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SPECIAL REFERENCE NO. 1 OF 1964

September 30, 1964.

(P. B. G;.JENDRAGADKAR, C.J., A. K. SARKAR, K. SunA RAo,

K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH

B AND N. R.AJAGOPALA AYYANGAR JJ.)

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ConJtitution of India, Art. 143(1)-Reference under, whether mUJt

relate to matterJ pertaining to President's powers and duties unlier t,he

ConJtltution-Refusa/ to answer when jurtifiable.

Co1'!3titution of· India, Art. 194(3)-Privileges of Hou>e of Com­

mons conferred on Indian State Legislatures--Power to commit for con­

tempt by conclwlve general warrant whether one of such prlvl/eg•:t­

Privlleges whether 1ubject to provision. of the Corutitution and to

fundamental rights-Power to determine scope of privi/egeJ whether

rests entirely with legislatures to the exclusion of the CourtJ.

Constitution of India, Arts. 32, 226-Power of Supreme Court and

High Courts to entertain petitions challenging legality of committals for

contempt by State Legislatures-Power to interfere where breach of

fundamental rights alleged.

Constitution of India, Art. 211-Whether directory or mandatory­

/ts impact on Art. 194(3).

The Legislative Assembly of the State of Uttar Pradesh committed

one Keshav Singh, who was not one of its' members, to prison for its

contempt. The warrant of committal did not contain the facts consti­

tuting the alleged contempt. While . undergoing imprisonment for the

committal, Kcshav Singh through his Advocate moved a petition under

Art. 226 of the Constitution and s. 491 of the Code of Criminal Pro­

cedure, challenging his committal as being in breach of his fundamental

righ"'; he also prayed for interim bail. ·nie High Court (Lucknow

Bench) gave notice to the Government Counsel who accepted it on

behalf of all the respondents including the Legislative AMembly. At

the time fixed for the hearing of the bail application the Government

Counsel did not appear. Beg and Saghal JJ. who heard the application

ordered that Keshav Singh be released on bail pending the decision of

his petition under Art. 226. The Legislative Assembly found thal

Keshav Singh and his Advocate in moving the High Court, and the two

Judges of the High Court in entertaining the petition and granting bail

had committed contempt of the Assembly, and passed a resolution that

all of them be produced before it in custody. The Judges and the

Advocate thereupon· filed writ petitions before the High Court at Allaha­

bad and a Full Bench of the High Court admitted their petitions and

ordered the stay of the execution of the Assembly's resolution against

them.

The

Assembly then passed a clarificatory resolution which modified

its earlier stand. Instead of being produced in custody, the Judges and

the Advocate were asked to appear before the House and offer

•heir explanation.

At this stage the President of India made a Reference under Art.

143(1)

of the Constitution in which the whole dispute

as to the consti­

tutional relati0nship between the High Court and the State Legislative

including the question whether on the facts of tho case Keshav Singh

414 SUPREME COURT REPORTS [1965] I S.C.R.

his Advocate, and the two Judges, by their respective acts, were guilty A

of contempt of the State Legislature, wa< referred to the Supreme Court

for its opinion and report.

At the hearing of the Reference a preliminary objection as to the

competency of the Reference was raised on behalf of the Advocate·

Gener.I of Bihar, on the ground that it did not relate to any of the

matters covered by the President's powers and duties Wlder the Con·

slitution. It was also urged that even if the Reference was competent, B

lhe Court should not answer it as it was not obliged to do so, and the

answers given by it would not help the !'resident in solving any of the

<lilficulties with which he might be faced in di9Charging his duties. The

Court did not accepL these contentions and proueded to hear the par·

ties which fell, broadly, into two groups-those supporting the Assembly

.and thooe supporting the High Court.

On behalf of the As&embly it was urged that by virtue of Art. C

194(3) of the Constitution all the powers, privileges, and immunities

<>f the House of Commons of the United Kingdom had been conferred

on it. It was the sole judge of its privileges and the Courts had no

jurisdiction to interfere with their exercise. In the alternative, it was

coolended that Courts in England never innerfered with a committal

by the House of Commons for contempt when the committal was by a

general ¥.'arrant. i.e., a warrant which did not state the facts constituting

the contempt, and. therefore Courts in India were also precluded from D

examining the legality of the general warrants of the Slate Legislatures.

The proceedings in the High Court in the present case were, theroiore,

in contempt of the legislature.

Those supporting the stand taken by the High Court urged that the

Legi•latureo received the powers of the House of Common• subject to

provisioas of the Constitution and to the fundamental rights, that the

power to commit by general warrant was not one of the privileges of E

the Howe of Commom, that by vinue of ArtielN 226 and 32, the

citizen had the right to move the Court• when hi• fundamental rights

were contravened, and that because of the provisions in Art. 211, the

Legislature was precluded from taking any action against the Judges.

HELD: (Per P. B. Gajendragadkar C. J., K. Subba Rao, K. N.

Wanchoo, M. Hidayatullab, l. C. Shah and N. Rajagopala Ayyangar,

JJ.)-The terms of Art. 143(1) are very wide and all that they require F

is that the President should be satisfied that the questions to be referred

are of such a nature and of such public importance that it would be

expedient to obtain the Supreme C'.ourt's opinion on them. The Presi·

dent's order making the present Reference showed that he wu so satis­

fied. and therefore the Reference wa' competent. The argument that

a Reference under Art. 143( I) could only be on matters directly re­

lated to the President's powers and duties under the Constitution was

miscooceiYed. (431 E-P; 432 B-P]. G

Earlier References made by the Pre<ident under Art. 143(1) showed

no uniform pattern and that was consistent with the broad and wide

words uocd in Art 143(1). (433 C-D].

In rt: The Delhi Laws Act, 1912, (1951] S.C.lt. 747, In rt: The

Kora/a Educasion Bill, 1957, (1959] S.C.R. 995, In re: Btrubarl Union

le ExchanRe of Enclaves. (1960] 3 S.C.R. 250 and In " : Sea CllStoms

Act, (1964] 3 S.C.R. 787, referred to. H

It is not obligatory on the Supreme Court to answer a Reference

under Art. 143(1 )-the word u.•ed in that Article being 'may', in COD·

trast to the word 'shall' used in Art. 143(2). Refusal to make a report

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SPECIAL REFERENCE 415

answering tho questions referred would however be justified only for

sufficient and satisfactory reasons e.g., the questions referred being Of a

purely socio-oconomic or .political character with no constitutional

significance at all. The present Reference .raised questions of grave

constitutional importance and the answers given by the Court could help

the Prcoident to advise the Union and State Goyernments to take

sujta'1le legislative or executive action. It was therefore the duty of the

court to answer it. (434 B-D; 433 G-H).

The advisory opinion rendered by the Co~rt in the present Reference

proceedings was not adjudication properly so-called, and would bind na

partiea as such. [446 H; 447 AJ.

(ii) The State Legislatures in India could not by virtue of Art.

194(3) claim

to. be the sole judges of their powers and

privileges to the

exclusion of the courts. Their po,vers and privileges were to be found

in Art. 194(3) alone and nowhere else, and the power to interpret

that Article lay under the scheme of the Indian Constitution, exclusively

with the Judiciary of this country. (Scheme of the Constitution dis­

cussed). [444 G-H; 446 G-H].

It was not the intention of the Constitution to perpetuate in India

the 'dualism' that rudely disturbed public life in England during the

16th, 17th and 18th centuries. The Constitution-makers were aware

of the several unhappy situations that arose there as a result of the con­

flict between the Judica.ture and the Houses of Parliamen.t. and the pro­

visions of Arts. 226, 32, 208, 212(1) and 211 (examined by the Court)

showed that the intention was to avoid such a conflict in this

country. [-454 A-B; 455 C-E].

ArticJc 211 which provides that the Legislature..<; could not discuss

the conduct of the Judge in the discharge of his duties, was mandatory.

[457 G-Hl.

State of U. P. v. Manbod/lan Lal Srivastava, [1958] S.C.R. 533 and

Montreal Street Railway Company v. Normandin, L. R. [1917] A.C.

170. referred to.

(iii) Although Art. 194(3) has not been made expressly .subject

to

the provisions of the Constitution, it \vould be unreasonable 1n con­

struing

it to ignore the

other provisions, if for valid reasons they were

found to be relevant and applicable. Therefore wherever it appeared

that there was a conflict between the provisions of Art. 194(3) and the

provisions relating to fundamental rights, an attempt had to be made

to resolve the said conflict by the adoption of the rule of harmonious

construction as was done

in

Shar1na's case. [443 C-E].

Pandit

M.

S. M. Sharma v. Slzri Sri Krishna Sinha &: Others,

[1959] Supp. J S.C.R. 806.

G (iv) In Shanmis case a majority of this Court held,

Art.

21 was applicable to the contents of Art. 194(3)

19(1)

was not. The minority view was that Art. 194(3)

all the fundamental rights. [

45 J B-C].

in terms, that

though Art.

\Vas subject to

H

The majority in Sharma's case cannot be said to have held that Art.

194(3) was independent of all the fundamental rights for the simple

reason that it was held that Art. 21 was applicable, although on the

facts of the case its provisions were found not to have been C?ntraveoed.

The petitioner in that case had not raised at alI the general issue as to

the applicability and relevance to Art. 194(3) of all the fundamental

rights in Part III, and therefore it was unnecessary for the Cou.rt · t~>

discuss and decide that general issue. His claim \Vas based on the a~plic.-.·.

416 SUPREME COURT REPORTS [ 1965] I S.C.R.

ability of two Articles only i.e., Articles 21 and 19(1)(a). The Court

held that the former was applicable and the latter was not. This mUSI

therefore be taken to ha»e been settled in Sharma's case. (451 C-F).

But Sharma's case cannot

be said to have settled :he issue whether

Art.

22(2) was applicable to Art. 194(3) or not. (Observations of the

majority therein as to the correctness of the decision in Reddy's

c~e

which was decided on the basis that Art. 22(2) was applicable, held

to

be obiter).

(452 D-E).

Pandit M. S. M. Sharma

v.

Shri Sri Krishna Sinha & OtherJ,

I 1959) Supp. I S.C.R. 806 and Gunupati Keshavram Reddy v. Nafisul

/Iman and the State of U.P., A.I.R. 1954 S.C. 636, discussed.

(v) l'he view taken in Shar1na's case that the laws defining the

powers and privileges of the legislatures under the first part of Art.

194(3) would be subject lo Art. 13 and therefore to the fundamental

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rights, did not require reconsideration. [453 G]. C

Anantha Krishnan v. State of Madras, A.J.R. 1952 Mad. 395, con­

sidered.

(vi) The first part of Art. 194(3) empowers the Stale Legislatures

10 define by law 1heir O\vn po\'ers, privileges and immunities. The

second part of the Article says that till they define their powers etc. in

the above manner, their powers, privileges and immunities will be those

of the Brith~h House of Commons. The second part was obviously in-D

1ended to confer for the interim period till laws were made under the

first part, thc..;e incidental privileges and immunitie.'i which everv Legi5·

laturc musti possess in order that it may be able to function effectively.

(442 C-E].

The power-. of the House of Commons conferred by this clause are

those which were still in existence at the commencement of the Con·

atitution l.t., 26th January, 1950 and not those which had fallen into

desuetude

or the claim in

respect of which had been given up. Further, E

only those powers can he deemed to have been conferred which were

not only clnimed by the House of Commons but also recognised by tho

British Cour:s. (442 F-H].

(vii) The claim that all the powers of the British HOU5e of Com­

mons became vested

in the Indian

Legislatures by virtue of Art. 194(3)

cannot

be accepted in its entirety for there are many

powers of the

House of Commons-such as right of access to the sovereign, passing F

acts of attainder, impeachment, determining its own Constitution etc.­

which cannot be possibly exercised by the Indian Legislatures. (448

D-GJ.

May'1 Parlia1ntntary Practice, 16th Edn. p. 86, referred to.

(viii) Art. 194(3) did not confer on the Indian State Legislat•res

the right to commit for contempt by a general warrant which could

not be examined for its validity by courts in habtas corpus proceedings. G

The right claimed by the House of Commons not to have its general

warrants examined in hahta!; corpus proceedings, was based on the con·

5idcration that the I-louse of Commons Vias in the position of a superior

court of record and had the right like other superior courts of r~rd

to issue a general warrant for the commitment of persons found gwlty

,,f contempt. There was a convention in En~land whereby the general

¥.:arrants committing. for contempt issued by a superior court of record

were not examined by other courts. It was on that ground and DOI on the H

,round of privilege that the general warrants issued by the House of

Commons were treated as beyond scrutiny by the courts. (482 B-D;

496 FJ.

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SPECIAL REFERENCE 417

May's Parliamentary Practice, 16th &In. relied on.

Ashby v. White, L.J, ( 1701-05) 714, Earl of Shaftesbury's ca.<c,

86 E.R. "/92, Bradlaugh v. Gossett, L.R. XJI Q.B.D. 271, 12 State Tr.

822,

Sir Francis Burdett, Abbott,

104 E.R. 501, Stockdale v. llan.rnrd,

112 E.R. 1112, Ashby v. Wlu'te and Others, 92 E.R. 126, R. v. Paty &

others, 92 E.R. 232, Murray's case, 95 E.R. 629, Brass Crosby, 95 E.R.

1005, Burdett v. Abbott 3 E.R. 1289, Sheriff of Middlesex, 113 E.R.

419 and

Howard v. Gossett, 116 E.R. 139, discussed and relied on.

Bradlaugh v. Gossett, L.R. XII Q.B.D. 271, held not applicable.

Speaker of the

Legislative Assembly of Victoria v. Hugh Glass,

(1869-71) III L.R., P.C. 560, Fielding and Others· v. Thomas, 1896,

L.R., A.C., 600, The Queen v. Richardf, 92 C.L.R. 157 and Dill v.

Murphy, (1864) I Moo. P.C. (N.S.) 487 (15 E.R. 784), not followed.

Observations of Gwyer C.J., in Central Provinces and Berar Act

No. XIV of 1938 [1939J · F.C.R. 18 to the effect that decisions in re•­

pect of' other Constitutions could not be safely applied even \Vhen the

provisions interpreted are similar, relied on.

Observations of Parker J, in re:

Hun(s case [1959J · 1 Q.B.D.

378, referred to as indicating that even in regard to a commitment for

contempt

by a superior court of record, the court exercising

its jurisrlic­

tion over a petition filed for habeas corpus would be competent to con­

sider the legality of the said contempt notwithstanding the fact that the

warrant for commitment was general or unspeaking.

The In<lian Siate Legislaturr:s were not at any time in their history,

either under the Constitution Act, 1935. or under the Indian Jndcpen­

dence Act, 1947, intended to be courts of record. The legal fiction in

Art. 194(3) could not transfer the history of England to India and

confer on the Indian State Legislatures the status of superior courts of

record. Thus the very basis on which the English Courts agreed to

treat a general warrant issued

by the House of ('ommons on the footing that it \!as a warrant issued by a superior court of record, wa~ ahsent

in their case, and so, it would be unreasonable to contend that the rele­

vant power to claim a conclusive character for the general warrant

which the House of Commons, by agreement, was deemed to po•sess,

became vested in the Indian Legislatures. On this view of the matter

the claim made by the Uttar Pradesh Assembly had to be rejcctod.

[4!>2 A-BJ.

(ix) Even if the power to commit by non-examinable general war­

rant were treated as forming an integral oart of the privileges of the

House

of Commons it would not follow that the Indian State Legisla­

tures could exercise that power by virtue of Art. 194(3). [495-HJ.

The very

existence of the powers of the Courts under Art. 226 and

32 necessarily implies a right

in the citizen to approach the High Court

or the

Supreme Court for the protection of his fundamental righ~•.

(The present dispute was really between a citizen and the Legislature

and not one between the High Court and the Legislature). [494 A-BJ.

Tf a citizen moved this court and complained that his fundamental

right under Art. 21 [held to be applicable to Art. 194(3) in Sharma'.'

c...,) or any other applicable right, had been contravened, it would

plainly be the duty of this Court to examine the merits

of the said con­

tention. It would be no answer in such a case to say that the

warrant

issued against the citizen was a general warrant and a general warrant

mll.'lt stop all further judicial enquiry and scrutiny. The impact of the

418 SUPREME COURT REPORTS (1965] I S.C.R.

fun<Limental right conferred on Indian citizen hy Ari. 32 on the con- A

st ruction of the I alter part of Art. 194 ( 3) was decisively against the

view that a power or privilege could be clai1ncd by the House though

it may he inconsistent with Art. 21. In this connection it \Vas relevant

to rccftll that the rules for regulating the procedure of the House \Vere

subject to the provision of the Constitution under An. 208(1). [493

D-E].

Observ~tions of Simonds J., in In re : Parli11111c11ta.~.r Prii.:i/egcs A,·1. B

1770, [ 1958] A.C. 331 and Reso/11tio11 of the Houst of Lords, C.J.

1702-04, pp. 555, 560, (Cited in May 16th Edn. p. 47), referred to.

It \vould be strange if the House which v.·as incompetent because or

Art. 211 to discuss the conduct of a Judge in the discharge of his dutit.~.

shou!d have the power to summon him in cuStody for alleged contempr

committed in discharge of his duties. If the claim of the House were

upheld

it would mean that the House could issue

a general warrant C

against a Judge and no judicial scrutiny could

be held

jg respect ol

the validity of such a \varrant. This would pul the h.isic concept of

judicill independence into grave jeopardy. [493 E-HJ.

Jt Y.'as also doubtful whether the power to is.c;ue a general up-speak­

ing warrant was C-Onsistcnt with s. 554(2)(b) and s. 555 of the C-Odc

of Criminal Procedure [496 E-FJ.

Section 30 of the Advocates Act 1961, confers on all Advocates, the D

statutory right to practice in all courts, including the Supreme (',ouri,

before any Tribunal or person legally authorised to take evidence, and

before any other authority or person before whom such Advocate is by

or under any law for the time being in force entitled to prac1icc. Sec-

tion 14 of the Har Councils Act recognises a similar right. Just as the

rights

of

lhc Judicalure to deal v.·ith 1na11crs before them under Art. 226

or An. 32 cannot be subjected to the powers and priviJcges of the

House under Art. 194(3), so the rights of the citizen to move the E

Judicature and the right of the Advocates to assist that process must

remain uncon1rolled by Art. 194(3), That is one integrated scheme

for protecting the fundamental rights and for sustaining the rule of law

in this country. lbereforc the right to commh by a conclusive general

\Varrant which the State Assembly clai1ned to he an integral part of its

po\vers or privileges was inconsistent with the material provisions of the

Conslitution and could not be deemed to have been included under the

latter

part of

Art 194(3). (495 E-H]. F

The power to con1mit by gen1.;ral warrant was moreover not essen­

tial for

the effective functioning of a House of

Legislature. The Ameri­

can C.ongress. had been functioning effectively \i.ri1hout such power.

