
(ii) make a personal charge against a member;
(iii) use offensive expression about the conduct of proceedings of
the Parliament or any State Legislature;
(iv) reflect on any decision of the House except on a
motion for rescinding it;
(v) reflect upon the conduct of the Speaker, except on a
substantive motion for his removal;
(vi) reflect upon the office of the Speaker or attribute any
motive to the Legislature Secretariat;
(vii) reflect upon the conduct of President or any
Governor or any Court of Justice or use the Governor's or
President's name for the purpose of influencing a debate;
(viii) utter treasonable, seditious, defamatory or
unparliamentary words; or
(ix) use his right of speech for the purpose of obstructing
the business of the Assembly.”
(II) CONTENTIONS ON BEHALF OF THE PARTIES:
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9. The learned Advocate General, Mr.P.S.Raman, appearing on behalf
of the appellants would submit that the Show Cause Notice proceedings
became lapsed on account of expiry of the term of the Assembly and
therefore, there is nothing to proceed. However, the learned Advocate
General admitted the fact that disciplinary matters may not die on account of
the expiry of the term of the Assembly. In this context, this Court debated the
issue with the learned Advocate General who in turn, relying on the full
Bench Judgement of the Madras High Court and the judgement of the
Hon'ble Supreme Court in the case of Amarinder Singh vs. Special
Committee, Punjab Vidhan Sabha1, formed an opinion that the disciplinary
proceedings initiated by the Privilege Committee against the members,
would not lapse on account of expiry of the term of the Assembly.
10. Mr.N.R.Elango, learned Senior Counsel appearing on behalf of
the contesting respondents / writ petitioners would contend that the
proceedings became lapsed. There is no scope for continuance of the Show
Cause Notice proceedings in the present case. Mr.N.R.Elango relied on
certain observations made by the Full Bench of the Madras High Court in the
case of A.M.Paulraj vs. The Speaker Tamil Nadu Legislative Assembly &
1 2010 (6) SCC 113
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Ors.1. The observations relied on by Mr.N.R.Elango are that the entire
business of the Assembly is treated to be lapsed on expiry of the term.
11. The case of Amrindar Singh is relied on so as to emphasise that
the parliamentary proceedings would lapse on account of expiry of its term.
Paragraph no.71 of the judgement in Amrindar Singh's case, provides the
literal meaning of “dissolution” as listed in Black's law dictionary. In
paragraph no.72, the effect of dissolution has been discussed and thereafter,
the business before a committee has been considered by the Hon'ble Supreme
Court. It is observed that “all business pending before Parliamentary
Committees of Lok Sabha lapse on dissolution of Lok Sabha. Committees
themselves stand dissolved on dissolution of Lok Sabha. However, a
committee which is unable to complete its work before the dissolution of a
House may report to the House to that effect, in which case, any preliminary
memorandum or note that the committee may have prepared or any evidence
that it may have taken is made available to the new committee when
appointed.”
1 AIR 1986 Madras 248
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This principle has also been affirmed in the practice and procedure of
Parliament by M.N.Kaul and S.L.Shakdher.
12. Relying on the above judgements and the practice and procedure
of Parliament, Mr.N.R.Elango re-emphasised that the Show Cause Notice
proceedings became lapsed and there is nothing to proceed with and
therefore, the writ appeals are to be rejected.
13. Mr.V.Raghavachari, learned Senior Counsel appearing on behalf
of Mr.V.Jayaraman, / 4th respondent would oppose that the disciplinary
matters initiated against the members would not lapse even after the expiry
of the term of the Assembly. Mr.V.Raghavachari raised a question in the
event of committing indiscipline, misconduct or violation of Assembly Rules
during the end of the Assembly tenure, Can such conducts be condoned or
can such member be exonerated from the proceedings of the Privilege
Committee? Carving out certain circumstances, which may arise during the
end of the term of the Assembly and certain misconducts, indiscipline or
violations, if any committed by the member, at no circumstances be
condoned nor such member can be exonerated without subjecting the issue to
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undergo the process of inquiry through Privilege Committee under the
Assembly Rules. Even the A.M.Paulraj's case supports the proposition that
disciplinary matter will not lapse on account of expiry of the term of
assembly. The facts in the Amrindar Singh's case are distinguishable and in
the present case, Show Cause Notice itself is under challenge.
