(In this guest post, Tejas Popat analyses the recent Supreme Court decision on the suspension of Tamil Nadu assembly lawmakers (discussed in the previous post), from the perspective of the freedom of occupation)
Justice Chelameswar authored the judgment in the case of Alagaapuram R. Mohanraj and Others v. The Tamil Nadu Legislative Assembly and Others delivered on 12th February 2016. The origin of the case is in the suspension of the MLAs in Tamil Nadu because of the allegedly unruly behaviour in the Assembly. Challenging the suspension, one of the contentions of the petitioners was that the right to occupy the office of an MLA fell under Article 19(1)(g) within the term “occupation”. They placed reliance on the T.M.A Pai Foundation case where it was stated that the term “occupation” shall be given the widest interpretation. It is in this context that Justice Chelameswar seeks to address the question of whether the right to occupy the office of an MLA falls within the ambit of the term “occupation” in Article 19(1)(g).
In order to address the question, at paragraph 22 of the judgment he deems it necessary to examine the “etymological and contextual meaning” of the word ‘occupation’ in Article 19 (1)(g). After doing so, he concludes at paragraph 24 that “all the activities contemplated under Article 19(1)(g) are essentially activities which enable a citizen to generate economic benefits.” In order to reach the conclusion, he relies on two cases viz. Sohan Singh v New Delhi Municipal Committee and T.M.A Pai Foundation and Others v State of Karnataka and Others.
Here, I wish to demonstrate how the reliance on the cases is wholly misplaced and counterproductive. I shall analyze how the reliance on Sohan Singh is erroneous. In paragraph 23 he quotes the Sohan Singh case as a binding precedent: “This court (Sohan Singh’s case) had the occasion to examine the question and held that…“(authors emphasis) which is wholly flawed as the quoted, paragraph 28 is a part of the concurring opinion of Justice Kuldip Singh. The paragraph that was quoted was a remark made by Justice Kuldip Singh in the larger context and nothing more. Also, the case never considered the ‘etymological and contextual meaning’ of the term occupation. Hence the reliance placed 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 result it produces. The judgment quotes paragraph 20 of the Pai case rather, quotes selectively. The full paragraph is as follows:
“20. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay v. R.M.D. Chamarbaugwala]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression “occupation”. 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(6). In Webster’s Third New International Dictionary at page 1650, “occupation” is, inter alia, defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living”.” (The part in bold is the quoted paragraph in the judgment while underlined is the author’s emphasis)
Subsequently, in paragraph 21 the T.M.A Pai case analyzes the definition offered in Corpus Juris Secundum, Volume LXVII and the Sohan Singh case. The reliance on Sohan Singh’s case is partly misplaced for the reason that it did not specifically analyze the import of the terms in Article 19 (1)(g). This is however mitigated by the independent analysis done in this judgment itself. The T.M.A Pai case did not treat the observation in Sohan Singh as a ratio, the mistake made in the latest case. The T.M.A. Pai case states, at paragraph 25,
“The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh’s case correctly interpret the expression “occupation” in Article 19(1)(g).” (Authors emphasis)
The “above quoted observations” of the Sohan Singh case was,
“”…..The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged…..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…..”.”
It is therefore by necessary implication that the T.M.A Pai case approved the observation in the Sohan Singh case as being the correct interpretation only to the extent to which it quoted the judgment and not the rest of the observations. However, Justice Chelameswar regards the Sohan Singh case as binding authority and also relies on the judgment in the Pai case where, he unfortunately is guilty of selectively quoting it. The implication of this is Justice Chelameswar holding that “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.” This runs counter to the ratio of the T.M.A Pai case as acknowledged in the cases of P.A. Inamdar & Ors v State of Maharashtra & Ors and the Ashok Kumar Thakur v Union of India of running an educational institution falling within the ambit of the term “occupation” regardless of the profit motive or the economic benefits. The conclusion recorded in the judgment is thus bad in law.
It is to the credit of the judges that the judgment was handed out within a year of the incident taking place. While the alacrity is appreciated by the populi, the errors make them sceptical of the quality of the judgment being compromised, as was in this case. Helpless, they’d say, “My Lordship, Abundans Cautela Non Nocet!”