[497 B-EJ,

In India, there are 14 State Legislatures in addition to the Houses

or Parliament. If the power claimed by the U.P. Assembly were con­

ceded it is not difficult to imagine that its exercise may lead to anoma-G

Jous situations as \·hen a member of one Legislature is committed for

contempt by a general warrant issued ;y another Legislature on account

of a speech made by him in his own LcGislalure. [497 E-FJ.

(<) It was open to Ke"hav Singh in his petition under Art. 226 to

implead the House on the ground that his commitment \Yas based on

the order passed by the House, and in that sense the House was res-

ponsible for, and had C-Onlrol over his commitment. [496 B-CJ. JI

The King v. The Earl of Crtwe Ex parte Sekgome. [1910] 2

K.B.D. 576 and Tht Kini! v. Secretary of State for Home Affairs Ex

part• O'britn, [1923] 2 K.B.D. 361, referred to.

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.SPECIAL REFERENCE 419

(xi) Although in England parties who stand committed for con­

tempt by the House of Commons are not admitted to bail by courts,

the position in India

is different. If Art. 226 confers

jurudiction on the

court

to deal with the validity of the order of commitment even though

the commitment has been ordered by the House, it follows that the

court has jurisdiction to make an interim order in such proceedings.

[498 F-HJ.

State of Orissa v. Madan Gopal Ru11gta and others, [1952] S.C.R.

28 and

Maxwell on

Interpr~tation of Statutes, 11th Edn. p. 350, relied

on.

Lala Jairam Das & others and King Emperor, 72 I.A.

120, held

inapplicable.

(xii) On the 'facts of the case the High Court was competent to

entertain the petition of Keshav Singh and to grant him bail pending

disposal of

his petition. There was no contempt

Of the U.P. Assembly

committed by Keshav Singh or his Advocate in ;oving the app1ication

under Art. 226, or by the High Court in entertaining the said petition

:md granting bail. It was not competent for the Legislative Assembly

to direct the production of the two Hon'ble Judges and the Advocate

hcfore it in custody or to call for their explanation for their conduct.

It was competent for the Full Bench of the Allahabad High Court to

entertain and deal with the petitions of the said two Hon'ble Judges and

the Advocate, and to pass interim orders restraining the Speaker of the

U .P. A"embly and other respondents to the said petitions from impl&­

menting the aforesaid direction of the Assembly. A Judge of a High

Court who entertains or deals with a petition challenging any order

or decision of a Legislature imposing any penalty on the petitioner

(who

is not a member of the Legislature) or issuing any process against

the petitioner for its contempt (the alleged contempt having been com­nlitted outside the four-walls of the House), or for the infringement of

iL'> privileges and immun"ities, or who passes any order on such petition,

does not commit

any contempt of the said Legislature, and the said

Legislature

is not competent to take proceedings against such a Judge

in the exercise and enforcement of its powers, privileges and immunities.

[502 A; 503 C].

(xiii) It is necessary to remember that the status, dignity and impor­

tance of the two institutions, the Legislature and the Judicature. are

derived primarily from the status, dignity and importance of

the respective causes that are assigned to their charge by the

Constitution. These two bodies

as well as the executive which

is ano­

ther important constituent of a democratic State, must function not in

antinomy nor in a spirit of hostility, but rationally, harmonioualy and

in a spirit of understanding within their respective spheres, for such

harmonious working of the three constituents of the democratic State

alone will help the peaceful development', growth and stabilintion of the

democratic way of life in this Country, [447 D-B].

(xiv) The power

to punish for contempt large as it

is, must always

be exercised cautiously, wisely and with circumspection.. Frequent or

indiscriminate use of this priwer in anger or irritatlon would not help to

•ustain the dignity of the court, but may sometimes affei:t it adversely.

Wi.se Judges never forget that the best way to sustain the dignity and

status of their office is to deserve respect from the public at large

by

the quality of their judgments, the fearlessness, fairness and

objecti­

vity of their approach, and by the restraint, dignity and decorum which

they observe in their judicial conduct. We venture to think that what

is true of the Judicature is equally true of the Legislature. [501 F-G].

420 SUPREME COURT REPORTS [1965) I S.C.R.

Observations of Lord Atkin in Andre Paul v. Allorney General of A

Trinidad, A.LR. 1936, P.C. 141, referred to.

l'er Sarkar J. (i) It is undoubtedly for the Courts to inlerpret the

Ccnstituti0n and therefore Art. 194 ( 3). It follows that when a question

ari'iCS in this Country as to wheth-zr the House of Commons po&SCSiCd

a panicuJar privilege at the commencement of the Constitution, that

questioo must be settled, and settled only by the courts of law. There

is no scope of the dreaded 'dualism' appearing here, that is, courts B

cntenng into a controversy v.•irh a Housl! of a Legislature as to what its

privileges are. (509 A-BJ. ·

(ii) The words appearing in Ari. 194(3) ·arc "the powers, privileges

and immunities of a House

...... shall

be those of the House of Com-

moI\'i." One cannot imagine more plain language than this. That lan­

~uage can only have one meaning and that is that it was intended to

confer on the State legislatures the po\.'Crs, privileges and immunities C

""'hic:h the House of Commons in England had. There is no occasion

here for astuteness in denying "·ord"' c.heir plain meaning by professing

allegiance 10 a supposed theory of divi,ion of powers. (511 A-BJ.

Brad/aug/r v. Gossett, ( 1884) 12 Q.B.0.271, /lurdetl v. Ahbotl. (1811)

14 East I, In re: Delhi Laws, [1951] S.C.R. 747. Pt. M.S.M. Sharma v.

Sliri Sri Krishna Sinha. ( 1959) Supp. 1 S.C.R. 806, Speaker of 1he Lc11i<­

/a1ive Assembly of Victoria v. Glass (1871) L.R. 3. P.C. App. 560

Quu11 v. Richards, 92 C.L.R. 157, Queen v. Richards, 91 C.L.R. 171 D

and Fielding v. Thomas, (1896] A.C. 660, referred to.

(iii) The power to commit by a general warrant with 1he consequent

deprivation of the jurisdiction of the courts \vas, one of the privileges of

the House of Commons. That privilege was possessed hy the U.P. Assem­

bly by virtue of Art. 194(3) of the Constilulion. (524 C-D).

There

is no authority to show that the House of

Commons· possessed

the powers to commit

by a general warrant hccause ii was a superior E

court of record. Neither the history

oi the

House, nor the judgments in

English cases support that conteotion. The courts only treated the House

'a.• entitled to the same respect as a superior court. They did not say that

the House was a superior court. (513 B-C, 522 BJ.

May's Parliamentary Practice, 16th Edn. Potter's Outlines of Legal

lllslory, (1958 Edn.) Anson's Law of lhc Constitution. 6th Edn. Vol. I,

referred to. F

Bradlaugh v. Cossell, (1884) 12 Q.B.D. 271 Burdell v. Abboll, 5

now 165. Sl1uif/ of Middlesex. ( 1840) 11 A & E 272. Stockdale v.

Ht1T1Sard, (1839) Y AD & E! and Howard v. Gosscll, (1874) IO Q.B.

359. relied on.

It is fallacious to say that the right to comn1it hy general v.·3rrant

posses.sed by the-House of Commons springs from son1e rule of cornily

of courts, or of pre.'iump1ive evidence, or from an agreement between G

court! of Jaw and the House. or lastly, from some concession! nlade by

the former to the latter. [522 E-F].

All privileges of the House of Commons arc based on law. That law

i~ known as Ll'X Parliam~nti. That la...,· like any other law is a IJw of the

land which courts are entil!ed tr. adminisrer. (522 F-GJ.

It is not for us to start new idc~ about privileges of the Hou'\C of

Commons, ideas which hnd not ever bcen'imagincd in England. Researches H

into the period when these privileges \Ycre taking: shape c.1n afford

no answer to their contents and nature in 1950. (523 G-H; 524

R-C).

SPECIAL REFERENCE 421

A Writers of undoubted authority as well as certain recent decisions of

B

c

D

E

F

G

H

the Judicial Committee have treated the power to commit by a conclusive

general warrant as a matter

.of

privileae of the House and not as a ri&ht

possessed by it as a superior court. [515 G-H].

May's Parliamentary Practice, 16th &In. Cases on Con~titutional Law

by Keir and Lawson, Halsbury's Law's of England, Vol. 28, 467, Dicey's

Constitutional Law, 10th &In., referred to.

Speaker of the Legislative Assembly of Victoria v. Glass, Fielding v.

Thomas, and Sheriff of Middlesex, relied on.

(iv) Tuer! (le.iisions of the Judicial Committee may not be binding on

Indian courts but· they have high persuasive value, unless shown to be

wrong. The question 4s whether the House of Commons had a certain

privilege.

If judicial notice of the privilege has to be taken, then under

s. 57 of the Evidence Act, a reference

to the authorised law reports of

England would be legitimate, and if the existence of the privilege

has

to be decided as a matter of foreign law, then again under s. 38 of that

Act a reference

to these reports would be justified. And since they

contain decisions of one

of the highest courts in England, we are not

entitled to say that what they call a privilege of the House of Commons of

their country is not a privilege, unless some equally high authority taking

the contrary view

is forthcoming. [517 D-F].

(v)

It cannot be said that the privilege in question can be

exercised

by the Indian State Legislatures only subject to the fundamental rights

of a citizen guaranteed

by the Constitution. In Sharma's case this court

laid down that the privileges

of the House of Commons which were

conferred on the House

of a State Legislature by Art. 194(3)

take prece­

dence over fundamental rights. This decision was correct and did not

require reconsideration. [524 E-F; 525 B-C, F].

In re: Delhi Laws Act, 195g, [1951] S.C.R. 747, referred to.

It was not held in Sharma's case that Art. 21 takes precedence over

the privileges in Art. 194(3). Das C.J. no doubt said that there was no

violation

of Art. 21

. in that case because the deprivation of liberty was

according to procedure established by law. But that was only ar. alter­

native reason for he could have held-as he did in the case of Art.

19(1)(a)-that Art. 2(being a general provision and Art. 194(3) being

•pecial, the former must yield to the latter. [531 E-F; 532 B-E].

Another reason for saying that Das C.J. did not bold that

Art. 21

took precedence over the privilege to commit by a general warrant

is

the fact that be held that Reddy's case was wrongly decided. That cue

had held that Art. 22 bad precedence over the privilege of committal.

If Art. 22 did not have precedence, as Das C.J. must have held since

he did not accept the correctness

of Reddy' s case, no more could he have

held that Art.

21 would have precedence over the privilege to commit

for contempt. [532 E-F].

(vi) The majority in

Sharma's case no doubt said without discussion

that the law under Art. 194(3) would be subject to all fundamental rights,

but that

is so only because Art. 13 says so. [528 C-D].

Article

13 makes a law bad .if it

conflicts with fundantental rights.

It cannot be said that since Art. 13 might make laws made under cl. (3)

of Art. 194 void, the privileges conferred by the second part must also

be void. Article

13 has no application to the provisions of the

Consti·

tution itself. It governs on.'y the laws made by a State Legislature which

Art. 194(3) is not. The fact that in cl. (I) of Art. 194 the wordl

422 SUPREME COURT RP.PORTS (1965] I S.C.R.

'sub1ect to the provisions of the Constitution' occur, while they arr

omillcd from cl. (3) is '1 strong indication that the Jailer clause was not

iatended to be

so

subjecl. [528 E-H].

(vii) When there u a conflict between a privilege conferred on a

House by the second pan of Art. 194(3) and a fundamental right that

conflict has to be resolved as in Sharmds CMC by harmonising the two

provisions. Harmonious construction n1earu that both the provisions

should be given maximum effect without oae of them wiping out the

other. In the 'instan.t case the conflict wa• between the privilege of

the House to commit a person for contempt without that commillal

being liable to be examined by a court of law, and the personal liberty

of a citizen guaranteed by Art. 21 and the rig} to move the courts in

enforcement of that right under Art. 32 or Art. 226. If the right to

move the courts in enforcement of the fundamental right is given prece·

dcnce, the privilege whi¢h provides that if a House commits a person by

a general warrant that commiual would not be reviewed by courts of

law, will lose all its effect and it would be as if the privilege had not

been granted to a House by the second pan of Art. 194(3). Thi• was

not harmonious construction. That being so. it would follow that when

<t House commits a person for contempt by a general \Varrant that person

would have no right to approach the courts nor can the coum sit in

judgment over such order of comminal. [533 G-H, 534 A-CJ.

Observation of Lord Ellenborough C. J. in Burdelt v. Abbort, referred

10 ror po5'ible exceptions to the rule. [534 C-DJ.

(viii) The Lucknow Bench

was not

apprised of the fact that the

detention of Kcahav Singh was under " general \•.:arrant, and till so ap­

pri'"'d it had full competence to deal with the petition under Art. 226.

Ir was not necessary in the present reference to decide the question

whether in a habeas corpus petition where the commitment is for con­

tempt the: law permits release on bail, because the Reference was nol

meant to seek an answer to that question. No contempt was committe.d

hy the Hon'ble Judges or B. Solomon or Keshav Singh for the respective

parts takeu by them in connection with the pelition as it did not appear

thoit any of those persons knew that the commitment was under a general

warrant. Since they were not guilty, it was not competent for the

Assembly to order their production in custody. Strictly spcakini:. the

ques!ion as to bringing them in custody before the House <ltd not

arise on the facts of the case as the A-.embly had modified its resolution

in that regard. The Assembly was competent to ask for explanation

from the 1wo Judges and B. Solomon. As it had power to commit for

contempt it necessarily had power to ascenain facts concerning the con­

tempt. The Fuli Bench was competent to entertain the petition of the

t"'O Judges and B. Solomon Advocate if on the facts of the case they

could not be said to be guilty. It would follow that the Full Bench had the

power to pass the interim orders it did. On the facts of the ca~e.

a Judge of a High Court who entertains or deals with a petition challeng­

ing any order

or decision of a Legislature imposing any penalty on the J>etitioner or issuing any process against the petitioner for its contempt

or for infringement

of its privileges and immunities

or·· who paMCS any

order on such a petition docs not commit contempt of the said Legi>lature,

and the said Legislature is not compe!ent to take proceedings against such

a Judge in the exercise and enforcement of it:1 poVv·ers, privileges and

immunities. [534 D; 537 D].

(ix) During the fourteen years that the Con•titution has been in ope­

ration, the Legislatures have not done anything to justify the view

that they do not deserve to be trusted with power. Though Art.· 211 is

A

B

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D

E

F

G

H

SPECIAL REFERENCE 423

A not enforceable the Legislatures have shown an admirable spirit of res­

traint aad have not even once in all these years discussed the conduct

of Judges. We must not lose faith in our people, must not think that

the Legislatures would misuse the powers given to them by the Consti­

tution or that safety lay in judicial correction. Such correction may do

more harm than good. In a modem State it is often necessary for the

good of the country that parallel powers should exist in different autho-

.6 rities. It is not inevitable that such

powers will clash. [541 C-E].

c

D

E

F

G

H

Aov1soRY JURISDICTION: Special Reference No. I of 1964.

Special Reference under Art. 143 of the Constitution of

India.

C.K. Daphtary, Attorney-General, H.N.

Sanyill, Solicitor­

General. S. V. Gupte, Addi. Solicitor-General, B. R. L. Iyengar

and R. H. Dhebar, for Union of India.

M.C. Setalvad, G.S. Pathak, Jagadish Swaroop, S.N. Andlcy,

P.L. Vohra, Rameshwar Nath, Mahinder Narain, Harash K. Puri

and Suresh Vohra, for Hon'ble the Chief Justice and other Judge~

of the Allahabad High Court.

G. S. Pathak, Jagdish Swaroop, Bishun Singh, Gopal Behari,

J.S. Trivedi, S.N. Pawnikar, S.N. Andley, P.L. Vohra and

Rameshwar Nath, for Hon'ble Mr. Justice N.U. Beg.

N.C. Chatterjee, Asif Ansari, M.K. Ramamurthi, and R.K.

Garg

for Hon'blc Mr. Justice G.D. Sehgal.

H. M. Seervai,

Advocate-General, Maharashtra, T. R. Andhya•

rujina and S.P. Varma, for U.P. Vidhan Sabha.

N.A. Palkhivala, J.B. Dadachanji, O.C. Mathur and Ravinder

Narain,

for Hon'ble the Chief Justice, Maharashtra High Court.

J. M. Thakore, Advocate-General, Gujarat, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for Hon'ble the Chief Justice,

Gujarat High Court.

D. Narasaraju, N. Ramdar,

O.P. Malhotra, B. Parthasarathy,

J.B. Dadachanji, O.C. Mathur, and Ravinder Narain, for Hon'ble

the

Chief Justice,

Orissa High Court.

Murli Manohar Vyqs, S. Murti, B.N. Kirpal, B.L. Khanna,

K. K. Jain, Chitale

and M.

S. Gupta, for Hon'ble the Chief Justice,.

Rajasthan High Court.

Murli Ma1Whar,

S. Murti, B. N. Kirpal, B. L. Khanna,

K. K. Jain, Cltitale and M. S. Gupta, for Hon'ble the Chief Justice,.

Madhya Pradesh High Court.

D.P. Singh, S. Balkrishnan, Shanti Bhatnagar and Lal Narai,,.

Singh, for Hon'ble the Chief Justice, Patna High Court.

' 'Sup.C.J./65-2

-124 SUPREME COURT REPORTS [ 1965] I S.C.R.

A.C. Mitra and D.N. Mukherjee, for Hon'ble Speaker. West A

Bengal Legislative Assembly.

S. S. Sanyal, S. K. Acharyya and D. N. Mukherjee, for Hon'ble

Chairman, W.B.L.C.

H.M. Seervai,

Advocate-General, Maharashtra, T.R. Anand­

yarujina, R .A. Gagrat and V.J. Merchant, for Hon'ble the B

Speaker/Chairman Maharashtra L.A. & L.C.

G.N. Joshi, Atiqur Rehman and K.L. Hathi, for Hon'ble

the Speaker, Gujarat L.A.

A tiqur Rehman and K.L.' Hathi, for Hon'ble the Speaker,

Himachal Pradesh Vidhan Sabha. C

B.C. Barua, Advocate-General, Assam and Naunit Lal, for

Hon'ble the Speaker, Assam Legislative Assembly.

D.M. Sen, Advocate-General, Nagaland and Naunit Lal, for

Nagaland Legislative Assembly.

B.P. Iha, for Hon'ble the

Chairman, Bihar Legislative Council D

and Hon'ble the Speaker Bihar Legislative Assembly.

K.L. Misra, Advocate-General, Uttar Pradesh, B.C. Misr. ,

D.D. Chaudhury

and

C.P. Lal, for the Advocate-General for

the State of U.P.

M. Adhikari, Advocate-Genera/, Madhya Pradesh and l.N. E

Shroff, for the Advocate-General for the State of Madhya Pradesh.