14. Mr.V.Raghavachari would contend that if Show Cause Notice
was issued duly in compliance with the Assembly Rules by the Privilege
Committee and on account of the lis pendency before this Court, the
committee was not in a position to conclude the proceedings. Therefore, the
period in which the litigations were pending before the High Court, cannot
be a ground to claim that the proceedings are lapsed. Breach of privilege
proceedings, initiated under the Assembly Rules, must reach its conclusion
and therefore, the matter is to be remanded back to the Privilege Committee
for deciding the issues in accordance with law.
(III) DISCUSSIONS :
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(a) Premature challenge of the Show Cause Notice:
15. The order passed by the learned Single Judge suffers from absence
of consideration of material facts and contentions. The Order is patently
erroneous as the Order failed to consider the argument of premature filing of
the Writ Petition at the stage of issuance of 'SCN' itself. It is pertinent to note
that the 'SCN' was issued by the Privilege Committee which is not the final
authority in itself but is only a recommending authority. The Committee is
only empowered to file a report based on its recommendation and that is
subject to further deliberations by the Assembly. So, in essence they have
only called for an explanation for the alleged breach of privilege in the
Legislative Assembly.
16. The present 'SCN' was issued subsequent to the order of the
Hon'ble Division Bench of this Court in its order dated 25.08.2020 which has
clearly held as follows:
“71. What we intend to clarify is that carrying of Gutkha
sachets simpliciter may or may not be a breach of privilege,
which is still open to examination by the Committee of
Privileges, but to hold that the passage of the Gutkha sachets
inside the House amounted to transportation or storage or
possession for consumption is certainly not made out on the
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facts, as are admitted between the parties and also from the
Minutes recorded by the Speaker on 19.7.2017 as well as
from a perusal of the impugned notice dated 28.8.2017. A
perusal of the notification dated 23.5.2017 would leave no
room for doubt that the words used are ban of manufacture,
storage, sale or distribution of Pan Masala. The reason
given in the preamble of the notification is that since Gutkha
and Pan Masala are food products which are supposed to be
used by keeping it inside the mouth and chewing it, the same
becomes part of the human digestive system, as the
chemicals go into the saliva while chewing and
consequently, its consumption may endanger human health
and well-being. It is for this reason and for the well-being of
the current and future generations that prohibition of
manufacture, storage, transport, distribution or sale has
been imposed. As already noted above, the petitioners were
not carrying out any such activity with the intention of
promoting chewing and consumption of Pan Masala, but
were rather raising their voice in support of the notification
and for its rigorous implementation. As explained in the
case of Bijaya Kumar Agarwala (supra), every possession is
not storage, nor can it amount to a transport at least in
terms of the notification on the facts of the present case, as it
is not the case of the respondents that Gutkha was being
brought inside the House for consumption. The words used
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in the notification, in our opinion, have to take colour from
the purpose and the conduct of the petitioners, in order to
construe as to whether such an act will qualify as
prohibition or not. The intendment in the notification is to
ban trade of Gutkha and not to ban the freedom of speech, if
it is utilized for the purpose of promoting the ban. The
notification entails penal consequences and, therefore, it has
to be construed strictly to achieve the purpose of the
notification, namely, the ultimate protection of human life
through a ban on its manufacture, sale, etc.”
17. The learned Single Judge rejected the contention of premature
challenge to the 'SCN' on the ground that the matter was already agitated and
dealt with by the Hon'ble Division Bench of this Court and that it cannot be
re-agitated. This observation is unacceptable as the present notice under
challenge was issued consequent to the Judgement of the Hon'ble Division
Bench of this Court.
18. The learned Single Judge has specifically extracted and relied on
only the second portion of paragraph 71 whereas the entire portion of
paragraph 71 must be read in whole to comprehend the observations of the
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Hon'ble Division Bench. The Bench has clearly clarified that the aspect of
carrying gutka sachets may or may not be a breach of privilege and the
Hon'ble Bench did not venture into that argument, instead they confined
themselves only to the question of interpretation of the notification dated
23.05.2017. This can be understood from the Directions issued by the
Hon'ble Division Bench. Further the Hon'ble Bench has explicitly left it to
the Committee of Privileges to deliberate upon the issue in case it is of the
opinion that breach has been committed. This can be clearly understood from
the Directions issued by the Hon'ble Division Bench, and the relevant
portion is as extracted below:
“106. Having considered all the submissions raised
and in view of what has been stated herein above, our
conclusions are:
i. The issuance of the impugned notice of breach of
privilege dated 28.8.2017, based on the incident dated
19.7.2017, 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 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
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sachets and photographs as being violative of any
prohibitory law particularly the Notification dated
23.5.2017.
ii. Our conclusion aforesaid is confined only to the
interpretation of the notification dated 23.5.2017 vis-a-vis
the specific conduct of the petitioners inside the House that
was made the basis for the issuance of notice of breach of
privilege and is not to be construed as an interpretation
regarding a prosecution or trial of any offence before a
competent forum arising out of the notification dated
23.5.2017.
iii. 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.”
