Constitution and Law procedure
Supreme Court on Fundamental Freedom & Parliamentary Privileges
06 Apr 2016  |  Views: 25  | 
Vishal Kumar Thakur

Justice Chelameswar authored the judgment within the case of Alagaapuram R. Mohanraj and Others v. The Tamil Nadu Legislative assembly and Others delivered on 12th February 2016. The starting place of the case is in the suspension of the MLAs in Tamil Nadu because of the allegedly unruly behaviour in the meeting. Challenging the suspension, one of the crucial contentions of the petitioners used to be that the correct to occupy the place of work of an MLA fell beneath Article 19(1)(g) inside the term “occupation”. They placed reliance on the T.M.A Pai groundwork case the place it was once recounted that the term “occupation” shall receive the widest interpretation. It's on this context that Justice Chelameswar seeks to handle the query of whether the correct to occupy the office of an MLA falls inside the ambit of the time period “occupation” in Article 19(1)(g).

To be able to deal with the query, at paragraph 22 of the judgment he deems it imperative to evaluate the “etymological and contextual which means” of the word ‘occupation’ in Article 19 (1)(g). After doing so, he concludes at paragraph 24 that “the entire routine contemplated beneath Article 19(1)(g) are basically pursuits which allow a citizen to generate monetary advantages.” so as to reach the conclusion, he depends on two circumstances viz. Sohan Singh v New Delhi Municipal Committee and T.M.A Pai foundation and Others v State of Karnataka and Others.

Here, I want to demonstrate how the reliance on the circumstances is totally misplaced and counterproductive. I shall analyze how the reliance on Sohan Singh is faulty. In paragraph 23 he charges the Sohan Singh case as a binding precedent: “This courtroom (Sohan Singh’s case) had the party to compare the query and held that…“(authors emphasis) which is thoroughly improper as the quoted, paragraph 28 is part of the concurring opinion of Justice Kuldip Singh. The paragraph that was quoted was a comment made by using Justice Kuldip Singh in the greater context and nothing extra. Additionally, the case by no means considered the ‘etymological and contextual which means’ of the term occupation. Thus the reliance positioned on Sohan Singh’s case is misplaced.

I shall now analyze the dependence of Justice Chelameswar on T.M.A Pai’s case and the counterproductive effect it produces. The judgment quotes paragraph 20 of the Pai case alternatively, quotes selectively. The whole paragraph is as follows:

“20. Article 19(1)(g) employs 4 expressions, viz., occupation, occupation, trade and business. Their fields may overlap, however each of them does have a content of its possess. Education is per se regarded as an exercise that's charitable in nature [See The State of Bombay v. R.M.D. Chamarbaugwala]. Schooling has up to now not been viewed as a alternate or business the place profit is the motive. Even if there is any doubt about whether or not schooling is a profession or no longer, it does show up that education will fall inside the meaning of the expression “occupation”. Article 19(1) (g) uses the 4 expressions so that you could cover all hobbies of a citizen in recognize of which income or revenue is generated, and which is able to accordingly be regulated below Article 19(6). In Webster’s third New global Dictionary at web page 1650, “occupation” is, inter alia, defined as “an recreation in which one engages” or “a craft, alternate, career or different method of earning a dwelling”.” (The phase in daring is the quoted paragraph within the judgment even as underlined is the writer’s emphasis)

due to this fact, in paragraph 21 the T.M.A Pai case analyzes the definition furnished in Corpus Juris Secundum, quantity LXVII and the Sohan Singh case. The reliance on Sohan Singh’s case is partly misplaced considering that it did not certainly analyze the import of the terms in Article 19 (1)(g). That is however mitigated with the aid of the unbiased analysis completed in this judgment itself. The T.M.A Pai case didn't treat the commentary in Sohan Singh as a ratio, the error made within the today's case. The T.M.A. Pai case states, at paragraph 25,

“The institution and walking of an educational tuition where a colossal number of individuals are employed as lecturers or administrative staff, and an recreation is carried on that outcome within the imparting of potential to the pupils, ought to necessarily be viewed as an occupation, even supposing there's no aspect of profit generation. It is elaborate to comprehended that schooling, per se, will not fall underneath any of the 4 expressions in Article 19(1)(g). “Occupation” would be an activity of a man or woman undertaken as a means of livelihood or a mission in lifestyles. The above quoted observations in Sodan Singh’s case accurately interpret the expression “occupation” in Article 19(1)(g).” (Authors emphasis)

The “above quoted observations” of the Sohan Singh case was,

“”…..The phrase occupation has a large which means comparable to any usual work, career, job, principal endeavor, employment, industry or a calling where an person is engaged…..The thing of utilising four analogous and overlapping words in Article 19(1)(g) is to make the assured correct as complete as viable to include all the avenues and modes through which a person may earn his livelihood. In a nutshell the warranty takes into its fold any endeavor carried on by using a citizen of India to earn his residing…..”.”

it's thus through quintessential implication that the T.M.A Pai case approved the commentary within the Sohan Singh case as being the proper interpretation best to the extent to which it quoted the judgment and no longer the rest of the observations. Nevertheless, Justice Chelameswar regards the Sohan Singh case as binding authority and likewise depends on the judgment within the Pai case the place, he unluckily is guilty of selectively quoting it. The implication of this is Justice Chelameswar maintaining that “The amplitude of the time period ‘occupation’ is restricted by way of the financial vital of livelihood new release. For that reason, all the pursuits contemplated under Article 19(1)(g) are essentially pursuits which allow a citizen to generate economic advantages.” This runs counter to the ratio of the T.M.A Pai case as recounted in the instances of P.A. Inamdar & Ors v State of Maharashtra & Ors and the Ashok Kumar Thakur v Union of India of walking an educational school falling within the ambit of the time period “occupation” whatever the profit rationale or the economic benefits. The conclusion recorded in the judgment is for this reason bad in regulation.

Upvotes: 0  |  Downvotes: 0  | 


Login to comment