N. Krishnaswamy Reddy, Advocate-General, Madras, V.

Ramaswamy and A. V. Rangam, for the Advocate-General for

State of Madras.

B.V. Subrahamanyam, Advocate-General, State of Andhra F

Pradesh, M. Jaganadha Rao and T.V.R. Tatachari, for the Advo­

cate-General for the State of Andhra Pradesh.

B. Sen, S.C. Bose and P.K. Bose, for the Advocate-General

for the State of West Bengal. -

G.C. Kasliwa/, Advocate-Genera/, State of Rajasthan, M. V. G

Goswami, for the State of Rajasthan.

S.P. Varma, for the Advocate for the State of Bihar.

J.P. Goyal, for M/s. Keshav Singh and B. Soloman.

M. K. Namb,var and N. N. Keswani, for Bar Council of India.

M. K. Nambyar, Chaudhury Hyder Hussain, B. K. Dlurwan, H

Bishun Singh, Shiv Sastri and S. S. Shukla, for Oudh Bar Associa­

tion.

A

B

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D

SPECIAL REFERENCE (Gajendragadkar C.J.) 425

R. Jethmalani, P.K. Kapila and A. K. Nak. for Western

India Advocates Association (Intervener).

S. N. Kakar, C. S. Saran, G. P. Gupta, and S. C. Agarwal,

for Allahabad High ·court Bar Association (Intervener).

M.K. Nambyar and V.A. Seyid Muhammad, for Bar Associa-

tion of India (Intervener).

R.

V. S. Mani, Shaukat Husain, E. C. Agarwala, Shahzadi

Mohiuddin and P. C. Agarwal, for Applicants-Interveners: (a)

Lok Raksha Samaj (Sewak), (b) All India Civil Liberties Council

(

c)

Sapru Law Society.

M. K. Ramamurthi, R. K. Garg., D. P. Singh and S. C. Agar­

wal for Applicant-Intervener Delhi Union of Journalists;

K. Rajendra Choudhury and K. R. Choudhury, for Applicant

-Intervener, Bihar Working Journalists Union.

Chinta Subba Rao, for Applicant-Intervener, Institute of

Public Opinion.

GAJENDRAGADKAR C.J. delivered the Opinion on behalf of

SUBBA RAO, WANCHOO, HIDAYATULl:AH, SHAH AND RAJAGOPALA

AYYANGAR JJ. and himself. SARKAR J. delivered a separate

Opinion.

Gajendragadkar c:J. This is Special Reference No. 1 of 1964

by which the President ha~ formulated five questions for the opi-

E nion of this Court under Article 143(1) of the Constitution. The

Article authorises the President to refer to this Court questions

of law or fact which appear to him to have arisen or are likely

to arise and which are of such a nature and of such public im­

portance that it is expedient to obtain the opinion of the Supreme

1

, Court upon them. Article 143(1) provides that when such

questions are referred to this Court by the President, the Court

may, after such hearing as it thinks fit, report to the President its

opinion thereon. In his Order of Reference made on March 26,

1964, the President has ex9ressed his conclusion that the questions

of law set out in the Order of Reference are of such a nature

G

H

and of such public importance that it is expedient that the opinion

of the Supreme Court of ,India should be obtained thereon.

lt appears that on March 14, 1964, the Speaker of the Legisla­

tive Assembly of Uttar Pradesh administered, in the name of and

under the orders of the Legislative Assembly (hereinafter referred

to

as

"the House"), a reprimand to Keshav Singh, who is a resi­

<l~nt of Gorakhpur, for having committed contempt of the House

and also for having committed a breach of the privileges of Nar-

sii:Jgh Narain Pandey, a member of the House. The contempt and

426 SUPREME COURT REPORTS [1965) I S.C.R.

the breach of privileges in question arose because of a pamphlet A

which was printed and published and which bore the signature of

Keshav Singh along with the signatures of other persons. In

pursuance of the decision taken by the House later on the same

day, the Speaker directed that Keshav Singh be committed to

prison for committing another contempt of the l{ouse by his con­

duct in the House when he was summoned to receive the aforesaid

reprimand and for writing a disrespectful letter to the Speaker

B

of the House earlier. According to this order,· a warrant was

issued over the signature of the Speaker of the House, Mr. Verma,

directing that Keshav Singh be detained in the District Jail,

Lucknow, for a period of seven days, and in execution

of the c

warrant Keshav

Singh was detained in the Jail.

On March 19, 1964, Mr. B. Solomon, an Advocate practising

before the Lucknow Bench of the Allahabad High Court, present-

ed a petition to the High Court on behalf of Keshav

Singh under

section 491 of the Code of Criminal Procedure, 1898,

as well as

under Article 226 of the Constitution. To this petition were im-D pleaded the Speaker of the House, the House, the Chief Mirtister

of Uttar Pradesh and the Superintendent of the District Jail,

Lucknow, where Keshav Singh was serving the sentence of i111-

prisonment imposed on him by the House, as respondents I to

4 respectively. The petition thus presented on behalf of Keshav

Singh alleged that his detention in jail was illegal on several E

grounds. According to the petition, Keshav Singh had been

ordered to

be imprisoned after the reprimand had been

adminis­

tered to him, and that made the order of imprisonment illegal and

without authority. The petition further alleged that Keshav

Singh had not been given an opportunity to defend himself and F

that his detention was

ma/a

fide and was against the principles

of natural justice. It was also his case that respondents l to 3

had no authority to send him to the District Jail, Lucknow, and

that made his detention in jail illegal.

After the said petition

was filed before the Lucknow Bench

of the Allahabad High Court, the learned Advocates for both G

tile parties appeared before Beg and Sahgal JJ. at 2 P.M. and

agreed that the petition should be taken up at 3 P .M. the same

day.

Mr .. Solomon represented Keshav

Singh and Mr. K. N.

Kapur, Assistant Government Advocate, appeared for all tho res­

pondents. Accordingly. the petition was taken up before the

Court at 3 P.M. On this occasion, Mr. Solomon appeared for the H

petitioner but Mr. Kapur did not appear

in Court. The Court

then passed an

Order that the applicant should be released on bail

SPECIAL REFERENCE (Gajendragadkar C.J.) 427

A on furnishing two sureties in a sum of Rs. 1,000 each and a per­

sonal bond in the like amount to the satisfaction of the District

Magistrate, Lucknow. The Deputy Registrar of the Court was

asked to take necessary action in connection with the Order. The

Court also directed that the applicant shall remain present in

Court at every hearing of the case in future. Thus, the petition

ii was admitted and notice was ordered to be issued to the respon­

dents with the additional direction that the case should be set

down for hearing as early as possible. This happened on March

19, at 3 P.M.

On March 20, 1964, Mr. Shri Rama, the Government Advo-

C cate, wrote to Mr. Nigam, Secretary to Government U.P., Judicial

Department, Lucknow, giving

him information about the

Order

passed hy the High Court on Keshav Singh's application. In this

communication, Mr. Shri Rama has stated that after the matter

was mentioned to the Court at 2 P .M. it was adjourned to

3 P.M. at the request of the parties; soon thereafter Mr. Kapur

D contacted Mr. Nigam on the phone, but while the conversation

was

going on, the Court took up the matter at 3

P .M. and passed the

Order directing the release of Keshav Singh on terms and condi­

tions which have already been mentioned. Mr. Shri Rama sent

to Mr. Nigam three copies of the application made

by Keshav

E

Singh and suggested that arrangement should be made for making

an appropriate affidavit of the persons concerned. He also told

Mr. Nigam that the application was likely to be listed for hearing

at a

very early date.

Instead of complying with the request made by the

Govern­

ment Advocate and instructing him to file a .return in the applica-

F tion made by Keshav Singh, the House proceeded to take action

against the two learned Judges who passed the order on Keshav

Singh's application,

as well as Keshav

Singh and his Advocate,

on March 21, 1964.

It appears that two Members of the

House

brought to the notice of the Speaker of the House on the 20th

March what had happened before the Court in regard to the

G application made by Keshav Singh. Taking notice of the order

passed by the High Court on Keshav Singh's petition, the House

proceeded to pass a resolution on March 21, 1964. This resolution

said that the House was of the definite view that

M/s. G. D.

Sahgal,

N. U. Beg. Keshav

Singh and B. Solomon had committed

contempt of the House and therefore, it

was ordered that Keshav

H

Singh should immediately be taken into custody and kept confined

in the District Jail, Lucknow, for the re!llaining term of his impri­

sonment and M/s. N. U. Beg, G.D. Sahkal and B. Solomon should

428 SUPREME COURT REPORTS [1965] I S.C.R.

be brought in custody before the House. The resolution further A

added that after Keshav Singh completed the term of

his

imprison­

ment, . he should be brought before the House for having again

comnutted contempt of the House on March 19, 1964.

The two learned Judges h, .1rd about this resolution on the

radio on the evening of March 21, and read about it

in the morn-

ing edition of the

Northern India

Patrika published on March 22,

1964. That

is why they rushed to the Allahabad High Court

with separate petitions under Art. 226 of the Constitution. These

petitions alleged that the impugned Resolution passed by the

House

was wholly unconstitutional and violated the provisions of

Art.

211 of the Constitution. According to the petitions,

the

application made by Keshav Singh under Art. 226 was competer..I

and in making an order releasing Keshav Singh, the Judges were

exercising their jurisdiction and authority a~ Judges of the High

Court under Art. 226. Their contention was that the resolution

passed by the House amounted to coniempt of Court, and since

B

c

it was y;l·olly without jurisdiction, it should he set aside and by D

an inter:n1 order its implementation should be stayed. To these

petition> ''ere impleaded as respondents Mr. Verma, the Speaker,

Vidhan Sabha, Lucknow, the State of Uttar Pradesh and the Mar­

shal, Vidhan Sabha. These petitions were

filed on March 23,

1964.

Apprehending that these developments had given rise to a very serious problem, a Full Bench ·of the Allahabad High Court

consisting of 28 Judges took up on the same day the petitions

presented before them by their two colleagues at Lucknow,

directed that the said petitions should be admitted

arid ordered

the issue of notices against the respondents restraining the

Speaker

from issuing the warrant in pursuance of the direction of the

House given to

him on March

21. 1964, and from securing exe­

cution of the warrant if already issued, and restraining the Gov­

ernment of U.P. and the Marshal of the House from executing

the warrant.

Meanwhile, on March 25, 1964, Mr. Solomon, the learned

Advocate

of Keshav Singh, presented a similar petition to the

High Court under Art. 226. He prayed for a writ of mandamus

on the same

lines as the petitions filed by the two learned Judges,

and he urged that suitable order should

be passed against the

House, because it had committed contempt of Court.

To

his

petition Mr. Solomon had impleaded seven respondents; they

were: the Speaker of the House, Mr. Verma: the Legislative

Assembly, U.P.; the Marshal of the U.P. Legislative Assembly;

E

F

G

H

SPECIAL REFERENCE (Ga;endragadkar C.J.) 429'

A Mr. Saran and Mr. Ahmad, Members of the Legislative Assembly,

U.P., who brought to the notice of the House the orders passed

by the two learned Judges of the High Court; and the State of

Uttar Pradesh .

..

'This application again was heard by a Full Behch of 28

Judges of the Allahabad High Court on March 25, and after

admitting the petition, an interim order was passed prohibiting

the implementation of the resolution the validity of which was

challenged by the petitioner. At the preliminary hearing of this

petition, notice had been served on the Senior Standing Counsel

who was present in Court. He stated to the Court that he had

c no instructions at that stage to oppose the application. That is

why the Court issued notice of the application and passed what

it thought would be appropriate orders. .

On the same day, the House passed a clarificatory resolution.

This resolution began with the statement that a.

misgiving was

being expressed with regard to the motion passed by the House

. D in

that it could be construed as depriving the persons concerned

of an, opportunity of explanation, and it added that it was never

the intention of the House that a charge against a High Court

Judge for committing breach of privilege or contempt

of the

House, should be disposed of in a manner different from that

governing breach of privilege or contempt committed

by any

E other person. The House, therefore, resolved that the question

of contempt

may be decided after giving an opportunity of ex­

planation to the persons named in the original resolution of

March·20, 1964 according to rules.

As a result of this resolution, the warrants issued for the

F arrest of the two learned Judges and Mr. Solomon were with­

drawn,

with the result that the two learned Judges and Mr.

Solomon were placed under an obligation to appear before the

House and offer their explanations as to why the House should

not proceed

ag~t them for their alleged contempt of the House.

When the incidents which happened in such quick succession

G

from March 19 to .March 25, 1964, had reached this stage, the

President decided to exercise his power to make a reference

·to

this Cou¢ under Art. 143 (1) of the Constitution on MarcJi. 26,

1964. The Order of Reference shows that it appeared to the

President that the incidents in question had

given rise to a serious

H conflict between a High Court and a

State Legislature which in­

volved important and complicated questions of law regarding the

powers and jurisdiction of the High Court and its Judges in re­

lation to the State Legislature and its officers and regarding the

1

~30 SUPlll!ME COURT REPORTS [I 965] l S.C.R.

powers, privileges and immunities of the State Legislature and A

its members in relation to the High Court and its Judges in the

discharge of their duties. The President was also satisfied that

the questions

of law set out in his

Order of Reference were of

such a nature and of such public importance that it was expedient

to obtain the opinion of this Court on them. That is the genesis

of the present reference. B

The questions referred to this Court under this Reference

read

as follows :-

( 1) Whether, on the facts and

circumstances

of the case, it was competent for the Lucknow Bench

of the High Court of Uttar Pradesh consisting of the

Hon'ble Mr. Justice N. U. Beg and the Hon'ble Mr_

Justice G. D. Sahgal, to entertain and deal with the

petition of Mr. Keshav Singh challenging the legality

of the sentence of imprisonment imposed upon him by

the Legislative Assembly of Uttar Pradesh for its con­

tempt and for infringement of

its privileges and to

pass

orders releasing Mr. Keshav Singh on bail pending the

disposal of his said petition;

(2) Whether, on the facts and circumstances

of the case, Mr. Keshav

Singh, by causing the petition

to be presented on his behalf to the High Court of

Uttar Pradesh as aforesaid, Mr. B. Solomon, Advocate,

by presenting the said petition and the said two Hon'ble

Judges by entertaining and dealing with the said peti­

tion and ordering the release of Shri Keshav Singh on

bail pending disposal of the said petition comntitted

contempt of the Legislative Assembly of Uttar Pra-

desh· -

'

(3) Whether, on the facts and circumstances

of the case, it was competent for the Legislative Assem­

bly of Uttar Pradesh to direct the production of the

said two Hon'ble Judges and Mr.

B.

Solomon, Advo­

cate, before it in custody

or to call for their expbnation

for its contempt;

(

4) Whether, on the facts and circumstances

of the

case, it was competent for the Full Bench of

the High Court of Uttar Pradesh to entertain and deal

with the petitions of the said two Hon 'ble Judges and

Mr.

B. Solomon, Advocate, and to pass interim orders

1cstraining the

Speaker of the Legislative Assembly

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SPE~ REFERENCE (Gajendragadkar C.J.) 431

A of Uttar Pradesh and other respondents to the said

petitions from implementing the aforesaid direction of

the said Legislative Assemb~y; and

(5) Whether a Judge of a High Court who

entertains or deals with a petition challenging any order

B or decision of a Legislature imposing

any penalty on

the petitioner or issuing any process against the peti­

tioner for its contempt or for infringement of its privi­leges and immunities or who passes any order on such

petition commits contempt of the sairl Legislature and

whether the said Legislature

.is competent to take pro-

C ceedings against such a Judge

in the exercise and

enforcement of its

powers, privileges and immunities.

At the hearing of this Reference; Mr. Varma has raised a

preliminary objection on behalf of the Advocate-General of Bihar.

He contends that the present Reference is invalid under Art.

D 143 ( l) because the questions referred to this Court are not re­

lated

to any of the entries in Lists I and III and as such, they

cannot

be said to be concerned with any of the powers, duties

or functions conferred on

t.he President by the relevant articles

of the Constitution. The argument appears to be that it

is only

in respect of matters

falling within the powers, functior.3 and

E duties of the President that it would

be competent to him to

frame questions for the advisory opinion of

this Court under Art.

143

(I ) . In our opinion, this contention is wholly misconceived.

The

words of Art. 143(1) are wide enough to empower the

President

to forward to this Court for its advisory opinion any

question of

Jaw or fact which has arisen or which is likely to

F arise, provided it appears

to the President that such a question

is of such a nature or of such public importance that it is expe­

dient

to obtain the opinion of this Court upon it. It is quite true

that under Art.

143 ( 1) even if

questi01;1s are referred to this

Court for its advisory apinion, this Court is not bound to give

such advisory opinion in every case. Art. 143 (1) provides that

G after

the questions formulated by the President are received by this Court, it may, after such hearing as it thinks fit, report to

the President its opinion thereon. The use of the word "may" in

contrast with the use of the word "shall" in the provision pres­

cribed

by Art. 143 ( 2)

clear!) brings out the fact that in a given

case, this Court may respectfully refuse to express its advisory

H opinion

if it is satisfied that it should not express its opinion having

regard

to the nature of the questions forwarded to it and having

regard

to other relevant facts and circumstances. Art. 143(2)

432 SUPREME COURT REPORTS [1965] I S.C.R.

deals with cases in which the President may refer a di1pute to A

this

Coun notwithstanding the prohibition prescribed by the

proviso

to

An. I 31, and it adds that when such a reference is

made, the Court shall, after such hearing as it thinks fit. report

to the President its opinion thereon. In other words. whereas in

the case

of reference made under

An. 143(2) it is the constitu­

tional obligation

of this Court to make a repon on that reference B

embodying its advisory opinion, in a reference

made under Art.

143 (I) there is no

such obligation. In dealing with this latter

class

of reference, it is open to this Coun to consider whether

it

should make a report to the President giving its advisory opinion

on the questions under referec:ce.

This position, however, has no bearing on the question raised

by Mr. Vanna. The validity of the objection raised by Mr.

Varma must be judged in the light of the words of An. 143(1)

themselvt...; and these words arc of such wide amplitude that it

would be impossible to accede to the argument that

the narrow

test

suggested by Mr. Varma has to be applied in determining

the validity of the reference itself. What Art. 143 (I) requires

is

that the

President should be satisfied that a question of law or

fact has arisen or is likely to arise. He should also be satisfied

that such a question is of such a nature and of such public

importance that it is expedient to obtain the opinion of this Coun

on it. Prima facic, the satisfaction of the President on both

these counts would justify the reference, and it is only where this

Court feels that it would be inadvisable for it to express its advi­

sory opinion

on it that it may respectfully refuse to express any

opm1on. But there can be no doubt that in the present case it

would be impossible to suggest that questions of fact and law

which have been referred to this

Court, have not arisen and they

are not of considerable public importance. Therefore, we do

not think there is any substance in the preliminary

objection

raised by Mr. Varma.