19. Furthermore, the question of breach of privilege was not
deliberated upon by the Division Bench and was left to the wisdom of the
Committee of Privileges. This was expressly clarified by the Hon'ble Bench
in paragraph no. 63 of its Order:
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"63. The second question as to whether otherwise there
was a breach of privilege or not is a matter, in our opinion,
within the realm of the House, for which the Privileges
Committee can proceed to answer the same. This may also
involve an issue of propriety or impropriety of diction or of
conduct that may be just unsuitable, unseemly or unbecoming
and may not cross barriers of the principles of breach of
privilege. The question of pure illegality can however be
examined by the Court for the reasons set out herein under".
20. This has been further reaffirmed in its findings as follows:
"105. (iii) The question of propriety, impropriety or
otherwise assessing the conduct of the breach of privilege is
within the powers of the House, as explained in paragraph 63
and other observations herein above".
21. In the preceding paragraphs of the Hon'ble Division Bench Order,
it clearly states that a motion of breach of privilege is only to maintain the
dignity of the House and uphold its high traditions in the conduct inside the
House and to constitutionally protect its Members and that the alleged breach
is an issue to be examined by the Committee of Privileges.
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22. The learned Single Judge brushed aside the argument of premature
challenge of 'SCN' by invoking the reasoning that the Hon'ble Division
Bench has already dealt with this question. But nowhere in its order has the
Division Bench ascribed the proposition of premature quashing of 'SCN'. To
the contrary, the Division Bench by relying upon various Judgements of the
Hon'ble Supreme Court had in essence held that premature challenge at the
stage of issuance of 'SCN' must not be entertained.
23. In the case of L.N.Phulkan and Ors v. Mahendra Mohan
Choudhury and Ors.1, it was observed that:
“20. In the above case it was clearly laid down that
even if the powers and privileges claimed and the immunities
conferred by Article 194(3) of the Constitution are
repugnant to the fundamental right, they will not be void to
the extent of the repugnancy. The contention raised in this
case on behalf of the Petitioner was that he had a
fundamental right under Article 19 of the Constitution and
by issuing a notice calling upon him to show cause as to why
he should not be dealt with for the breach of the privilege of
the House his fundamental right has been affected. This was
repelled. Even in the majority opinion of the Supreme Court
1 AIR 1965 Assam and Nagaland 74
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it has been held that the observations in the case of AIR
1959 SC 395 were confined to the case of a fundamental
right under Article 19 of the Constitution. Once it is found
that the House has got a right to deal with its own
contempt or breach of privilege, the notice issued by the
Privileges Committee cannot be said to be without
jurisdiction and thus the Petitioners will not be entitled to
any writ of prohibition. In our opinion thus the Petitioners
are not entitled to any relief at this stage of the proceedings
both on the ground that the quashing of the notice will
amount to the quashing of the proceedings of the House
which the courts of the land are precluded from doing in
view of the provisions of Articles 212 and 194(2) of the
Constitution and also on the ground that the House having
the power to take action for the breach of its privileges, it
must be left to the House itself to determine whether there
has in fact been any breach of its privileges and the court
will not at this stage interfere with the exercise of such a
power by the Privileges Committee. In this view of the
matter it is not necessary for us to go into the question
whether the report or the Commissioner in the
circumstances of the present case can or cannot be said to
be a proceeding or a document of the House and further
whether on the face of it the publication constitutes the
contempt of the House or not.
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13. Regarding the question raised as to the right of
the Petitioners to approach this Court under Article 226 of
the Constitution it is sufficient to point out that if we had
held that the notice was without jurisdiction, obviously the
Petitioners against whom the notice was issued, had every
right to approach this Court under Article 226 of the
Constitution for the quashing of the proceedings arising
out of the said notice. In the result, therefore, we reject
these petitions. But in the circumstances the parties will bear
their own costs.?”
24. It is noteworthy that the Hon'ble Supreme Court on multiple
occasions has clearly laid out the policy of non-interference by Courts at the
time of issuance of 'SCN'. Unless there is a specific ground of Jurisdictional
error, the Courts normally refrain from interference at the stage of issuance
of 'SCN'.
