Wednesday, Nov 12, 2003
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Tamil Nadu
By Our Special Correspondent
A Division Bench, comprising Justice P. Shanmugam and Justice A.K. Rajan, ordered notice to the Speaker, returnable in two weeks. The Advocate-General and the public prosecutor took notice on behalf of the Chief Secretary, the Legislative Assembly Secretary and the Superintendent of Central Prison, Chennai (where Mr. Ilamvazhuthi is lodged). After hearing arguments for over half a day, the Bench reserved orders on a plea for grant of interim bail to the MLA. In the morning, R. Shanmugasundaram, senior counsel appearing for the DMK treasurer and petitioner, Arcot N. Veerasamy, submitted that the enquiry and punishment under the privilege proceedings was excessive, as the Assembly had on January 30, 2003 itself resolved to lodge a complaint with the Central Crime Branch, Chennai, against Mr. Ilamvazhuthi for "criminally intimidating" an AIADMK member, Kumaradas. After this, the MLA was arrested and lodged in jail. He came out on bail. By lodging a criminal complaint, the Assembly divested itself of the jurisdiction to try him. So parallel proceedings in the form of privilege proceedings would not only affect the outcome of police investigation but also lead to double punishment for a single offence, which was a violation of Article 20 (2) of the Constitution. On the question whether a person charged under privilege proceedings should be given an opportunity to reply, counsel said the principles of natural justice demanded so. Anyway, the member's personal liberty was affected by the sentence. Hence whenever there was a conflict between a person's fundamental right under Part III of the Constitution and Article 194 (Power and Privileges of Members of the House), the former would prevail. The Bench told the Government side that the questions might take long to be resolved and detailed arguments might have to be made. It asked whether the MLA could be granted interim bail for now. Even if the question was decided against him, could he not serve the rest of the sentence later? Opposing the plea, the Advocate-General N.R. Chandran, argued that the habeas corpus petition was not maintainable, because there was no illegality in the detention. It was based on an Assembly resolution, which was legal. There was no need to present the MLA before a magistrate after the sentence was awarded, as the Assembly/privilege proceedings were different from the procedure under the Cr.P.C. Opposing the contention that there could not be two parallel proceedings for the same offence or charge, the Advocate-General said they were two separate and independent proceedings. There were several instances of a person having to face criminal charges as also departmental proceedings simultaneously, without prejudice to each other. Even so, the criminal charge was for threatening or intimidating another member, while the Assembly proceedings against Mr. Ilamvazhuthi pertained to a breach of privilege of the House or its members. "He is mixing up apples and oranges."
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