The references made to this Court since the Constitution was

adopted in 1950 illustr~te how it would be inappropriate to apply

the narrow test suggested by Mr. Varma in determining the com­

petence or validity of the reference. The first Special Reference

No. 1

of 1951 was made to this Court to obtain the advisory

opinion of this

Court on the qucsti6n about the validity and

constitutionality of the material provisions of the Delhi Laws Act,

1912, the Ajmer-Merwara (Extension of Laws) Act, 1947, and

the Part C States (Laws Act, 1951 (

1

). The second Special

(I) In"' the Dr/hi lA•·s ACI, 191~. (1951] S.C.R. 747.

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SPECIAL REFERENCE ( Gajendragadkar C.J.) 4 3 3

Reference(1) was made in 1958. This had reference to the

validity of certain provisions of the Kerala Education Bill. 1957.

which had been passed by the Kerala Legislative Assembly, but

had been reserved by the Governor for the consideration of the

President. The third Special Reference(') was made in 1959.

and it invited the advisory opinion of this Court in regard to the

validity of the material provisions of

an agreement between the

Prime Ministers of India and Pakistan which

was described as

the !ndo-Pakistan Agreement. The fourth

Special Reference(')

was made in 1962. By this reference, the President forwarded

for the advisory opinion of this Court questions in regard to the

validity of the relevant provisions of a draft Bill which

was

intended to be moved in the Parliament with a view to amend

certain provisions of the

Sea Customs Act, 1878 and the Central

Excises and Salt Act, 1944. It would thus be seen that the ques­

tions

so far referred by the President for the advisory opinion

of this Court under Art. 143

(I) do not disclose a uniform pattern

and that

is quite clearly consistent with the broad and wide words

used in Art.

143(1).

It is hardly necessary to emphasise that the questions of law

which have been forwarded

to this Court on the present occasion

are of very great constitutional importance. The incidents which

have given rise

to this Reference posed a very difficult problem

and unless further developments in pursuance of the orders pass­

ed by the two august bodies were arrested, they were likely to

lead

to a

very serious and difficult situation. That is why the

President took the

view that a case for reference for the advisory

opinion of this Court had been established and he accordingly

formulated

five questions and has forwarded the same to us for

our advisory opinion. Under Art.

143(1) it may be competent

to the President to formulate for the advisory opinion of this

Court questions of fact and law relating

to the validity of the

impunged provisions of existing

Jaws; it may be open to him to

fomrnlate questions in regard to the validity of provisions pro­

posed

to be included in the

Bills which would come before the

Legislatures; it may also be open to him to formulate for the

advisory opinion of this Court questions of constitutional im­

portance like the present; and it may be that the President may,

on receiving our answers consider whether the Union Govern­

ment

or the

State Government should be requested to take any

suitable or appropriate action, either legislative

or executive in

(I) In re: the Kerala Education Bill, 1957, [1959] S.C.R. 995.

(2) In

re: the Berubari

Union, [1960] 3 S.C.R. 250 .. ·

(3) In re: the Bill to Amend Sea Customs Act etc. [1964] 3 S.C.R. 787.

434 SUPREME COURT ltEPOR.TS [1965] l S.C.R.

accordance with the opinion expressed by this Court. That is A

why we feel no difficulty in holding that the present Reference is

competent.

As

we have already indicated, when a Reference is received

by this Court under Art. 143(1

), this Court may, in a given

case, for sufficient and satisfactory reasons, respectfully refuse

to make a report containing

its answers on the questions framed B

by

t!ie President; such a situation may perhaps arise if the ques­

tions formulated for the advisory opinion of this Court are purely

socio-economic

or political questions which have no relation

whatever with any of the provisions of the Constitution, or have

otherwise no constitutional significance.

It is with a view to

confer jurisdiction on

this Court to decline to answer questions

c

for such strong and compelling reasons that the Constitution

has

used the word 'may' in Art. 143(1) as distinct from Art. 143(2)

where the word used is 'shall'. In the present case, we are

clearly of opinion that the questions formulated for our advisory

opinion are questions of grave constitutional importance and D

significance and it

is our duty to make a report to the President

embodying our answers to

the questions formulated by him.

That takes

us to the merits of the controver'y disclosed by

the questions formulated by the President for our advisory opi­

nion. This Reference has been elaborately argued before

us.

The learned Attorney-General opened the proceedings before us

and stated the relevant facts leading to the Reference, and indicat­

ed broadly the rival contentions which the House and the High

Court sought

to raise before us by the statements of the case

filed on their behalf. Mr. Seervai, the learned Advocate-General

of Maharashtra, appeared for the House and presented before

the Court a

very_ learned, impressive and exhaustive argument.

He

was followed by several learned counsel who broadly sup­

ported the stand taken

by the House. Mr. Setalvad who appear-

ed for the Judges of the Allahabad High Court, addressed

to

us

E

F

a very able argument with his characteristic brevity and lucidity;

and he was,

in tum, followed by several

learned counsel who

appeared to support the stand taken by the Judges. During the G

course of the debate, several propositiens were canvassed before

us and a very large area of constitutional law was covered_ We

ought, therefore, to make it clear at the outset that in formulat-

ing our answers to the questions framed by the President in the

present Reference,

we propose to deal with only such points as,

in our opinion, 'have a direct and material bearing on the

prob­

lems posed by the said questions. It is hardly necessary to

emphasise that in dealing with constitutional matters, the Court

H

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SPECIAL REFERENCE ( Gajendragadkar C.l.) 4 3 5

should be slow to deal with questions which do not strictly arise.

This precaution is all the more necessary in dealing with a refer­

ence made to this Court under Art. 143 (

1).

Let us then begin by stating broadly the main

contentions

urged on behalf of the House and on behalf of the Judges and

the Advocate. Mr. Seervai began his arguments by pointing out

the fact that in dealing with reference under Art. 143(1), the

Court

is not exercising what may be described as its judicial

function. There are no parties before the Court in such a refer­

ence and there

is no /is. The opinion expressed by the Court

on the reference

is, therefore, advisory; and so, he contends that

though he appears before

us in the present reference on behalf

of the House, he wants to make it clear that the

Hou~e. does not

submit to the jurisdiction of this Court in any manner in respect

of the area of controversy covered

by the questions.

Iii other

words,

he stated that his

ap{iearance before us was without pre­

judice to

his main contention that the question about the existence

and extent of the powers, privileges and immunities of the House,

as

well as the question about the exercise of the powers and pri­

vileges were entirely and exclusively within the jurisdiction of the

House; and whatever this Court may say

will not preclude the

House from deciding for itself the points referred to us under

thi•

Reference. This stand was based on the ground that the opinion

expressed by

us is advisory and not in the nature of a judicial

adjudication between

t(ie parties before the Court as such.

The same stand

was taken by Mr. Seervai in regard to Art.

194(3) of the Constitution. Art. 194(3) deals with the question

about the powers,

priYileges and immunities of the Legislatures

and of the Members and Committees thereof. We will have occa­

sion

to deal with the provisions of this Article later on. For the

present, it

is enough to state that according to Mr. Seervai, it is

tho privilege of the House to construe the relevant provisions of

Art. 194(3) and determine for itself what its powers, privileges

and immunities are, and that being

so, the opinion expressed by

this Court on the questions relating to the existence and extent.

of its powers and privileges

will not preclude the

House frcim

determining the salJle questions for itself unfettered by the view5

of this Court. · '

Having thus made his position clear in regard to the claim

which the House proposes to make in respect of its powers and

privilege&, Mr. Seervai contended that even in England this

dualism

between the two rival jurisdictiohs claimed by the Judica­

ture and the Parliament has always existed and it still continues

. 436 SUPREME COURT REPORTS [1965] I S.C.R.

to be unresolved. On some occasions, th~ dispute .between the A

Judicature and the House.of.CommonsJ1as.assumed a very bitter

form and it' has disclosed a complete antinomy.or.contradiction in

the attitudes .adopted

by the two respective august bodies. The

.

courts· claimed that they had a right to .decide the question about

the existence and extent of powers and privileges in question and

the Parliament consistently refused

to .recognise the jurisdiction

of the courts in that behalf during the 17th, 1

Stll and 19th cen­

turies.

The

·Parliament conceded: that it could not create any

new privileges, but it ~isted on treating itself as the sole and

exclusive judge of tile existing privileges aiid was not prepared to

part .witll itS authority to determine what they were, or to deal

with their breach, and how .to punish. the delinquent citizens. · On

the other hand, the courts insisted on examining tile validity of

the orders passed by tile Parliament on the ground of breach of

privilege, .and tile dualism thus· disclosed :persisted for .many.years.

B

c

Mr. Seervai argues . tllat the House for which he appears

.adheres to the stand which the House of Commons took

in similar D .controversies.· .which Jed .to .a conflict between the Judicature and

itself on several occasions in the past. Consistently with tllis

attitude, he denies tile jurisdiction. of the Allahabad High Court

to deal with the.points raised by·Keshav Singh in his writ petition.

·Logically, ;his argument is that the presentation of the petition by

'Keshav Singh and his Advocate amounted to contempt . of tile E

House, and when :the learned Judges entertained the petition and

passed an interim order on .it, they committed contempt of the

House.

That is the view.taken by the.House, and the.propriety,

correctness,

or validity of this view is not examinable

by, the Judi­

cature in .this country.

F'

Alternatively,

Mr.,·Seervai put his argument on a slightly

different . basis. He conceded that. for over a century past, in

England, this controversy can be ·taken to have been settled to a

large extent

by agreement between the Judicature and the House

of Commons.

· :It now appears ·to be recognised by. the 'House of

Commons that the existence and · extent ·of privilege can be G

examined by the courts.

It also appears to be recognised by the

House of Commons .that

if. in exercise of its

power to. punish a

person for its contempt, it issues a speaking warrant,

it would

.be.open

to the court to consider.whether the,reasons set. out in

the .warrant amount to

contempt·Or:not. To this limited e.ttent,

the jurisdiction of the Judicature is recognised and consistently, H

for,theJast.century, .whenever:it ·became necessary .to justify the

. orders. passed by . it for its contempt, a return has always been •

SPECIAL REFERENCE (Gajendragadkar C.J.) 437

A filed in courts. Mr. Seervai, however, emphasises the fact that

even

as a result of this large measure of agreement between the

Judicature and the House

of Commons on the question about the

nature and extent of privilege, it appears

to be taken as settled

that

if an unspeaking or general warrant is

issued by the House of

Commons to punish a person who is guilty of its contempt, the

courts would invariably treat the said general warrant as conclu­

sive and would not examine the validity of the order passed by

the

House. In the present case, according to Mr.

Seenai, the

resolution which has been passed by the House against the two

learned Judges

as well as against Mr.

Solomon is in the nature of

·a general resolution and though the warrants issued against the

C Judges have been withdrawn, it

is clear that the decision of the

House and the warrants which

were initially ordered to be

issued

in pursuance of the said resolution, were in the nature of general

resolution and general warrants, and

so, it would not be open to

this Court to enquire the reasons for which the said warrants

were

D

issued. The resolution in question and the warrants issued pur­

suant to it are conclusive and must be treated

as such. The argu­

ment, therefore,

is that in answering the question formulated

under the present Reference,

we should give effect

tv this position

which appears to have been evolved by some sort of implied

agreement between the Judicature and the House

of

Commons.

E This agreement shows that the· right to determine quest;ons of

contempt and to decide adequacy of punishment for the said

contempt belong exclusively to

The House, and if in pursuance of

the said exclusive power, a general warrant

is issued, the House

can never be called upon to explain the

genesis or the reasons for

the said warrant. This itself

is an integral part of the

privilege,;

F . and powers of the House, and this integral part, according to the

House, has been brought into India

as a result of Art. 194(3) of

the. Constitution. ·In other words, the argument is that even if

this Court has jurisdiction to determine the scope and effect of

Art. 194

(3), it should bear in mind the fact that this particular

power to issue an unspeaking general

warrant and to insist upon

G the Judicature treating the said warrant

as conclusive, is a part of

the privileges to

which the latter part of Art. 194(3) refers. It is

on this broad ground that Mr. Seervai wanted us to frame our

answers to the questions which are the

subje~matter of the

Reference.

H

On the other hand, Mr. Setalvad, for the Judges, contends

that there

is no scope for importing into our Constitution the

dualism which existed

in England between the Judicature and the

House of Commons.

He contends that

there -can be no doubt

438 SUPREME COURT REPORTS [1965) l S.C.R.

that the question of construing Art. 194(3) falls within the exclu­

sive jurisdiction of this Court and the High Courts and that the

constructioe which this Court would place upon the relevant

words used

in the latter part of Art. 194(3) would finally determine

the scope, extent and character of the privileges in question.

According to Mr. Setalvad, Art. 194(3) cannot

be read in isola­

tion, but must

be read in its

context and in the light of other

important constitutional provisions, such as Aris. 32, 21 I and

226. When the material portion of Art. 194(3)

is thus read.

ii

would appear that there is no scope for introducing any antinomy

or conflict or dualism between the powers of the High Court and

those of the House

in relation to matters which have given rise

to the present questions. He further urges that it would be

idle

for the House to adopt an attitude which the House of Commons

in England appears

to have adopted in

the 17th, 18th and t 9th

centuries when conflicts arose between the said House and the

Judicature. For more than a century no attempt has been made by

the House of Commons, says Mr. &talvad, to contend that if a citi­

zen who is punished by the House for its alleged contempt com­

mitted by him would be guihy of another contempt if he mo\'ed the

Court in its habeas corpus jurisdiction, nor has any attempt been

made during this

period by the House of Commons to proceed against a lawyer who presents an application for habeas corpus

or against Judges who entertain such applications: and so, the

argument

is that we ought to deal with the present dispute on

the basis

of the common agreement which has. by convention,

been evolved between the two august and powerful ins1it111ions. the

Judicature and the Legislature.

Mr. Setalvad conceded that there appears to be some conven­

tion recognised by the English courts hy which they treat a general

or unsoeaking warrant issued by the House as usually conclusive:

but this aspect of the n,atter, according to him, is the result of

convention or comity and cannot

be treated as an integral part

of the privilege of the

Hou~e itself. The basis for evolving this

convention i< rooted in the history of England, because the Parlin­

ment wa< the highest Court of Justice at one time and it is

became of this history that the House of Commons came also to

be regarded as a superior Court of Record. Such an assumption

cannot be made in respect of the House in the present proceed­

ings. Besides, in dealing with the question about the effect of

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a general warrant, the Court cannot ignore the significance of H

Art.<. J~. 211 and 226 of the Constitution. Basing himself

broadlv on these argument~. Mr. Setalvad contends that the Con­

stitution has resolved the problem of duali<m in our country by

A

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SPECIAL REFERENCE (Gajendragadkar C.J.) 439

conferring on the High Courts and this Court the jurisdiction

to deal with claims made by the citizens whose fundamental rights

have been invaded, and that means that in this country, if an

application for

habeas corpus is made, it would be competent to

this Court or the High Courts to examine the validity of the order

passed by any authority including the Legislature, and that must

necessarily involve the consequence that an unspeaking warrant

cannot claim the privilege of conclusiveness. That, in brief, in

its broad features, is the approach adopted by Mr. Setalvad

before

us.

It will thus be seen that the main controversy disclosed by the

C

five questions formulated by the

President ultimately lies within

a

very narrow compass. Is the House the sole and

eJ1clusive judg~

of the issue as to whether its contempt has been committed where

the alleged contempt

has taken place ou'tside the four walls of

the House ? Is the House the sole and exclusive judge of the

punishment which should be imposed on the party whom it

ha~

D found to be guilty of its contempt ? And, if in enforcement of

its decision the House

issues a general or unspeaking warrant, is

the High Court entitled to entertain a habeas corpus petition

challenging the

vali<lity of the detention of the person sentenced

by the House ? The· argument urged py Mr. Seervai on behalf of

the House

is that in the case of a general warrant, the High Court

E

has no jurisdiction to go behind the warrant; and in the present

case, since it has entertained the petition and passed an order

releasing Keshav

Singh on bail without examining the warrant,

and

even before a return was filed by the respondents,

it has acted

illegally and without jurisdiction, and so, the learned Judges of

F the High Court, the Counsel, and the party are all guilty

of con­

tempt of the House. Mr.

Seervai urges that in any case, in habeas

corpus

proceedings of this character, the High Court had no

juris~

diction to grant interim bail.

It

is not seriously disputed by Mr. Setalvad that the House has

the power to inquire whether its contempt has been committed

G by anyone. even outside its four-walls and has the power to impose

punishment for such contempt; but

his argument is that having

regard to the material provisions of our Constitution, it would

not be open to the House to make a claim that its general warrant

should be treated

as conclusive. In every case where a party has

been sentenced by the House for contempt and detained, it would

H be open to

him to move the High Court for appropriate relief

under Art. 226 and the High Court would

be entitled to examine

the merits of

his pleas, even though the warrant may be general

L!Sup.C.I./65-3

440 SUPREME COURT RE!'ORTS [1965] I S.C.R.

-0r unspeaking. According to Mr. Setalvad, since the High Court A

has jurisdiction to entertain a Writ Petition for

habeas corpus

under Art. 226, it has also the power to pass an order of interim

bail. Thus, the dispute really centres round the jurisdiction

of

the High Court to entertain a habeas corpus petition even in cases

where a general

or unspeaking warrant has been issued by the

Hollse directing the detention of the party in contempt. B

Though the ultimate solution

of. the problem posed by the

questions before us would thus lie within a very narrow compass,

it is necessary to deal with some wider aspects of the problem

which incidentally arise and the decision of which will assist us

in

rendering our answers to the questions framed in

the present c

Reference. The whole of the problem thus presented before us has

to be decided in the light of the provisions .'.'oQntained in Art. 194(3)

-0f the Constitution, and in that sense, the interpretation of Art.

194(3) is really the crux of the matter. At this stage, it is neces­

sary to read Article 194 :

"194. (1) Subject to the provisions of this

Constitution and

to the rules and standing orders regu-

lating the procedure of the Legislature, there shall

be

freedom of speech in the Legislature of every State.

(2) No member o( 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

Legisla­

ture 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.

(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 the House of Commons of

Par­

liament of the Unitec; Kingdom, and of its members and

committees, at the commencement of this Constitution.

(4) The provisions of clauses (1), (2) and (3)

shall apply in relation to persons who by virtue of this

Constitution have the right to speak in, and otherwise

to take part in the proceedings of, a House of the

Legis­

lature of a State or any committee thereof as they apply

in relation to members of that Legislature."

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SPECIAL REFERENCE ( Gajendragadkar C.J.) 441

A It will be noticed that the first three material clauses of Art.

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

B emphasise that the provisions of the Constitution subject 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

fome of the provisions of the Constitution may

C 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 legisla­

tors specifically the right of freedom of speech subject to the

D 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 Art.

E 19(1)(a).