25. The learned Single Judge ought to have deliberated on the issue of
premature challenge of the 'SCN' but instead had refrained from discussing
this contention and had concluded that the same contention was raised before
the Division Bench of this Court and that the question of maintainability
cannot be re-agitated. This reasoning is clearly unacceptable as;
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(A) A fresh cause of action has arisen through a new notice being
issued subsequent to the Division Bench Judgement which has to be
dealt with afresh. The order of the Hon'ble Division Bench is confined
to the issuance of 1st notice and it was only consequent to the orders
of the Bench that the fresh notice has been issued. Hence the matter
needed a fresh consideration on the point of premature challenge of
'SCN'.
(B) Further, The Division Bench did not turn down the ground of
premature challenge to 'SCN' but has rather clearly stated that the
Courts cannot interfere at the stage of issuance of 'SCN'.
(C) The Division Bench only deliberated on the issue of substantive
illegality and not procedural irregularity. The Scope of judicial review
extends only to the acts of illegality inside the Assembly and does not
extend to the acts of procedural irregularity.
The aforementioned vital points have not been taken into consideration by
the learned Single Judge hence warranting the interference of this Court.
26. More specifically, in issues pertaining to the conduct of Members
inside the Assembly, where the scope of Judicial review is to be applied
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sparingly by virtue of the wordings in Articles 212 and 194(3) of the
Constitution of India, the interference of the Courts at the very initial stage
of issuance of 'SCN' is unwarranted.
27. The Hon'ble Division Bench of this Court in paragraph no.48 of its
Order dated 25.08.2020 has elucidated the question of Judicial intervention
at the stage of issuance of 'SCN' as follows:
“48. Having considered the aforesaid
judgments, we find the ratio thereof appears to be that
unless there is a pure question of law involved, then in
a matter which may involve a question of fact and law,
an interference by the High Court under Article 226 of
the Constitution of India would be a premature
exercise, as held in the case of A.Kamaraj (supra). It
has also been held that a writ of prohibition would not
lie over a subject matter, where the authority under the
Rules has the jurisdiction. In Raja Ram Pal
(supra), the Constitution Bench of the Apex Court did
make an observation that if it is a question of
procedure, it would be premature to consider the issue,
as the Committee of Privileges is yet to conclude its
proceedings. It was then further held in the case of
Ratna Gupta (supra), that it would be premature to
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presume that the report of the Privileges Committee in
all probability would be adverse to the petitioners and,
therefore, interference is not called for. Finally, in the
case of Kihoto Hollohan (supra) the exceptions carved
out was with regard to interference in matters of
imminent interlocutory disqualifications or
suspensions, which may have grave, immediate and
irreversible repercussions and consequences.”
28. The Bench further relying on the judgement of the Hon'ble
Supreme Court in Raja Ram Pal case, had concluded the importance of
Judicial restraint in matters of premature challenge to 'SCN'. More so, due to
the Constitutional bar imposed under Article 212 whereby it prohibits the
validity of any proceedings in legislature from being called in question in a
Court merely on the ground of irregularity of procedure.
29. Hence the learned Single Judge had erred in misinterpreting the
order of the Hon'ble Division Bench which did not affirm the view of
interference of Courts at the stage of 'SCN' as valid but rather had held that
unless there is a pure question of law involved, then in a matter which may
involve a question of fact and law, an interference by the High Court under
Article 226 of the Constitution of India would be a premature exercise.
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Hence the Hon'ble Bench only examined the issue of substantive illegality
and did not go into the issue of procedural irregularity.
30. With respect to writ petitions challenging 'SCN', the Hon'ble
Supreme Court has laid down the principles of non-interference of Courts of
Law at the stage of issuance of 'SCN' itself and the said principle can be
extended to the 'SCN' issued in breach of privilege procedures also.
31. This contention is further reaffirmed in a catena of judgments. The
Hon'ble Supreme Court in the case of Special Director and Another vs.
Mohd. Ghulam Ghose and Another1, held that:
“5. This Court in a large number of cases has
deprecated the practice of the High Courts entertaining
writ petitions questioning legality of the SCNs stalling
enquiries as proposed and retarding investigative process
to find actual facts with the participation and in the
presence of the parties. Unless, the High Court is satisfied
that the SCN was totally non est in the eye of law for
absolute want of jurisdiction of the authority to even
investigate into facts, writ petitions should not be
entertained for the mere asking and as a matter of routine,
1 (2004) 3 SCC 440
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and the writ petitioner should invariably be directed to
respond to the SCN and take all stands highlighted in the
writ petition. Whether the SCN was founded on any legal
premises is a jurisdictional issue which can even be urged
by the recipient of the notice and such issues also can be
adjudicated by the authority issuing the very notice
initially, before the aggrieved could approach the Court.
Further, when the Court passes an interim order it should
be careful to see that the statutory functionaries specially
and specifically constituted for the purpose are not
denuded of powers and authority to initially decide the
matter and ensure that ultimate relief which may or may
not be finally granted in the writ petition is accorded to the
writ petitioner even at the threshold by the interim
protection, not granted.”
32. Also in the case of Union of India and Another vs. Kunisetty
Satyanarayana1, the Hon'ble Supreme Court reasoned out as to why a Writ
Petition is normally not entertained against a 'SCN'. The relevant portion of
the Judgement is extracted below:
“14. The reason why ordinarily a writ petition
should not be entertained against a mere show-cause
1 (2006) 12 SCC 28
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notice or charge-sheet is that at that stage the writ
petition may be held to be premature. A mere charge-
sheet or show-cause notice does not give rise to any cause
of action, because it does not amount to an adverse order
which affects the rights of any party unless the same has
been issued by a person having no jurisdiction to do so. It
is quite possible that after considering the reply to the
show-cause notice or after holding an enquiry the
authority concerned may drop the proceedings and/or
hold that the charges are not established. It is well settled
that a writ petition lies when some right of any party is
infringed. A mere show-cause notice or charge-sheet does
not infringe the right of anyone. It is only when a final
order imposing some punishment or otherwise adversely
affecting a party is passed, that the said party can be said
to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction
and hence such discretion under Article 226 should not
ordinarily be exercised by quashing a show-cause notice
or charge-sheet.
16. No doubt, in some very rare and exceptional
cases the High Court can quash a charge-sheet or show-
cause notice if it is found to be wholly without jurisdiction
or for some other reason if it is wholly illegal. However,
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ordinarily the High Court should not interfere in such a
matter.”
33. On the question of want of Jurisdiction to issue the Notice, it is
imperative to note that the earlier notice was issued for the act of bringing
prohibited items and exhibiting them in the Assembly whereas the second
notice was issued for the purpose of protecting Discipline, Decorum and
Dignity of the Assembly in tune with the laid down standards for conduct of
the Assembly. This is a matter of procedure which is clearly within the
powers of the Assembly. This is an aspect of procedure adopted for conduct
of the House which is a matter not to be interfered with by the Courts as
enumerated in Article 212 of the Constitution of India.
34. Article 194(3) - In other respects, the powers, privileges and
immunities of a House of the Legislature of a State, and of the members and
the committees of a House of such Legislature, shall be such as may from
time to time be defined by the Legislature by law, and, until so defined, shall
be those of that House and of its members and committees immediately
before the coming into force of Section 26 of the Constitution forty-fourth
Amendment) Act, 1978.
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35. Art. 212. Courts not to inquire into proceedings of the
Legislature
(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 the Legislature shall be subject to
the jurisdiction of any court in respect of the exercise by him of those
powers.
(b) Immunity to the Legislative Assembly proceedings on procedural
irregularities:
36. Article 212(2) of the Constitution of India confers immunity on the
Officers and Members of the Legislature in whom powers are vested by or
under the Constitution for regulating procedure, conduct of business,
maintaining order, in the legislature from being subject to the jurisdiction of
the Court in respect of exercise by him of those powers. So the Courts cannot
call in question a mere irregularity of procedure inside the Assembly but
there must be an illegality to warrant interference. Hence since the 'SCN' in
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question is purely on the question of procedure to be followed inside the
Assembly, the 'SCN' does not suffer from want of Jurisdiction and the Courts
under such circumstances cannot interfere in the normal course at the
premature stage.
37. The present impugned 'SCN' dated 07.09.2020 deliberates on the
following issues:
(a) Showing Gutka sachets without permission of the Hon.Speaker
(b) Interrupting the smooth proceedings of the Assembly
(c) Setting a bad precedent
(d) Creating utter commotion and chaos resulting in disturbing the
Assembly proceedings.
38. A perusal of the above alleged occurrences reveal that these are
matters of pure procedure with reference to the conduct of the Members
inside the House and the procedures to be followed by the Members. These
questions are to be deliberated before the Committee constituted and in the
event of illegality in the order passed by the Committee, the Appellants are
free to approach the Courts of law for appropriate remedies. But instead, to
approach the Court in the initial stage of calling for explanation vide 'SCN' is
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premature and cannot be entertained in accordance with the orders of the
Hon'ble Supreme Court in myriad cases.
(c) Mechanism to regulate the smooth functioning of the House:
39. The privileges inside the House was introduced to prevent any
undue interference in the working of the House and thereby enable the
Members to function efficiently without unreasonable impediment.