If alt that the legislators were entitled to claim was the

freedom of speech and expression enshrined

in Art. 19(1)(a), it

would have

been unnecessary to confer the same right specifically

in the manner adopted by Art. 194(1); and so, it would be legi­

timate to conclude that Art. 19(1)(a) is not one of the provisions

of the Constitution which controls the

first part of clause (1) of

F Art. 194.

Having conferred freedom of speech on the legislators, clause

(2) emphasises 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 Legisla­

ture or any committee thereof.

In other words, even if a legis-

G lator exercises his right of freedom of speech in violation, say,

of Art. 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 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

H impugned speech amounts to libel or becomes actionable or indict­

able under any other provision of the law, immunity has been con­

ferred on

him from any action in any court by this clause. He

'

SUPREME COURT REPORTS [1965] l S.C.R.

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 clau~e (2). Thus.

clause ( I ) 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.

That takes us to clause (3). The first part of this clause

empowers the Legislatures

of States to make laws prescribing their

powers, privileges and immunities;

the latter part provides that

until such laws are made, the Legislatures

in question

shall enjoy

the same powers, privileges

and immunities which the House of

Commons enjoyed at the commencement of the Constitution. The

Constitution-makers must have thought that the Legislatures

would

take some time to make laws in respect of their

power>,

priVileges and immunities. During the interval, it was clearly

necessary to confer on them the necessary powers, privileges

and

immunities. There can be little doubt that the powers, privileges

and immunities which are contemplated

by cl. (3), are incidental

powers, privileges and immunities which every Legislature must

possess in order that it may be able to function effectively, and

that explains the purpose of the latter part of clause (3).

This clause requires

that the powers, privileges and

immuni­

ties which are claimed by the House must be shown to have sub­

sisted at the commencement of the Constitution, i.e., on January

26, 1950. It is well-known that out of a large number of privi­

leges and powers which the House of Commons claimed during

the days

of its bitter struggle for recognition, some were given

up in course of time, and some

virtually faded out by desuetude;

and so, in every case where a power is daimed, .it is neces.<ary

to enquire whether it was an existing power at the relevant time.

It must also appear that the said power was not only claimed by

the House

of Commons, but was

re:ogni~ed by the English Courts.

It would obviously be idle to contend that if a particular power

which

is claimed by the House was claimed by the House of Com111ons but was not recognised by the English courts, it would

still

be upheld under the latter part of clause (3) only on the

ground that it was in fact claimed by the House

of Commons. In

other words, the inquiry which is prescribed by this clause is : is

A

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SPECIAL REFERENCE (Gajendragadkar C.J.) 443

A the power in question shown or proved to have subsisted in the

House

of Commons at the relevant time ?

B

Clause ( 4) extends the provisions prescribed by the three

pre­

ceding clauses to certain persons there.in described.

It will thus be seen that all. the four clauses of Art. 194 are

not

in terms made subject to the provisions contained in

Part III.

In fact, clause (2) is couched in such wide terms that in exercising

the rights conferred

on them by cl. (1), if the

legislators by their

speeches contravene any of the fundamental rights guaranteed by

Part III, they would not be liable for any action in any court.

c Nevertheless, if for other valid considerations, it appears that the

contents of

cl. (3) may not exclude the applicability of certain

relevant provisions of the Constitution, it would not be reasonable

to suggest that those provisions must be ignored just because the

said clause

does not open with the words

"subject to the other

provisions of the Constitution."

Jn dealing with the effect of the

D provisions contained in

cl. (3) of Art. 194, wherever it appears

that there

is

a conflict between the said provisions and the provi­

sions pertaining to fundamental rights, an attempt will have to

be made to resolve the said conflict

by the adoption of the rule

of harmonious construction. What would be the result of the

adoption of such a rule

we need not stop to consider at this

E stage.

We will refer to it later when we. deal with the decision

of this Court in

Pandit M.

S. M. Sharma v. Shri Sri Krishna Sinha

& Others(').

The implications of the first part of clause (3) may, however,

be examined at this stage. The question

is, if the Legislature ot

F a State makes a law which prescribes its powers, privileges and immuniti~s, would this law be subject to Art. 13 or not ? It may

be recalled that Art.

13 provides that laws inconsistent with or in

derogation of the fundamental rights would

be void. Clause (1)

of Art. 13 refers in that connection to the laws in force in the

territory

of India immediately before the commencement of the

G Constitution, and clause

(2) refers to laws that the State shall make

in future.

Prima facie, if the legislature of a State were to make

a law

in pursuance of the

11uthority conferred on it \>Y clause (3),

it would be law within the meaning of Art. 13 and clause (2) of

Art.

13 would render it void if it contravenes or abridges the

fundamental rights guaranteed by

Part III. As we will presently

H point out, that

is the effect of the decision of this Court in Pandit

Sharma's(')

case. In other words, it must now be taken as settled

(I) [1959] Supp. I S.C.R. 806.

444 SUPREME COURT REPORTS (1965] I S.C.R.

that if a law is made under the purported exercise of the power A

conferred

by the first part of clause ( 3), it will have to satisfy the

test prescribed by the fundamental rights guaranteed by the

Cons­

titution. If that be so, it becomes at once material to enquire

whether the Constitution-makers had really intended that the limi­

tatiollS prescribed by the fundamental rights subject to which alone

a law

can be made by the Legislature of a State prescribing its

powers, privileges and immunities, should be treated as irrelevant

in construing the latter part of the said clause. The same point

may conveniently be put in another form. If it appears that any

of the powers, privileges and immunities claimed by the House

are inconsistent with the fundamental rights guaranteed by the

Constitution, how

is the conflict going to be resolved. Was it

the intention

of the Constitution to place the powers, privileges

and immunities specified in the latter part of cl. ( 3) on a much

higher pedestal than the law which the Legislature

of a State may

make in that behalf on a future date? As a matter of

construc­

tion of clause (3), the fact that the first part of the said clause

refers to future laws which would be subject to fundamental rights,

may assume significance in interpreting the latter

part of clause

(

3). That, in brief, is the position of the first three material

provisions of Art. 194.

The next question which faces us arises from the preliminary

contention raised by Mr. Seervai that by his

appearance before us

on behalf of the House, the House should not be taken to have

conceded to the Court the jurisdiction to construe Art. 194(3) so

as to bind it. As we have already indicated, his stand is that in

the matter of privileges, the House

is the sole

and exclusive judge

at all stages

.. It may be that technically, the advisory opinion

rendered by this Court on the Reference made to

it by the

Presi­

dent may not amount to judicial adjudication properly so-called

and since there arc no parties as such before the

Court in the

Reference, nobody would be bound by

our

amwers. But apart

from this technical aspect of the m:ittcr, it is necessary that we

should. determine the basic question as to whether even in the

matter

of privileges, the Constitution confers on the House sole

and exclusive jurisdiction as claimed hy Mr.

Seervai. It is com­

mon ground that the powers have to be found in Art. 194 ( 3).

That provision is the sole foundation of the powers. and no power

which is not included

in it can be claimed by the House;

and so,

at the very threshold of our discussion, we must decide ·this

question.

In dealing with this question, it is necessary to bear in mind

one fundamental feature of a fder~! :o~s!itution. Tn England,

B

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SPECIAL REFERENCE (Gajendragadkar C./.) 05

Parliament is sovereign; and in the words of Dicey, the three distin­

guishing features of the principle of Parliamentary Sovereignty are

that Parliament has the right to make or unmake any law what­

ever; that no person or body

is

recognised by the law of England

is having a right to override or set aside the legislation of Parlia­

ment; and that the right

or power of Parliament extends to every

part of the Queen's dominions(').

On the other hand, the essen­

tial characteristic of federalism is' "the distribution of limited exe­

cutive, legislative and judicial authority among bodies which are

co-ordinate with and independent of each others". The supremacy

of the constitution is fundamental to the existence of a federal

State in order to prevent either the legislature of the federal unit

or those of the member States from destroying or impairing that

delicate balance of power which satisfies the particular require­

ments of States which are desirous of union, but not prepared to

merge their individuality

in a unity. This supremacy of the con­

stitution

is protected by the authority of an independent judicial

body to act

as the interpreter of a scheme of distribution of powers.

Nor

is

anyc change possible in the constitution by the ordinary

process of federal or State legislation('). Thus the dominant cha­

racteristic of the British Constitution cannot be claimed by a

federal constitution like ours.

Our Legislatures have undoubtedly plenary powers, but these

powers are controlled by the basic concepts of the written Con­

stitution itself and can be exercised within the legislative field.!!

allotted to their jurisdiction by the three Lists under the Seventh

Schedule; but beyond the Lists, the Legislatures cannot travel.

They can no doubt exercise their plenary legislative authority and

discharge their legislative functions

by virtue of the powers

con­

ferred. on them by the relevant provisions of the Constitution;

but the basis of the power

is the Constitution itself. Besides, the

legislative supremacy of our Legislatures including the Parliament

is normally controlled by the provisions contained

in

Part Ill of

the Constitution.

If the Legislatures step beyond the legislative

fields assigned to them, or acting within their respective

field.!!,

they trespass on the fundamental rights of the citizens in a manner

not justified by the relevant articles dealing with the said funda­

mental rights, their legislative action~ are liable to be struck down

by courts

in India. Therefore, it is necessary to remember that

though our Legislatures have plenary powers, they function within

the limits prescribed by the material and relevant

provisiom of the

Constitution.

(1) Dicey, The

La.w of the Constitution 10th. ~~d. ;;. :;.;txiv, xxxv.

(2) 'bid p. Ixxvii.

-446 SUPREME COURT REPORTS [1965] l S.C.R.

In a democratic country governed by a written Constitution, it A

is the Constitution which is supreme and sovereign. It is no doubt

true that the Constitution itself

can be amended by the

Parliament, but that

is possible because Art. 368

of the Constitu­

tion itself makes a provision in that behalf, and the amendment

of the Constitution can be validly made only by following the

procedure prescribed by the said article.

That shows that even B

when the

Parliament purports to amend the Constitution, it has to

comply with the relevant mandate of the Constitution itself.

Legislators, Ministers, and Judges all take oath of allegiance to

the Constitution, for it

is by the relevant provisions of the Consti­

tution that they derive their authority and jurisdiction and it

is to

the provisions of the Constitution that they owe allegiance. C

Therefore, there can be no doubt that the sovereignty which can

be claimed by

the Parliament in England, cannot be claimed by

any Legislature in India in the literal absolute sense.

/ There

is another aspect of this matter which must also be

mentioned; whether or not there is distinct and rigid separation

of powers under the Indian Constitution, there is no doubt that

the Constitution has entrusted to the Judicature in this country

the task of construing the

provisions of the Constitution and of

safeguarding the fundamental rights of the citizens. When a

statute

is challenged on the ground that it has been passed by a

Legislature without authority,

or has otherwise unconstitutionally

trespassed on fundamental rights,

it is for the courts to determine

the dispute and decide whether the law passed by the legislature

is valid or not. Just as the legislatures are conferred legislative

authority and their functions are normally

confined to legislative

functions, and the function> and authorityluf the executive lie

within the domain of executive authority, so th~ jurisdiction and

authority of the Judicature in thi1 country lie within the dom'.iin

of adjudication. If the validity of any law is challenged before the

courts, it is never suggested that the material question as to whether

legislative authority has been exce·~dcd or fundamental rights have

been contravened, can be decided bv the legislatures themselves.

Adjndir~tion of such a dispute is entrusted solely and exclmivcly

to the Judicature of this country; r.Dd so, we feel no difficulty in

holding that the decision about the construction of Art. 194(3)

must ultimately rest exclusively wirh the Judic~tore of r.his country.

That is why we must over-rule Mr. Secrvai's argument that the

question of determining the nature, wipe and effect of the powers

of the House cannot he said to lie excJu,ively within the jurisdic­

tion of thi> Court. This conclusion. however, would nnt impair

the validity of Mr. Seervai's contention that the advisory opinion

D

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SPECL'L REFERENCE (Gajendragadkar C.J.) 44 7

A rendered by us in ·the present Reference proceedings is not adjudi­

cation properly so-called

an:d would bind no parties as such.

In coming to the conclusion that the content of Art. 194(3)

must ultimately

be determined by courts and not by the legislatures,

we are

not unmindful of the grandeur and majesty of the task which

B has been assigned

to the Legislatures under the Constitution.

Speaking broadly, all the legislative chambers

in our country today

are .playing a significant role

in the pursuit of the ideal of a

Wel­

fare State which has been placed by the Constitution before our

country, and that naturally gives the legislative chambers a high

place

in the making of history

to<lay. The High Courts also have

C

to

play an equally significant role in the development of the rule

of law

and there can be little doubt that the successful working

of the rule of law is the basic foundation of the democratic way

of life.

In this connection it is necessary to remember that the

status, dignity and importance of these two respective institutions,

the Legislatures and the Judicature, are derived primarily from

D the

status, dignity and importance of the respective causes that

are assigned

to their charge by the Constitution. These two

august bodies as well as the

Ex~cutive which is another important

constituent of a democratic State, miist function not in antinomy

nor

in a spirit of hostility,

but·rationally, harmoniously and in a

spirit of understanding within their respective spheres, for such

E harmonious working of the three constituents of the democratic

State alone will help. the peaceful development, growth and stabi­

lisation of the democratic way of life in this country.

But when, as

in the

p:esent case, a controversy arises between

the House and the High Court,

we must deal with the problem

F objectively and impersonally. There is

no occasion to import

heat into the debate

or discussion

and· no justification for the use

of strong language.

The problem presented to us by the present

reference is one of construing the relevant provisions of the Con­

stitution and though its consideration may present some difficult ·aspects, we must attempt to find the answers as best we can. In

G dealing with a dispute like the present which concerns the jurisdic­

tion, the dignity and the indepen~ence of two augrist bodies in a

State. we must remember that the objectivity of our approach itself

may incidentally be on trial.

It is, therefore, in a spirit of detached

objective enquiry which

is the distinguishing feature of judicial

process that we propose

to find solutions to the questions framed

H for our advisory opinion.

If ultimately we come to the conclusion

that the view pressed before us by Mr. Setalvad for the High Court

ls erroneous, we would not hesitate to pronounce

our verdict

448 SUPREME COURT REPORTS [1965] l S.C.R.

against that view. On the other hand, if we ultimately come to A

the conclusion that the claim made by Mr. Seervai for the House

cannot be sustained, we would not falter to pronounce

our verdict

accordingly. In dealing with problems

of this importance and

significance, it

is essential that we should proceed to discharge our

duty without fear or favour, affection or ill-will and with the full

consciousness that it

is our solemn obligation to uphold the B

Constitution and the laws.

It would be recalled that Art.

194(3) consists of two parts.

The first part empowers the Legislature to define by law from

time to time its powers, privileges and immunities, whereas the

second

part provides that until the legislature chooses so to define c

its powers, privileges and immunities, its powers, privileges and

immunities would he those of the House of Commons o[ the

Par­

liament of the United Kingdom and of its members and com­

mittees, at the commencement

of the Constitution. Mr ..

')eervai's

argument is that the latter part of Art. 194(3) expressly provides

that all the powers which vested in the House of Commons

at D

the relevant time, vest in the House. This broad claim, however,

cannot

be accepted in its entirety, because there arc some

powers

which cann9t obviously be claimed by the House. Take the pri­

vilege of freedom

of access which is exercised by the House of

Commons as a body and through its

Speaker "lo have at all times

the right to petition, counsel,

or remonstrate with their

Sovereign E

through their chosen representative and have a favourable con­

struction placed on his words was justly re!!ardcd by the Commons

as fundamental privilege(')". It is hardly necessary to point out

that the House cannot claim this privilege. Similarly, the privi­

lege

to pass acts of attainder and the privilege of impeachment

cannot be claimed by the House. The

House of Commons also

claims the privilege in regard to its own Constitution. This privi­

lege is expressed in three ways. first by the o~dcr of new writs to

fill vacancies that arise in the Commons in the course of a. parlia­

ment; secondly, by the trial of controverted elections: ;rnd thirdly,

by determining the qualifications

of its members in cases of doubt("). This privilege again, admittcdlv. cannot be claimed by

the House. Therefore. it would not he correct to say that all

powers and privileges which were possessed by the House of

Commons at the relevant time can be claimed by the House.

In construing the relevant provision of Art. 19413). we must

deal with the question

in the light of the

previous decision of thi9

-.

(I) Sir T. Erski11e May's Parliamentary Prartic(' (16th ed.) p. 86.

(2) Ibid, p. I 7S.

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SPECIAL REFERENCE ( Gajendragadkar C.J.) 44 9

A Court in Pandit Shanna's(') case. It is, therefore, necessary to

recall what according to the majority decision in that case,

is the

position of the provision

con;tained in Art. 194(3 ). In that

case, the Editor of the English daily newspaper,

Search Light of Patna, had been called upon by the Secretary of the Patna Legis-

B

c

lative Assembly to show cause before the Committee of Privileges

why appropriate action should not be taken against

him for the

breach of privileges of the

Speaker and the Assembly in that he

had published in its entirety the speech delivered· in the Assembly

by a Member, portions of which had been direcfed

to be expunged

by the Speaker. The Editor who moved this Court under Art. 32,

contended that the said notice and the action proposed to

be

taken by the Committee contravened his fundamental right of

free­

dom of speech and expression under Art. 19 (1 )(a), and also

trespassed upon the protection of his personal liberty guaranteed

under Art. 21. It

is on these two grounds that the validity of the

notice was impeached by him. This claim was resisted by the

D House by relying on

Art. 194(3). Two questions arose, one was

whether the privilege claimed by the House was a subsisting privi­

lege in England at the relevant time; and the other was, what was

the result of the impact of Articles 19(1)(a) and 21 on the pro­

visions contained in the latter part of Article 194 ( 3)? The majo­

rity decision was that the privilege in question was subsisting at the

E relevant time and must, therefore, be deemed to be included under

the latter part of Art.

194(3). It also held that Art. 19(1)(a)

did not apply, because under the rule of harmonious construction,

in a case like the present where Art. 19 (1

)(a) was in direct

conflict with Art. 194 (

3), the particular provision in the latter

article would prevail over the general provision contained in the

F former; it further held that though Art.

21 applied, it had not

been contravened.

G

H

The minority view, on the other hand, was that the privilege

in question had not been established in fact, and that alternatively,

if it be assumed that such privilege

was established and was,

therefore, included under the latter part of Art.

194(3), it must be

controlled by Art. 19(1)(a) on the ground that fundamental rights

guaranteed by

Part III of the Constitution were of paramount

importance and must prevail over a provision like that contained

in Art. 194(3) which may be inconsistent with them.

At this stage, it would be useful to indicate broadly the points

decided both by the majority and minority decisions

in that case.

Before the Court, it

was urged by the petitioner that though Art.

(1) (19591

Supp. 1 S.C.R. 806.

450 SUPREME COURT REPORTS [1965] I S.C.R.

194 ( 3) had not been made subject to the provisions of the Con­

stitution, it docs not necessarily mean that it is not so subject, and

that the several clauses of Art. 194 should not be treated as distinct

and separate provisions but should be read as a whole and that,

so read, all the clauses should be taken as subject to the provi­

sions of the Constitution which, of course, would include Art.

19(1)(~). This argument was rejected both by the majority and

the minority views.

The next argument urged in that case was that Art. 194(1)

in reality operates as an abridgement of the fundamental right of

freedom of speech conferred by Art.

19(1 )(a)

when exercised in

the State Legislatures, but Art. 194(3) does not, in terms, purport

to be an exception to Art. 19( I )(al. This argument was also

rejected by both the majority and the minority views.

It

was

pointed out by the majority decision that clause (l) of Art. 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 Art. 19 (I ) (a), because this 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 arc included in the first part

of Art. I 94(1).

The third argument urged by the petitioner was that Art. 19

enunciates a transcendental principle and should prevail

over the provisions

of Art. I 94(3), particularly because these latter

provisions were

of a transitory character. This conten!ion was

rejected by the majority view,

but was upheld by the minority

view.

The fourth argument urged was tl:at if a law is made by the

legislature prescribing its powers,

privileg~s and immunities, it

would be subject to Art. 13 of the Constitution and would become

void

to the extent it contravenes the fundamental rights enshrined

in

Part Ill. This contention was accepted by both the majority

and the minority decisions.

That left one more point to be considered and it had reference

to the observations made

in an

e1rlier decision of this Court in

G11n11pati Keshavram Reddy v. Nafi.ml Hasan and the State of

U.P. (

1

). The majority decision has commented 011 this earlier

decision

and has observed that the said decision was based entirely

on a concession and cannot, therefore, be deemed to be a

con­

sidered decision of this Court. As we will presently point out,

(I) A.l.R. 19S4 S.C. 636.

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SPECIAL REFERENCE (Gajendragadkar C.J.) 451

the said decision dealt with the applicability of Art. 22(2) to a

case falling under the latter part of Art. 194(3

). The minority

opinion, however, treated the said decision

as a considered deci­

sion which

was binding on the Court.

We ought to add that the majority decision, in terms, held

that Art.

21 applied, but, on the merits, it came to the conclusion

that its alleged contravention had not been proved.

On the

minority

view it was unnecessary to consider whether Art. 21 as

such applied, because the said

view treated all the fundamental

rights guaranteed

by Part III as paramount and, therefore, each

one of them would control the provisions of Art. 194(3).

It 'would thus be seen that in the case of Pandit Sharma (

1

), con­

tentions urged

by the petitioner did not raise a;'general issue as to

the relevance and applicability of all the fundamental rights

guaranteed

by Part III at all. The contravention of only two

articles

was pleaded and they were Articles 19(l)(a) and 21.

Strictly speaking, it was, therefore, unnecessary

to consider

the larger issue

as to whether the latter part of Art. 194(3) was

subject to the fundamental rights in general, and indeed, even on

the majority view it could not be said that the said view excluded

the application of all fundamental rights, for the obvious and

simple reason that Art.

21 was held to be applicable and the merits

of the petitioner's argument about its alleged contravention in his

case were examined and rejected. Therefore,

we do not think it

would

be right to read the majority decision as laying down a

general proposition that whenever there

is a conflict between the

provisions of the latter part

of Article 194(3) and any of the pro­

visions of the fundamental rights guaranteed

by Part III, the latter

must always yield to the former. The majority decision, therefore,

must be taken to have settled that Art. 19(1)(a) would not apply,

and Art.

21 would.

Having reached this conclusion, the majority decision has

incidentally commented on the decision in

Gunupati Keshavram

Reddy's(

2

)

case. Apart from the fact that there was no contro­

versy about the applicability of Art. 22 in that case, we ought to

point out, with respect, that the comment made by the majority

judgment on the earlier decision

is partly not accurate. In that

case, a Constitution Bench. of this Court

was concerned with the

detention of Mr. Mistry under an order passed by the Speaker of

the Uttar Pradesh Legislative Assembly for breach of privilege

of the said Assembly. The validity of Mr.

fv!istry's detention was

challenged on the ground that it had contravened Art. 22(2) of

(I) [1959] Supp. I S.C.R. 806. (2) A.LR. 1954 S.C. 636.

452 SUPREME COURT REPORTS [l 965] I S.C.R.

the Constitution. The facts alleged in support of this plea were A

admitted to

be correct by the Attorney-General, and on those

admitted facts, the

Court held that Mr. Mistry·s detention was

clearly invalid. Referring to this decision, the majority judgment

bas observed that

it

"proceeded entirely on a concession of counsel

and cannot be regarded

as a considered opinion on the

subject."

There is no doubt that the first part of this comment is not B

accurate. A concession

was made by the Attorney-General not on

a point of law which

was decided by the Court,

h11t on a point of

fact; and so, this part of the comment cannot strictly be said to

be justified. It

is, however, true that there is no discussion about

the merits of the contention raised on behalf of Mr. Mistry and

to that extent, it may have been permissible to the majority judg-C

ment to say that it

was not a considered opinion of the Court.

But,

as we have already pointed out, it was hardly necessary for

the majority decision to deal with the point pertaining to the

applicability of Art. 22(2), because that point did not arise

in

the proceedings before the Court in Pandit Shanna's(') case.

That

is why we wish to make it clear that the obiter observations D

made

in the majority judgment about the validity or correctness

of the earlier decision of this Court in

Gunupati

· Keshavram

Reddy's(2) case should not be taken as having decided the point

in question.

In other words, the question as to whether Art.

22(2) would apply to such a

case may have to be considered by E

this Court

if and when it becomes necessary to do so.

Before

we

pan with the decision of this Court in Pandit

Sharma's(

1

)

case, it is necessary to refer to another point. We

have already observed that the majority decision has accepted the

contention raised by the petitioner in that case that

if a law were

passed by the Legislature of a State prescn'bing its powers, privi-F

leges and immunities

as authorised by the first part of Art.

194(3),,it would be subject to Art. 13. Mr. Seervai has attempt-

ed

to challenge the correctness of this conclusion. He contends that

the power conferred on the legislatnres

by the first part of Art.

194 (

3) is a constitutional power, and so, if a Jaw is passed in

exercise of the said power, it will be outside the scope of Art. 13.

We are unable to accept this contention. It is true that the power

to make such a law has been conferred on the legislafures by the

first part of Art. 194(3); but when the

State Legislatures purport

G

to exercise this power, they will undoubtedly be acting under

Art. 246 read with Entry 39 of List IL The enactment of such

a

Jaw cannot be said to be in exercise of a constituent power. and H

~' such a law will have to be treated as a law within the meaning

(t) (1959] Supp. I S.C.R. 806. (2) A.I.R. 1954 S. C. 636.

-

SPECIAL REFERENCE (Gajendragadkar C.J.) 453

A of Art. 13. That is the view. which the majority decision expressed

in the case

of Pandit Sharma (

1

), and we are in respectful

agree­

ment with that view.

Mr. Seervai attempted to support his contention by referring

to some observations made

by Venkatarama Aiyar J.

in Anantha-

B krishnan v. State of Madras(?) .. In that case, the learned Judge

has observed that "[Art. 13] applies in terms on!~' to laws in force

before the commencement

of the Constitution and to laws to be

enacted

by the

States, that is, in future. It is only those two classes

of

laws that are declared void as against the provisions of Part III.

It

does not apply to the Constitution itself. It does not enact that

c the other portions of the Constitution should be void as against

the provisions

in Part III and it would be surprising if it did, see­

ing that all of them are parts of one organic

whole." This prin­

ciple

is obviously unexceptionable. This principle could have

been invoked

if it had been urged before us that either the first or

the second part of Art. 194(3) itself

is invalid because it is incon-

D sistent with the relevant provisions

in Part III which provides for

fundamental rights. That, however,

is not the argument of Mr.

Setalvad, nor

was it the argument urged before this Court in the

case of

Pandit Sharma('). The argument was and is that if in

pursuance of the power conferred by the first part of Art. 194 (

3)

a law is made by the legislatu.re, it is a law within the meaning of

E Art. 13, and

this argument proceeds on the words of Art. 13 (2),

itself. Art. 13 ( 2) provides

that the State shall not make any law

which takes away or abridges the rights conferred by Part III and

any law made

in contravention of this clause shall, to the extent

of the contravention, be

void. The law with which we are

dealing

does not purport to amend the Constitution and would not, there-

F fore, form part of the Constitution when it is passed; like other

laws passed by the Legislatures in exercise of the legislative

powers conferred on them; this law would also

be law within

the meaning of Art. 13, and

so, it is unreasonable to contend

that the

view taken by this Court in the case of Pandit

Sharma(')

G that such a law would be subject to the fundamental rights and

would fall within the mischief of Art.

13(2), requires reconside­

ration. The position, therefore,

is that in dealing with the pre­

sent dispute

we ought to proceed on the basis that the latter

part of Art.

194(3) is not subject to Art. 19(1)(a), but is

sul:>-

H

ject to Art. 21.

The next question which

we ought to consider is : was it the

intention

of the Constitution to perpetuate the dualism which

(I) [1959) Supp. 1 S. C.R. 806. (2) I.L.R. [1952] Mad. 933, 951.

•

454 SUPREME COURT REPORTS [1965] l S.C.R.

rudely disturbed public life in England in the' 17th, 18th and 19th A

centuries ? The Constitution-makers were aware of several ·un­

happy situations which arose as a result of the conflict between the

Judicature and

the Houses of

Parliament and they.knew that these

situations threatened to create a deadlock in the public life of

England. When they enacted Art. 194(3), was

it their intention

to

leave this conflict at large, or have they adopted a B

scheme of constitutional provisions to resolve that conflict ? The

answer to this question would obviously depend upon a harmoni-

ous construction_ of the _relevant :provisions· of . the Constitution

itself. - .

Let us first take Art. 226. This Article confers very wide C

powers

on every High Court throughout the territories in relation

to which it exercises jurisdiction, to issue to any person or autho­

rity,

including in appropriate cases al).y Gove=ent, within those

territories directions, orders

or writs,

including writs in the nature

of habeas corpus, ma11damus, prohibition, quo' warranto, certio­

rari, or any of them for the enforcement of any of the rights con-D

ferred

by Part I1I and for any other purpose. It is

hardly neces­

sary to emphasise that the language used by Art.

226 in conferring

power

on the High Courts is -very wide. Art. 12 defines the

"State" as including the Legislature of such State, and so, prima

facie,

the power conferred on the High Court under Art. 226(1)

can, in a proper case, be exercised even against the Legislature. E

If an application is made to the High Court for the issue of a writ

of habeas corpus, it

would not ·be competent to the House to

raise a preliminary objection that the High Court has no jurisdic­

ti_on to entertain the application because .the detention is by an

order of the House. Art. 226 ( 1) read by itself, does not seem to

permit such a plea to be raised. Art. 3 2 which deals ~th the F

power

of this Court, puts the matter on a still higher

pedestal;

the right to move this Court by appropriate proceedings for the

:enforcement of the -fundamental rights is itself a guaranteed

fundamental right, and so, what we have said about Art. 226( 1) is

still more true about Art.

32(1).

Whilst we are considering this aspect of the matter, it is G

relevant

to emphasise that the conflict which has arisen between

the High Court and the House is, strictly speaking, not a

confiict

, between the High Court and the House as such, but between the

Hou.'e and a citizen of this country. Keshav Singh claims certain

fundamental rights which are guaranteed by the Constitution and

11

he seeks· to move the High Court under Art. 226 on the ground

that his fundamental rights have been contravened illegally. The

High Court purporting to-exercise its power under Art. 226 ( 1), . _

-------------

• ...,

•

•

•

SPECIAL .REFERENCE (Gajendragadkar C.J.) . 455

A seeks t? examine the merits of the claims made by Keshav Singh

and issues an interim order. It is this interim order which has led

to the presen( unfortul!ate controversy. No doubt, by virtue of

. the resolution passed by the House requiring the Judges .to appear

before the Bar of the House to explain their conduct, the con­

troversy has developed into one between the. High Court and the •

B House; but it is. because the High Court in the discharge of its

duties as such Court intervened

to enquire into the allegations

made by a citizen that the Judges have been compelled to enter . the arena. Basically and fundamentally, the controversy is

between a citizen of Uttar Pradesh and the Uttar Pradesh Legis-

C lative Assembly. That is why in dealing with the question about

the extent

of the powers of the House in dealing with cases of

contempt committed outside its four-walls, the provisions of Ari.

'226 and Art. 32 assume significance. We have already pointed·

out that in Pandit Sharma(

1

)

this Court has held that Art. 21

apiJiies where powers are exercised by the legislature under the·

D latter part of Art. 194(3). If a citizen moves the High Court

on the ground that

his fundamental right under Art. 21 has been

contravened, the High Court would

be entitled to examine his

claim, and that itself would introduce some limitation on the

extent of the powers claimed

by the House in the present

pro-­

ceedings. .

E There are two other articles to which reference must be made..

Art. 208 ( 1) provides that a House of the Legislature of a State

may make rules for regulating, subject to the provisions of this

Constitution, its procedure and the conduct of its business. This

provision makes it perfectly clear that if the House were to make

any rules as prescribed by it, those rules would be subject to the·

F fundamental rights guaranteed by Part III. In other words, where

the House makes rules for exercising its powers under the latter

part of Art. 194(3), those rules must be subject to the fundamen-·

tal rights of the citizens.

Similarly, Art.

212(1)

makes a provision which is relevant.

G

It

lays down that the validity of any proceedings in the Legis­

lature of a State shall not be called in question on the ground of'

any alleged irregularity of procedure. Art. 212(2) confers

immunity on the officers and members of the Legislature in whom

powers are vested

by or under the Constitution for regulating

pro-·

cedure or .the conduct of business, or for maintaining order, in

H

the Legislature from being subject to the jurisdiction of any

court·

in respect of the exercise by him of those powers. Art. 212( 1 )·

(I) [1959] Supp. 1 S.C.R. 806.

L!Sup.C.T./65-4 ·

456 SUPREME COURT REPORTS [1965] 1 s.c.R.

seems 10 make ii possible for a cirizen 10 call in question in the A

appropriate courr of law !he validity of any proceedings inside the

legislative chamber

if his case is that !he said proceedings suffer

not from mere irregularity of procedure, but from an illegality.

If the impugned procedure

i' illegal and unconstitutional, it

would be open to be scrutinised in a court of law, though such

scrutiny

is prohibited if the complaint against the procedure is no

more than this that the procedure was irregular. That again

is

another indication which may afford some assistance in constru-

ing the scope and extent of the powers conferred

on the House by

Art.

194(3).

That takes 'us to Art.

211. This article provides that no

-discussion shall take place in the Legislature of a State with res­

pect to the conduct of any Judge of the Supreme Court or of a

High Court

in the discharge of his duties. This provision amounts

to an absolute constitutional prohibition against any discussion in

the Legislature of a

State in respect of the judicial conduct of a

Judge

of this Court or of the High Court. Mr. Setalvad who

appeared for the Judges has, based his argument substantially on

the provisions of !his article.

He contends that the

unquali;.ed

and absolute terms in which the constitutional prohibition is

·couched in Art. 211 unambiguously indicate that the conduct of a

Judge in the discharge of his duties can never become the subject­

matter of any action taken by the House in exercise of its powers

or privileges conferred by the latter part of Art. 194 ( 3). If a

Judge in the discharge of his duties commits contempt

of the

House, the only

step that can be taken against him is prescribed

by Art.

12

I. Art. 121 provides that no discussion shall take

place in Parliament with respect to the conduct of any Judge of

the Supreme Court

or of a High Court in the discharge of

hi'

duties except upon a motion for presenting an address to the.

President praying for the removal of the Judge as .hereinafter

provided. Reading Articles 121 and 211 together, two points

clearly emerge.

111e judicial conduct of the Judge cannot be

discussed in the

State Legislature. JI can be discussed in the

Parliament only upon a motion for presenting an address to the

President praying for the removal of the Judge. The Constitu­

tion.makers attached so much importance to the independence of

the Judicature

in this country that they

tliought it necessary to

place them beyond any controversy, except in the manner provided

by Art. 121.

If the judicial conduct of a Judge cannot be

dis­

cussed in the House, it is inconceivable that the same conduct

can be legitimately made the subject-matter of action by the House

II

c

D

E

F

G

II

A

B

c

D

E

F

G

H

SPECIAL REFERENCE (Gajendragadkar C.J.) 457

in exercise of its powers under Art. 194(3). That, in substance,

is the principal argument which has been urged before us by

Mr. Setalvad.

On the other hand, Mr. Seervai has argued that the effect of

the provisions contained in Art. 211 should not be exaggerated.

He points out that Art. 211 appears in Chapter III which deals

with the State Legislature and occurs under the topic "General

Procedure", and so, the only object which it is intended to serve

is the regulation of the procedure inside the chamber of the

Legislature. He has also relied on the provisions of Art. 194(2)

which expressly prohibit any action against a member of the

Legislature for anything said or any vote

given by him

in the

Legislature.

In other words, if a member of the Legislature

con­

travenes the absolute prohibition .prescribed by Art. 211, no action

can

be taken against him in a court of law and that, says Mr.

Seervai,

shows that the significance of the prohibition contained

iri Art. 211 should not be overrated. Besides, as a matier of

construction, Mr. Seervai suggests that the failure to comply with

the prohibition contained in Art. 211 cannot lead to any consti·

tutional consequence, and in support of this argument, he has

relied on a decision of this Court in

State of

U.P. v. Manbodhan

Lal Srivastava (

1

). Jn. that case, this Court was. dealing with the

effect of the provisions contained in Art. 320 of the Constitution.

Art. 320 prescribes the functions of the Public Service Commis­

sions, and by clause 3(c) it has provided that the Union Public

Service Commission or the State Public Service Commission, as

ihe case may be, shall be consulted on all disciplinary matters

affecting a person serving under the Government of India or the

Goveq1ment of a State in a civil capacity, including memorials or

petitions relating to such matters.

It was held that the provisions

of this

clause. were not mandatory and did not confer any right on

a public servant,

so that the absence of consultation or any

irregu­

larity in consultation did not afford him a cause of action in a

court of

Jaw. Mr. Seervai's argument is that the words used in

Art. 211 should be similarly

corntrued and the prohibition on

which Mr. Setalvad relies should be deemed to be merely directory

and not mandatory.

We are not impressed by Mr. Seervai's arguments. The fact

that Art.

211 appears under a topic dealing with

"Procedure Gene­

rally", cannot mean that ihe prohibition prescribed by it is not

mandatory.

As we have already indicated,

in trying to appreciate

the full significance of this prohibition,

we

must read Articles 211

(I) [1958] S.C.R. 533.

~58 SUPREME COURT REPORTS [1965) I S.C.R.

and 121 together. It is true that ,t. 194(2) in terms provides

for immunity

of action in any court in respect of a speech made

by a member

or a vote given by him in the Legislative Assembly.