40. The learned Single Judge has erred by imputing the Members of
the Legislature in becoming Judges in their own cause. The law on the Rules
of Legislative Assembly discusses the Constitution of the Privilege
Committee. Rule 227 of the Tamil Nadu Legislative Assembly Rules read as
follows:
“227.(1) A Committee of Privileges shall be constituted
which will consist of the Leader of the House and the Leader
of the Opposition and the Deputy Speaker who shall be
Members ex-officio and fourteen other Members to be
elected by the Assembly on a date to be fixed by the Speaker
according to the principle of proportional representation by
means of the single transferable vote and in accordance with
the regulations framed in this behalf by the Speaker.
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(2) The Members of the Committee so elected will
cease to hold office at the end of each financial year but any
member shall be eligible for re-election. There shall be a
fresh election before the end of the financial year for
constituting the Committee for the ensuing financial year. If
under any circumstances such an election is not held the
existing members of the Committee will continue to hold
office until new members are elected.
(3) The Deputy Speaker shall be the ex-officio
Chairman of the Committee.
(4) In order to constitute a meeting of the Committee
the quorum shall be five including the Chairman or the
member presiding”
41. Unless the Rule per se is under challenge, the Court cannot ascribe
a mark of bias to the Rule without any valid reasons. The questions of
powers, privileges and immunities of the Legislature and its members are
dealt with under Article 194(3), whereby, it is the privilege of the House to
construe the relevant portion of Article 194(3) and determine for itself, what
powers, privileges and immunities are as under:
“194. Powers, Privileges, etc., of the House of
Legislatures and of the members and committees
thereof-(1).........
(2) ............
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(3) In other respects, the powers, privileges and
immunities of a House of the Legislature of a State,
and of the members and the committees of a House of
such Legislature, shall be such as may from time to
time be defined by the Legislature by law, and, until so
defined, [shall be those of that House and its members
and committees immediately before the coming into
force of Section 26 of the Constitution (Forty-fourth
Amendment) Act, 1978].”
Rule 227 having derived power from Article 194(3) cannot be questioned
without sufficient reasoning.
42. Further it is relevant to place reliance on Article 194(1) of the
Constitution which states that "(1) - Subject to the provision 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." It is made clear from the above provision that the freedom of speech
in the legislature of every State is subject to the provisions of the
Constitution and to the Rules and the standing orders. The rules and standing
orders regulate the procedure of the legislature.
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(d) The Powers of the Legislative Assembly to regulate its own
procedure:
43. The right of the House to have absolute control of its internal
proceedings is its privilege, the right to punish one for contempt may be
described as its power while the right that the member shall be liable for
anything said in the House may be an immunity. To prescribe a judicial
review of Assembly privileges can disturb the functions of the House and
cause complications. This will cause unnecessary disruption in the
functioning of the House and that is primarily the reason why the House has
been empowered to regulate its own functioning through Rules and standing
orders. Unless there is an unlawful or illegal act inside the House warranting
interference, the Courts normally refrain from interfering in the procedures
of the Assembly.
(e) Malice as a ground for quashing Show Cause Notice:
44. When a 'SCN' is issued under the relevant Rules or Statutes calling
upon the Member concerned to show cause, ordinarily the Member must
place his case before the relevant Committee by showing cause and the
Courts should be reluctant to interfere with the Notice at that stage itself
unless the notice is shown to have been issued palpably without any
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authority of law or if there is any allegations of malafideness raised against
the authority issuing show cause notice.
45. Malice is a question of fact. The burden is on the person alleging
malafideness to prove the same on the basis of facts that are admitted or
established or provide a deducible logical conclusion. Mere allegations
which are general and vague, unsupported by requisite particulars does not
sufficiently establish the ground of malice.
46. Further when allegations of Malice are made, the persons against
whom the same are levelled need to be impleaded as parties to the
proceedings to enable them to answer the charge. In the absence of giving an
opportunity of hearing to the party in their individual capacity, it is
improbable to arrive at a conclusion that the action of the authority is
coloured with malice.
47. In the case on hand, the members of the committee against whom
malice was imputed were not given an opportunity of hearing as they were
not impleaded to the Writ Petition in their individual capacity.
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48. The writ against a 'SCN' may be entertained only on exceptional
circumstances, where the authority without issued such notice is incompetent
under the provisions of the Statutes or the Rules. If there is an allegation of
malafide, then also writ can be entertained. In such circumstances, the
authorities against whom such allegations of malafide are raised is to be
impleaded as a party respondent in his personal capacity in the writ
proceedings. In the absence of the same, the ground of malice at the
premature stage of issuance of 'SCN' crumbles.