But this provision itself emphatically brings out the fact that the

Constitution was

anxious to protect full freedom of speech and

expression inside the legislative chamber, and so, it took the pre­

caution of making a specific provision

to safeguard this freedom

of

sp~ech and expression by saying that even the breach of the

constitutional prohibition prescribed by Art. 211 should not give

ri'IC to any action. Undoubtedly, the Speaker would not permit

a member to contravene Art. 211; but if, inadvertently,

or other­

wise, a speech

is

made within the Jcgislative chamber which -:on­

travenes Art. 21 L the Constitution-makers have given protection

to such speech from action in any court. The House it,elf may

and would, no doubt, take action against him.

It is also true that if a question ari~es as to whether a speech

contravenes Art. 211

or not, it

would be for the Speaker to give

his ruling on the point. In dealing with such a question, tile

Speaker may have to consider whether the observations which a

member wants to make are in rclatio11 to the conduct of a Judge

in discharge

of his duties, and in that sense, that is a matter for

the Speaker to decide. But the significant fact still remains that

the Constitution-makers thought

it

necessary to make a specific

provision by

Art. 194(2) and that is the limit to which the Consti­

tution has gone in its objective of securing cor.1pletc

freedom of

speech and expression within the four-walls of the legislative

chamber.

The latter part of Art. 194(3 J makes

n;i such exception, and

A

B

c

D

E

so, it would be logical to hold that whereas a speech made in con-F

travention

of Art. 211 is protected from action in a court by Art.

194(2), no such exception

or protection is provided in prescribing

the powers

and privileges of the House under the latter part of

Art. 194(3). If a Judge in the discharge of his duties passes an

order or makes observations which in the opinion of the House

amount

to contempt, and the House proceeds to take action against G

.the Judge in that behalf, such action

on the part of the House

cannot

be protected or justified by any specific provision made by

the latter

part of Art. 194(3). In our opinion, the omission to

make any such provision when contrasted with the actual provi­

sion made by Art. 194(2)

is not without significance. In other

words; this contrast leads

to the inference that the Constitution-H

makers took the view that the utmost that can be done

to assure

absolute freedom of speech and expression inside the legislative

B

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E

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SPECIAL REFERENCE (Gajendragadkar C.J.) 459

chamber, would be to make a provision in Art. 194(2); and that is

about all. The conduct of a Judge in relation to the discharge of

his duties cannot be the subject-matter of action in exercise of the

powers and privileges

of the House. Therefore, the position is

that the conduct of a Judge in relation to the discharge of his

duties cannot legitimately be disoussed inside the House, though

if it is, no remedy lies in a court of law. But such conduct cannot

be made the subject-matter of any proceedings under the latter

part

of Art. 194(3). If this were not the true position, Art. 211

would amount to a meaningless declaration and that clearly could

not have been the intention of the Constitution.

Then,

as regards the construction of Art. 211 itself, Mr.

Seervai

is no doubt in a position to rely upon the decision of this Court

in

State of U.P. v. Manbodhan Lal Srivastava(

1

). But it would

be noticed that in coming to the conclusion that the provision

con­

tained in Art. 320(3)(c) was not mandatory, this Court has referred

to certain other facts which detem1ined the said construction. Even

so, this Court has accepted the principle laid down by the

Privy

Council in Montreal Street Railway Company v. Normandin(')

wherein the Privy Council observed that "[t]he question whether

provisions in a statute are directory

or imperative has very

fre­

quently arisen in this country, but it has been said that no general

rule can

be laid down, and that in every case the object of the 1itatute must be looked at." "The question as to whether a

statute

is mandatory or directory depends upon the intent of the

legislature and not upon the language

in which the intent is

cloth­

ed. The meaning and intention of the legislature must govern,

and these are to be ascertained, not only from the phraseology of

the provision, but

also by considering its nature, its design, :md

the consequences which would follow from construing it the one

way or the other."(

3

) These principles would clearly negative the

construction for which Mr. Seervai contends. It is hardly neces­

sary to refer to other provisions of the Constitution which are in­

tended to safeguard the independence of the Judicature in this

country. The existence of a

fearless and independent judiciary

can be said to be the very basic foundation of the constitutional

structure in India, and

so, it would

be idle, we think, to contend

that the absolute prohibition prescribed by Art.

211 should be read as merely directory and should be allowed to be reduced to a

meaningless declaration by permitting the House to take action

against a Judge in respect of

his conduct in the discharge of his

(I) [1958] S.C.R. 533. (2) L.R. [1917] A.C.

170.

(l) People v. De Renna (2 N.Y.S.) (2) 694, 1.66 Misc. (582) cited in Crawford,

Statutory Construction p. 516. ~ .. -

460 SUPREME COURT REPORTS [1965] I S.C.R.

di:ries. Therefore, we are satisfied that Mr. Setalvad is right when

he contends that whatever may be the extent of the powers and

privileges conferred O!J the House by the latter part of An. 194(3),

the power to take action against a J udgc for contempt alleged to

have been committed by him, by his act in the discharge of his

duties cannot be included in them. Thus, Mr. Setalvad's case is

that so far as the Judges are concerned, the position is quite clear

that as a result of the impact of the provisions contained in Articles

2~6 and 211, judicial conduct c<1n never become the subject­

matter of contempt proceedings under the latter part of Art. 194(3),

even if it is assumed that such condu1:t can become the subject­

mattel' of contempt proceedings under the powers and privileges

possessed by the House

of Commons in England.

On the other hand, Mr. Seervai disputes Mr. Setalvad's conten­

tion as

to the impact of Arts. 226 and 211 on the

btter part of

Art. 194(3) and further urges that even if Mr. Setalvad be risht

in respect of that contention, he would not be entitled to dispute

the validity of the power and privilege claimed by the House of

Commons-which can, therefore, be claimed by the House in the

present

proceedings-that no court can go behind a general or

unspeaking warrant. In order to determine the validity of these

rival contentions,

it is now necessary to consider very briefly what

was the position of this particular power and privilege at the com­

mencement

of the Constitution. In dealing with this question,

we will also very broadly refer to

the wider aspect of the powers,

privileges and immunities which vest in both the Houses of Pa,Jia­

ment in England.

While considering the question

of the powers, privileges and

immunities of the English Parliament it would, we think, be quite

safe to base ourselves on the relevant statements which have been

made in May's Parliamentary Practice. This work has assumed

the srntus of a classic on the subject and is usually regarded as an

authoritative exposition of parliamenwry practice; and so, we think

it would he an exercise in futility to attempt to deal with this ques­

tion otherwise

than hy reference to May. Parliamentary

privileg~,

according to May. is the sum of the peculi:ir rights enjoyed by

each H.ouse collectively as a constituent part of the High Court

of Parliament, and by members of each House individually, without

which they could not discharge their functions, and which exceed

those possessed by

other bodies or individuals. Thus, privilege,

though part of the law of the land, is to

n certain extent an exemp­

tion from the

ordinary law. The particular privileges of the House

of Commons have been defined as

"the sum of the fundamental

A

B

c

D

E

F

G

H

A

B

c

D

E

F

G

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SPECIAL REFERENCE (Gajendragadkar C.J.) 461

rights of the House and of its individual Members as against the

prerogatives of the Crown; the authority of the ordiuary courts of

law and the special rights of the House of Lords". There. is a

distinction··between privilege and function, though it is not always

apparent. On the whole, however, it is more convenient to reserve

the term "privilege" to certain fundamental rights of each House

which are generally accepted

as necessary for the exercise of its.

constitutional functions. The distinctive

marl< of a privilege is

its ancillary character. The privileges of Parliament are rights

·which are "absolutely necessary for the due execution of its powers".

They are enjoyed by individual Members, be1:ause the House can­

not perform its functions without unimpeded use of the services

of its Members; and by each House for the protection of its Mem­

bers and the vindication of its own authority and dignity(').

May points out that except in one respect, the surviving pri­

vileges of the House of Lords and the House of Commons are justi­

fiable on the same ground of necessity as the privileges enjoyed by

legislative assemblies of the self-governing Dominions and certain

British colonies, under the common law

as a legal incident of their

legislative authority. This exception

is the power to punish for

contempt.

Since the decision of the Privy Council in Kielley v.

Carson (

2

)

it has been held that this power is inherent

in the House

of Lords and the House of Commons, not as a body with legislative

functions, but as a descendant of the High Court of Parliament

and by virtue of the lex et consuetudo parliamenti('). Historically

as originally the weaker body, the Commons had a fiercer and more

prolonged struggle for the assertion of their own privileges, not

only against the Crown and the courts, but also against the Lords.

Thus the concept of privilege which originated in the special pro­

tection against the King began to be claimed by the Commons as

. customary rights, and some of these claims in the course of repeat­

ed efforts to assert them hardened into legally recognised "privi­

leges".

In regard to the fierce struggle by the House of Commons to

assert its privileges in a militant way, May has made the significant

comment that these claims to privilege were established in the late

fifteenth and in the sixteenth centuries and were used

by the House

of Commons against the King in the seventeenth

and-arbitrarily

-against the people in the eighteenth century. Not until the

nineteenth century

was equilibrium reached and the limits of

pri­

vilege prescribed and accepted by Parliament, the Crown and the

Courts('). The two Houses are thus of equal authority in the

-

(I) May's Parliamentary Prfll:tice pp. 42-43. (2) 4 Moore P.C. ~3.

(3) May's Parliamentary Practic~, p. 44.

462 SVPREME COURT REPORTS [1965] l S.C.R.

administration of a common body of privileges. Each House, as A

a constituent part of Parliament, exercised its own privileges inde­

pendently

of the other. They

are enjoyed, however, not by any

separate right peculiar

to each, but solely by virtue of the law and <:ustom of Parliament. Generally speaking, all privileges properly

so-called, appertain equally to both Houses. They are declared

and expounded by each House; and breaches of privilege are B

adjudged and censured by each; hut essentially, it is still the law

of Parliament that is thus administerec.l. lt is significant that

although either House may expound the law of Parliament, and

vindicate its own privileges,

it is agreed that no new privilege

can

c

be created. This position emerged as a result of the historic

resolution passed by the House of Lords in 1704. This resolution

declared "that neither House of Parliament have power, by any

vote

or declaration, to create to themselves new privileges, not

warranted

by the known laws and customs of Parliament."

Thia

resolution was communicated by th~ House of Lords to Commons

and assented to by them('). Thus, there can

be no doubt that D

by its resolutions, the House of Commons cannot add to the list

of its privileges and powers.

It would be relevant at this stage to mention broadly the main

privileges which are claimed by the House of Commons. Freedom

of

speech is a privilege essential to every free council or legislature,

and that

is claimed by both the

Houses a~ a basic privilege. This

privilege

was from I 541

·included by established practice in the

petition of the Commons to the King at the commencement of the

Parliament. It

is remarkable that notwithstanding the repeated

recognition of this

privil~ge, the Crown and the Commons· were not

always agreed upon its limits. This privilege received

final statu­tory recognition after the Revolution of 1688. By the 9th Article

of the Bill of Rights, it was declated "that the freedom of speech,

and debates or proceedings in Parliament, ought not to be impeach­

ed or questioned in any court or place out of Parliament'"(').

Amongst the other privileges ar~ : the right to exclude strangers,

the right to control publication of deba\es and pr(l(;cedings, the

right to exclusive cognizance of proceedings in Parliament, the

right of each House

to be the sole judge of the lawfulness of its own proceedings. and the right implied to punish its own Members

for their conduct

in Parliament(

3

).

Besides these privileges, both Houses of Parliament were

posscssec.l of the privilege of freedom from arrest or molestation,

(I)

1'1ay'.f Parliamentary Prartict, p. 47. (2) Ibid .• p. 52.

(3)

Ibid

.• pp. 52·53.

E

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SPEC!At REFERENCE (Gajendragadkar C.l.) 463

A and from being impleaded, which was claimed by .the Commons

on ground of prescription. Although this privilege was given

rO}'al and statutory recognition at an early date, ironically enough

the enforcement of the privilege was dependent

on the Lords and

King, who were not always willing to protect the Commons. In

this connection, May refers to the case of Thorpe who was the B Speaker of the House of Commons and was imprisoned in 1452,

under execution from the Court of Exchequer,

at the suit of the

Duke of York.

It is an eloquent testimony to the dominance of

the House of Lords and the weakness of the House of Commons

which was struggling to assert its freedom

and its rights that when

the House of Lords in response to the application of the Commons

C adjudged that Thorpe should remain in prison, the Commons so

easily acquiesced

in this decision that they immediately proceeded

to the election of another Speaker(

1

).

May points out that certain privileges have in course of time,

been. discontinued. Amongst them may be mentioned the free-

D dom from being impleaded. Similarly, by the Parliamentary Pri­

vilege Act,

1770 a very important limitation of the freedom from

arrest was affected. A somewhat similar position arises in respect

of the privilege of exemption from jury

service("). In fact the

list of privileges claimed by the 'House of Commons in early days

was a long and formidable list and it showed how the House of

E Commons was then inclined to claim all kinds of privileges for

itllclf and its members. In course of time, however, many of these

privileges fell into disuse and faded out of existence, some were

controlled by legislation while the major privileges which

can be

properly described

as privileges essential for the efficient function-

F ing of the House, still continued in force.

In considering the nature of the5e privileges generally, and

particularly the nature of the privilege claimed by the House to

punish for contempt, it is necessary to remember the historical

origin of this doctrine of privileges.

In this connection, May has

emphasised that the origin of the modern

Parliament consisted in

G its judicial functions. "One of the principal lines of recent

research", says May, "has revealed ~he importance of the judicial

elements

in the origins of Parliament. Maitland, in his

introduc­

tion to the Parliament Roll of 1305, was the first to emphasise the

importance

ot the fact that

Parliament at that time was the King's

"great court" and was thereby (among other things) the highest

H court of royal justice. There

is now general agreement in

recog­

nising the strongly judicial streak in the character of the earliest

(1) May's Parlia1nelitary Practice, p. 70. (2) Ibid. pp., 75-77.

464 SUPREME COURT REPORTS (1965] I S.C.R.

Parliaments and the fact that, even under Edward III, although

Parliaments devoted a considerable part of their time to political

and economic business, the dispensation

of justice remained one

of their chief functions

in the

eyes of the King's subjects"('). As is

well-known, the Parliament of the United Kingdom is composed

of the Sovereign, the House of Lords, and the House of Commons.

These several powers collectively form the Legislature; and, as

distinct members

of the constitution.

!hey c\erc1se functions and

enjoy privileges peculiar to each.

The House of Lords, Spiritual and Temporal, sit together, and

jointly constitute the House of Lords('). The exact date of the

admission of the Commons to a distinct place in the legislature has

a:ways been a subject of controversy; but as it is admitted that

they often sat apart for deliberation, particular instances in which

they met

in different places will not determine whether their

sepa­

ration, at those times, was tempornry or permanent. When the

Commons deliberated apart, they sat in the chapter house

or the

refectory of the abbot of Westminster; and they continued thc;r

sittings

in that place after their

final separation('). The House of

Lords always was and continues to he today a Court of Judicature.

According to May, the most distinguishing. characteristic

of

the

Lords is their judicature, of which they exercise several kinds.

They have the power to sit

as a court during prorogation and

dis­

solution; a Court of Appeal is constituted by the House of Lords

and final appellate jurisdiction vests

in them('). May has also

referred to the power claimed by the

Parliament in respect of acts

of attainder and impeachments. and he has described how this

privilege was exercised by the House of Lords and the House of

Commons('). "In impeachments". s:iys May, "the Commons arc

but accusers and advocates; while the Lords alone arc judges of the

crime. On the other hand. in passing bills 0f attainder, the

Commons commit themselves by no · accusatiCln, nor are llieir­

powers directed against the offender; but they are iudges of equal

jurisdiction, and with-the same responsibility. as ihe Lords; and

the accused can only

be condemned by the united

jud!(ment of the

Crown, the Lords, and the Commons(') .

., This

aspect of the pri­

vilege is one of the typical features of the historical development

of the constitutional law in England.

It would thus be seen that a part of the jurisdiction claimed by the House of Lords as well as

the House

of Commons can be distinctly traced to the historical

origin of the modern Parliament which. as we have just indicated,

consisted in the judicial functions

Clf Parliament.

(I) May's Parliamentary Pracrire, pp. 3-4.

(3) Ibid., p. 12.

(5) Ibid., p 40.

(2) Ibid., PP-8-9.

(4)

Ibid.,

pp. 38-39.

!6)

Ibid .. p.

41.

A

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SPECIAL REFERENCE (Gajendragadkar C.J.) 465

The differences in punishments inflicted by Lords and Commons

is also of some significance in this context. "While both Houses

agree

in regarding the same offences as breaches of

privilege",

says May, "in several important particular~ there is a difference

in their modes of punishment. The Lords have claimed to be a

court of record and,

as such, not only to imprison, but to impose

fines. They also imprison for a fixed time, and order security to

be given for good conduct; and their customary form of

commit­

ment is by attachment. The Commons, on the other hand, com­

mit for no specified period, and during the last two centuries have

not imposed

fines. There can be no question

that the House of

Lords, in its judicial capacity,

is a court of record; but, according

to Lord Kenyon, 'when exercising a legislative

capacity~ it is not a

court of record'. Whether the House of Commons be, in

Jaw,

a court of record, it would be difficult to

determin~; for this claim,

once firmly maintained, has latterly been virtually abandoned,

although never distinctly renounced"('). This last comment made

by May would be of decisive significance when

we later have

occa­

sion to deal with the question as to whether the privilege claimed

by Mr. Seervai that a general warrant cannot be examined by

courts

is a part of the privilege itself, or is the resnlt of convention

established between the courts and the House of Commons.

Let

us then briefly indicate, in the words of May, the

general

features of the power of commitment possessed by the House of

Commons. "The power of commitment", says May, "is truly

described

as the keystone of parliamentary

privilege". As was

said

in the Commons in 1593,

"This court for its dignity and

highness hath privilege,

as all other courts have. And, as it is

F above all other courts, so it hath privilege above all other courts; · and as it hath privilege and jurisdiction too, so hath it also

Coercion and Compulsion; otherwise the jurisdiction is nothing

in a court.

if it hath no Coercion"('). The comment made by

May on this power of commitment

is very instructive. The origin

of this power which is judicial in its nature

is to be found natu-

G

rally in the medieval conception of Parliament as primarily a

court of

justice-the "High Court of Parliament". As a court

functioning judicially, the House of Lords undoubtedly possessed

the power of commitment by at least as good a title

as any court

of Westminster Hall.

H But tlie Commons,

"new-comers to Parliament" within the

time of judicial memory, could not claim the power on grounds

(1) May's Parliamentary Practice, p. 90.

(2) Ibid., p, 90.