49. Further the argument in the language of 'personal and direct
interest' as stated in Rule 228 has to be substantiated against the individual
members to attract the ground of Malice. Also the Rule clearly states that any
allegation of personal or direct interest against a Member shall be raised
before the Chairman of the Privilege Committee and in case the allegation is
against the Chairman himself then the Rule leaves the final decision to the
wisdom of the Speaker, hence any imputations against any Members in the
Committee is left to the final decision of the Speaker before whom the matter
can be agitated when it comes to issues involving Constitution of Committee
of Privileges. When there is a clear remedy in the Rules whereby a remedy of
approaching the Chairman and the Speaker has been provisioned, a hastened
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approach to the Court at such an initial stage without first raising the issue
before the Committee is not sufficient enough to set aside a 'SCN'.
(f) Provision under which Show Cause Notice was issued:
50. The learned Single Judge tried to assume the role of the Speaker in
presuming the provision invoked by the Speaker to issue the 'SCN'. The
examination of the provision under which the 'SCN' was issued is irrelevant
so long as the Speaker has the powers to issue the 'SCN'. When the power of
the Speaker to issue a 'SCN' is undisputed, mere non-quoting of the relevant
provision or misquoting of the provision cannot vitiate the proceedings.
More so, such an argument cannot vitiate the issuance of 'SCN' itself.
51. It is well settled principle of law that mere mention of wrong
provision of law, when power exercised is available, even though under a
different provision, is by itself not sufficient to invalidate the exercise of that
power. An order purported to be made under a wrong provision of law does
not become invalid so long as there is some other provision of law under
which the order could be validly made. This by itself does not vitiate the
exercise of power so long as the power does exist.
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52. The learned Single Judge has erred in assuming the provision
under which power was derived by the Speaker to issue the 'SCN'. It is
irrelevant and not a point of consideration to set aside a 'SCN'.
(IV) CONCLUSION:
53. In the context of reliance made by the respondents, the
propositions laid in A.M.Paulraj's case (supra) in paragraph no.17 holds
that “it therefore, appears to as that the 8th Legislative Assembly had the
power and jurisdiction to punish the petitioner for the breach of
privilege of the 7th Legislative Assembly”
54. In paragraph no.24 of the judgement, the Full Bench carved out
that “it was clearly open to the 8th Legislative Assembly to take up the
matter with regard to the breach of privilege from the stage when the
report was already made to the Speaker of the House.”
55. In the present case, it is in the stage of Show Cause Notice and
admittedly no final report has been submitted to the Hon'ble Speaker of the
House for taking final decision. Though the facts in A.M.Paulraj's case is
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distinguishable, the legal proposition laid down by the Full Bench is that on
expiry of the 7th Legislative Assembly, the proceedings initiated for breach of
privilege will not lapse and the 8th Legislative Assembly is empowered to
proceed with and take a final decision. Therefore, the principles in
A.M.Paulraj's case is of no avail to the contesting respondents. The
arguments in this regard by Mr.N.R.Elango learned Senior Counsel is
unacceptable.
56. In Amarinder Singh's case also, the facts are totally incomparable.
What is stated in paragraph no.72, in Amarinder Singh's case is about
business before the Committee. The business before the Committee has been
enumerated in Practice and Procedure of Parliament. Undoubtedly, all
business pending before the Parliamentary Committees of Lok Sabha lapse
upon dissolution of Lok Sabha. Committees themselves stand dissolved on
dissolution of Lok Sabha. However, the business before a Committee which
was pending during the expiry of the term of the Parliament cannot be
compared with the breach of privilege proceedings initiated against the
Member of Parliament. The business of Assembly and the breach of
privilege proceeding initiated and referred to Privilege Committee are
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distinct and different. Therefore, the principles laid down in A.M.Paulraj's
case that the breach of privilege proceedings would not lapse on expiry of
the term of Assembly, in our opinion, is correct proposition which is to be
adopted in the present case. In Amarinder Singh's case, the Hon'ble
Supreme Court has not held that breach of privilege proceedings will lapse
on expiry of term of the Parliament. In the case of Amarinder Singh, after
the expiry of the term of the Parliament, the Special Committee constituted,
presented its report on the floor of the House, which in turn became the
basis of the resolution of the Punjab Vidhan Sabha passed. Therefore, the
Amarinder Singh's case would not suggest that breach of privilege
proceedings became lapsed on account of expiry of the term of the
Assembly. On this count, the respondents cannot seek exoneration from the
continuance of breach of privilege proceedings initiated through the 'SCN',
which is under challenge in the writ proceedings.
57. The Privileges are a part of the inherent nature of the House and
the dissolution of an Assembly does not dissolve the privileges of its
members once it is reconstituted. Similarly, breach of the privileges, if any,
does not lapse with the dissolution of the Assembly. It gets carried forward
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to the new Committee of Privileges to be constituted by the Hon’ble Speaker
and is left before them for further deliberations. If the argument of the
Learned Senior Counsel Mr.N.R.Elango is adopted, that Breach of privilege
lapses with dissolution of an Assembly, the very purpose behind privileges
granted to the members of the Assembly become meaningless. Utter chaos
may ensue where every member will be motivated to not take the privileges
seriously thereby leading to breaches and after the end of the term, on
dissolution of Assembly, all such proceedings lapse and this shall go on in an
endless fashion.
58. The sovereign nature of the Assembly must be respected under all
circumstances and the internal conduct should be carried on smoothly for
which Rules and privileges have been formulated. And any such breach of
the same must be dealt with in accordance with the principles enshrined
under the Tamil Nadu Legislative Assembly Rules and the Constitution of
India.
59. The Legislative Assembly is a floor to voice out the concerns of
the people and the privileges are extended to the Members representing the
people in the Assembly to perform their functions without any undue
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interference and to carry on the legislative affairs of the Assembly in a
smooth manner. Such privileges are to be valued in the interest of the people
for whom the Legislative Assembly functions. In a Democracy, People are
always Supreme and the Assembly functioning in the interest of the people
must ensure that its Sovereignty and Dignity remain protected under all
circumstances.
60. Issues such as Breach of privileges cannot be washed away after
dissolution of each and every Assembly. The Assembly and the Committee
of Privileges constituted thereunder must deliberate on the issues relating to
privilege breach and arrive at conclusions in the best interest of the
Assembly representing the people of Tamil Nadu.
61. In view of the legal position and having not convinced with the
reasoning given by the learned Single Judge for setting aside the 'SCN', this
Court is of the firm opinion that the 'SCN' issued must reach its logical
conclusion by following the due process as contemplated under the Tamil
Nadu Legislative Assembly Rules. The powers of the Committee of
Privileges and the powers of the Hon'ble Speaker of the House would not
lapse merely on account of change of Government. The notice issued by
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the Privilege Committee is relating to disciplinary affairs of the House.
Therefore, the proceedings will not lapse merely for the reason that the
opposition party turned to be the ruling party. The nature of
proceedings require a decision to be taken on merits by following due
process contemplated under the Assembly Rules. Therefore, by setting
aside the 'SCN', issues relating to disciplinary matters inside the House,
cannot be buried. It is we the people of India constituted the Assembly under
the Indian Constitution. The Assembly proceedings are to be conducted in
the manner prescribed. Actions initiated must be concluded by following the
procedures as stipulated under the Rules.
62. Accordingly, the following orders are passed:
(i) the Common order passed in a batch of writ petitions in
W.P.Nos.13189 to 13191, 13193, 13195, 13197, 13200, 13201, 13203,
13204, 13206, 13208, 13209, 13214 to 13216, 13219, 13220 and 13504 of
2020, dated 10.02.2021 is set aside, and consequently, all the writ petitions
are dismissed as not entertainable,
(ii) contesting respondents/ writ petitioners may submit their
respective explanations in response to the Show Cause Notice issued,
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(iii) the Secretary of Tamil Nadu Legislative Assembly, the Hon'ble
Speaker of Tamil Nadu Legislative Assembly and the Privilege Committee
of Tamil Nadu Legislative Assembly shall proceed with the Show Cause
Notice, issued to the contesting respondents, by following the due process
under the Tamil Nadu Legislative Assembly Rules and take final decision on
merits and in accordance with law as expeditiously as possible.
63. With the above directions, all the writ appeals are allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
(S.M.S.J.,) (C.K.J.,)
31.07.2024
Index : Yes/No
Internet: Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
(sha)
To
1. The Speaker,
Tamilnadu Legislative Assembly,
Fort St. George, Chennai-600009
2. Privileges Committee,
Rep. By Its Chairman,
Tamilnadu Legislative Assembly,
Fort St. George, Chennai-600009
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S.M.SUBRAMANIAM, J.
and C.KUMARAPPAN, J.
(sha) Pre-Delivery Order in W.A.Nos.701 of 2021 etc., and batch 31.07.2024 https://www.mhc.tn.gov.in/judis 46/46