466 SUPREME COURT REPORTS [1965] l S.C.R.

of immemorial antiquity. As late as 1399 they had recorded A

their protest that they were not sharers in the judgments of Par­

liament, but only petitioners. The possession of the right by

the Commons was challenged on this ground, and was defended

by arguments which confounded legislative with judicial juris­

diction. It was probably owing to the medieval inability to

conceive of a constitutional authority otherwise than

as in

some B

sense a court of justice that the Commons succeeded in asserting

their right to commit offenders on the same ternis as the

Lords('). That is the genesis of the privilege claimed by the

House of Commons in the matter of commitment.

As the history of England shows, the House of Commons C

had to engage

in a fierce struggle in order to

am:st recognition

for this right from the King,

the House of Lords, and in many

cases the people themselves. This power was distinctly admitted

by the Lords at the conference between the two Houses,

in the

case of Ashby v. White(

2

), in

1704 and it has been repeatedly

recognized by courts of law. In fact this power

is also virtually D

admitted by the statute, I James I, c. 13, s. 3, which provides

that nothing therein shall

"extend to the diminishing of any

punishment to

be hereafter, by censure in Parliament, inflicted

upon any

person(')."

Now we will refer to the statement of the law in May's book E

on the vexed question about the jurisdiction of courts of law in

matters of privilege. May says, it would require a separate

treatise to deal adequately with a subject which raises incidentally

such important questions of constitutional law. According to

him, in cases affecting parliamentary privilege the tracing of a

boundary between the competence of the courts and the exclu-.

F

sive jurisdiction of either House

is a difficult question of consti­

tutional law which has provided many puzziing cases, particularly

from the seventeenth to the nineteenth centuries.

It has been

common ground between the Houses and the courts that

privi­

lege depends on the "known laws and customs of Parliament",

and not on the i/He dixit of either House. The question in dis­

pute was whether the law of Parliament was a "particular" law

G

or part of the common Jaw in its wide and extended sense, and

in the former case whether it was a superior Jaw which overrode

the common law. Arising out of this question another item of

controversy arose between the courts and the Parliament and

that was whether a matter of privilege should be judged solely

(!) May"s Parliam<ntary Practice, p. 91. (2) L.J. (!701.05). 714.

(:) May's Patliamen1<vy Practice, p. 92.

H

SPECIAL REFERENCE (Gajendragadkar C.l.) 467

A by the House which it concerned, even when the rights of third

parties

were involved, or whether it might in certain

cases be

decided in the courts, and, if so, in what sort of cases(

1

). The

points

of view adopted by the Parliament and the courts appeared

to be irreconcilable. The courts claimed the right to. decide

for

themselves when it became necessary to do so in proceedings

B brought before them, questions in relation to the

existep.ce or ex­

tent of these privileges, whereas both the Houses claimed to be ex­

cllisive judges of their own privileges. Ultimately, the two points of

view were reconciled in practice and a solution acceptable to both

th!l parties was gradually evolved. This solution which is marked

ou.t by the courts is to insist on their right in principle to decide

C

all questions of privilege arising in litigation· before them, with

certain large exceptions in favour of parliamentary jurisdiction.

Two of these are the exclusive jurisdiction of each House over

its own internal proceedings, and the right of either House 'to

commit and punish for contempt. May adds that while it can-

D not be claimed that either House has formally acquiesced in

this

assumption of jurisdiction by the courts, the absence of any

conflict for over a century may indicate a certain measure of tacit

acceptance(

2

). In other words, the question about the existence

and extent of privilege

is generally treated as iusticiable in

courts where it becomes relevant for adjudication of any dispute

E brought before the courts.

In regard to punishment for contempt, a similar process of

give and take by convention has been in operation and gradually

a large area of agreement has, in practice, been

evolved.

Theo­

retically, the House of Commons claims that its admitted right

F to adjudicate on breaches of privilege implies in theory the right

to determine the existence and extent of the privileges themselves.

It has never expressly abandoned this claim.

On the other hand,

the courts regard the privileges of Parliament as part of the law

'of the land, of which they are bound to take judicial notice.

They consider it their duty to decide any question of privilege

G arising directly or indirectly in a

case which falls within their

jurisdiction, and to decide it according to their own

interpreta­

tion of the law(

8

). Naturally, as a result of this dualism the

decisions of the courts are not accepte.d as binding by the House

in matters of privilege, nor the decisions of the House by the

courts; and

as May points out, on the theoretical plane, the old

H

· dualism remains unresolved. In practice, however, "there is

(1) May's Parliamentary Practice, p. lSO. (2) Ibid., p. 152.

(3) Ibid., p. 172.

468 SUPREME COURT REPORTS I I 965] I S.C.R.

much more agreement on the nature an<l principles of privilege

than the deadlock on the question of jurisdiction would lead one

to expect"' and May describes these general conclusions in the

following words :

( 1) It seems to be recognized that, for the pur­

pose of <1djudicating on questions of privilege, neither

House is by itself entitled to claim the supremacy over

the ordinary courts of justice which was enjoyed by the

undivided High

Court of Parliament. The supremacy

of Parliament, consisting of the King an<l the two

Houses,

is a

legislative supremacy which has nothing to

<lo with the privilege jurisdiction of either House acting

singly.

(2)

II is admitted by both Houses that, since

neither House can by itself

ad<l to the law. neither House can by its own declaration create a new privilege. This

implies

that privilege is objective

~nd its extent ascer­

tainable, and reinforces the doctrine that it is known

by

the courts.

On the other hanJ. the courts admit :-

( 3) That the control of each House over its inter­

nal proceedings is absolute and cannot be interfered

with by the courts.

( 4) That a commillal for contempt by either

House

is in practice within

its c~clu<ive jurisdiction,

since the facts constituting the alleged contempt need

not he stated

on the warrant of committal

(1).

It is a tribute to the remarkable English !!enius for finding

pragmatic

ad hoc solutions to problems which appear to be

irreconcilable by adopting the conventional method of give and take. The result of this process has been, in the words of May,

that the House of Commons has not for a hundred years refused

w submit its privileges to the decision of the courts, and so, it

may he said to have given practical recognition to the jurisdic­

tion of the courts over the existence and extent

of its privileges. On th~ other hand, the courts have always, at any rate in the

last resort, refused to interfere in the application by the House

of any of its rccogniztu privile~cs ('). That broadly stated, is

the position

of po\crs

and privileges claimed by the House of

Common>.

(2) Ibid., pp. 173·74.

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SPECIAL REFERENCE (Gajendragadkar C.J.) 469

A. What now remains to consider is the position in regard to the

special privilege with which we are concerned,

viz., the

privilege

to determine whether its contempt has been committed and to

punish for such contempt, and to claim that a general order or

warrant sentencing a .person for its contempt is not examinable

in a court of law. Is this last right claimed by Mr. Seervai

on B behalf of the House a part of the privilege vesting in the House

of Commons,

or is it the result of an agreement evolved between

the courts and the House by convention, or by the doctrine of

comity, or

as a matter of legal presumption ?

If is to this ques­

tion that

we must now tum.

C Even while dealing· with this narrow question, it is necessary,

we think, to refer broadly to the somewhat tortuous course

through which the law

on this question has been gradually evolv­

ed by judicial decisions

in England. Just as in dealing with the

question of privileges, on principle we have mainly based our­

selves on the statements of May,

so in dealing with the evolution

D of the law on

this question, we will mainly rely on the decisions

themselves. Both Mr. Seervai and Mr. Setalvad have referred

us to a large number of English decisions while urging their

re'spective contentions before us and in fairness, we think

we

ought

io mention some of the important representative decisions

E to indicate how

this doctrine of.privilege and its

accompaniments

has been gradually developed in England .

..

For our purpose, the story can be said to begin in the year

1677 when the Court of King's Bench had occasion to deal with

a part of this problem in

The Earl of Shaftesbury's case('); it

develops from time to time when some aspect or the other of

F this problem of parliamentary privileges came before the courts

at Westminster until we reach 1884 when the case of

Brad/augh

v.

Gossett(") was decided.

Let

us then begin with Shaftesbury's

cas~. In that case, the

Earl of Shaftesbury was committed to the Tower of London

G under

an order of the House of Lords which directed the cons­

table of the Tower of London to receive

him and keep him in

safe custody during the pleasure of the House

"for high con­

tempts committed against ·this House; and this shall be a sufficient

warrant on that behalf." The Earl of Shaftesbury took the

matter before the Court of Kings' Bench on a writ of

habeas

H corpus and urged that the committal of the Earl was unjustified

in law, because the general allegation of

"high contempts" was

(I) 86 E. R. 792. (2) L.R. 12 Q.B.D. 721.

470 SUPREME COURT REPORTS [1965] l S.C.ll.

too uncertain for the court to sustain. It was also argued on A

his behalf that in respect of the jurisdiction exercised by the

Lords the boundaries of the said jurisdiction were limited by

common law and its exercise was examinable in the courts. This

plea was unanimously rejected by the Court which held that the

Court could

not

question the judgment of the House of Lords

as a superior court. Rainford C.J. held "that this Court hath B

no jurisdiction of the cause, and therefore, the form of the return ·

is not considerable". According to the learned Chief Justice,

the impugned commitment was

in execution of the judgment

given by the Lorcls for the contempt; and therefore, if the

Earl

be bailed, he would be delivered out of execution; because for

a contempt

in facie curiae, there is no other judgment for exccu- C

tion. This case, therefore, accepted the principle

that the House

of Lords

had jurisdiction to issue a warrant for contempt and

that since

the commitment of the person thus committed was in

execution of the judgment given by the House of Lords,

the

general warrant issued in that behalf was not examinable by the D

King's Bench Division.

Five years thereafter, Jay moved the King's Bench Division

for release from arrest and brought

an action against

Tophll(ll,

the Serjeant at Arms, for. arresting and detaining him. Topham

pleaded

to the jurisdiction

of the court, but the court rejected

his plea and judgment was given in favour

of Jay. Seven years E

thereafter, the House of Commons declared that the said

judg­

ment was "illegal, a violation of the privileges of Parliament, and

pernicious to the rights of Parliament". Acting on this view

the two Judges were called at the Bar of -the House and asked

to explain their conduct. Appearing before the Bar, Sir Francis F

Pemberton mentioned to the House that he had been out of the

Court for more than six years and did not exactly remember

what had happened in the case. He expressed surprise that he

was called to the Bar without giving him enough notice as to

what was the charge against him. He also urged that if the defend-

ant should plead

he did arrest him by the command of this

House, G

and should plead that to the jurisdiction of the Court of King's

Bench,

he would satisfy the House that such a plea ought to be

overruled. That is why he asked for time to look into the

re­

cord~ of the court to make his further ple'IS. Eventually, the

two Judges were ordered·to be imprisoned('). This incident

has been severely criticised by all prominent writers on constitu-

H

tional law in England and it would be fairly accurate to state

(!) 12 State Tr. 822.

SPECIAL REFERENCE ( Gajendragadkar C.J.) 4 71

A that it has been regarded as an unfortunate and regrettable

episode in the history of the House of Commons.

It is somewhat

ironical that what happened

as long ago as 1689 is attempted

to

be done by the House in the present proceedings 14 years

after this country has been

used to a democratic way of life under

B

a written Constitution !

Before we part with this case, however, it would be material

to indicate briefly how succeeding Judges have looked at

thi~

conduct of the House of Commons. In Sir Francis Burdett v.

Abbot (1), Lord Ellen borough C.J., observed : "It is surprising

upon looking at

the record in that case how a Judge should have

C been questioned, and committed

to prison by the .House of

Com­

mons, for having given a judgment,. which no Judge whoever sat

in

this place could differ

from", and he added that the Attorney­

General who had appeared in Burdett had conceded that pro­

bably the matter was not so well understood at that time, where­

upon Lord Ellenborough observed that it was after the Revolu-

D tion, which makes such a commitment for such a cause a little

alarming; and he pointed out that it must be recollected that

Lord C.J., Pemberton stood under the disadvantage at that period

of having been on(l of the Judges who had sat on the trial of

Lord Russel, and therefore did not stand high in popularity after

E the Revolution, when the judgment and attainder in

his case had

been recently reversed

by Parliament.

F

Similarly, in Stockdale v. Hansard('), referring to this inci­

dent, Lord Denman C.J. declared :· "Our respect and gratitude

to the Convention Parliament ought not to blind us to the fact

that

this sentence of imprisonment was as unjust and tyrannical

as any of those acts of arbitrary power for which they deprived

King James of his

Crown".

The next case to which reference may be made is Ashb,v v.

White(•). In that case, the plaintiff was a burgess of Ayles­

bury, and as such entitled to vote for two Members of Parlia-

G ment.. On the day of the election he requested the defendants,

who

were the Returning Officers of the borough, to receive his

vote. This the defendants refused to do, and the plaintiff was

not allowed to vote. That led to an action against the Returning

Officers for fraudulently and maliciously refusing his vote. and

H

it

ended in an award for damages by the jury. In an action

before the Queen's Bench in arrest of judgment, it was urged that

(I) 104 E.R. 501, 541. (2) 112 E.R. 1112, 1163.

(3) (1703-04) 92 E.R. 126.

L!Sun C.l./6<-s

SUPREME COURT REPORTS (1965] l S.C.R.

the claim made by the plaintiff was not maintainable. This

action succeeded according to the majority decision Holt C.J.,

dissenting. Justice Gould held that he was of opinion tliat the

action brought against the defendants was not maintainable,

and

in support of his conclusion he gave four reasons; first, because

the defendants

are judges of

the,' and act herein as judges;

secondly, because it is a Parliamentary matter, with which we

have nothing to do; thirdly, the plaintiff's privilege

of voting is

not a matter of property or profit, so that the hindrance of it

i~

·merely dam1111m sine injuria; and fourthly, it relates to the pub­

lick, and

is a popular offence(

1

).

Holt C.J., however,

dissented from the majority opinion and

expressed his views in somewhat strong language. Referring to

the opinion expressed by his colleagues

that the Court cannot

judge of the matter because it was a Parliamentary thing, he

exclaimed :

"O ! by all m'eans be very tender of that. Besides,

it

is intricate, and there may be contrariety of opinions. But

this matter can never come

in question in Parliament; for it is

agreed that the persons for whom the plaintiff voted were elected;

so that the action

is brought for being deprived of his

vote."(")

He conceded that the court ought not to encroach or enlarge its

jurisdictiol!; but .he thought that the court must determine on a

charter granted by the King,

or on a matter of custom or

pres·

cription, when it comes before the court without encroaching on

the Parliament. His conclusion was that if it be a matter with

the jurisdiction

of the Court,

"we are bound by our oaths to

judge of it"('). This decision, however, has nothing to do with

the question

of contempt.

The

next case which deals with the question of contempt of

the House of Commons, is R. v. Paty('). In that case, Paty

and four others were committed to Newgate by warrant issued

by the Speaker

of the House. The warrant was a speaking war­

rant and showed that the persons detained had committed con­

tempt of the jurisdiction

of the House and open breach of

its

known privileges. The validity of this warrant was challenged

hy the said persons on the ground that it suffered from many

infirmities.

The majority decision in the case, however, was

that the

warrant was not reversible for the alleged infirmities and

that the court had no jurisdiction to deal with the matter. because

the House of Commons were the proper judges of their own

privileges. Justice

PO\vys referred to the earlier decision in The

(I) 92 E. R. 126, 129. (2) Ibid., 137.

(1) Ibid., 138. (4} (1704) 92 E.R. lJl.

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SPECIAL REFERENCE (Gajendragadkar C.J.) 473

Earl of Shaftesbury's case(') and observed: "lf all commit­

.ments for contempts, even those by this Court, should come to

t-e scanned, they would not hold water. Our warrants here in

such cases are short,

as for. a contempt, or for a contempt in

such a cause.

So in Chancery the commitments for contempts

are for a contempt in not fully answering, etc., and would not

this commitment be

sufficient?" He held that "the House of

Commons is a great Court, and all things done by them are to

be intended

to have been rite

acla, and the matter need not be

so specially recited in their warrants; by the same reason as we

commit people by a rule of Court of two lines, and such commit­

ments are held good, because it is to be intended, that we under­

stand what we do." (

2

)

It would thus be seen that the majority

decision in that case proceeded on the basis that the House of

Commons was a great Court

and like

. the superior courts at

Westminster, it was entitled to issue a short general warrant for

committing persons for its Contempt; If such a general warrant

was issued and it was challenged before the courts at W estmius­

ter, it should be treated with the same respect as is accorded to

similar warrants issued by the superior· courts. Holt C.J., how­

ever, was not persuaded to take the view that the impugned

imprisorunent was such "as the freeman of England ought to be

bound by"; and he added, "for that this, which was only doing

a legal act, could not be made illegal by the vote of the House

of Commons; f<>r that neither House of Parliament, nor both

Houses jointly, could dispose of the liberty or property of the

subject; for to this purpose the Queen must join : and that it

was

in the necessity of their several concurrences to such acts,

that the great security of the liberty of the subject

consisted."

( p. 236). This case, therefore, seems to recognise that it would

be inappropriate for the courts at Westminster to examine the

validity of a general warrant issued by the House

of

Common~.

That takes us to the decision in Murray's case(') 1750.

Murray was committed to prison by the House of Commons for

refusal to kneel, when brought

up to the bar of the House. It wa~ declared by the House that the refusal of Murray to kneel

was "a most dangerous contempt of privilege". When a petition

for

habeas corpus was moved before the Court, it was rejected

on the ground that

"the House of Commons was undoubtedly

a High Court and that it

was agreed on all hands that they have

power to judge of their own privileges, and it need not appear

(!)

86 E.R. 792. (2) 92 E. R. 232, 234.

(l) 9S E.R. 629.

4 74 SUPREME COURT REPORTS [ l 965] I S.C.R.

to us what the contempt was, for if it did appear, we could not

judge thereof." That is the view expressed by Justice Wright.

The learned Judge also added that the House of Commons was

superior to his own Court, and that llli; Court could not admit

to bail a person committed for a contempt in any other Court

in Westminster Hall. Dennison

J. agreed and expressed bis

opinion that the Court at Westminster Hall

was inferior to the

House of Commons with respect

to judging of their privileges and

contempts against them. This case again proceeds on the

ba~is

that the House of Commons is a superior court, and as such its

warrants cannot be examined.

A

B

The next relevant

case in point of time is Brass Crosby('). C

Brass Crosby was Lord Mayor of London and a Member of the

House of Commons, and

as Magistrate he had admitted to bail

a person

who had been committed to prison under a warrant

issued by the Speaker of the House under the orders of the House

it-;elf. The House held that Lord Mayor was guilty of breach

of privilege of the House, and

as such he was committed to

the D

Tower of London. The validity of this order was challenged by

B~ass Crosby. The challenge, however, failed on the ground

that when the House of Commons adjudges anything to be ~

contempt or a breach of privilege, their adjudication is a convic-

tion, and their commitment in consequence

is in execution. As

Lord

C.J. de Grey observed, "no court can discharge or bail a E

person that is in eKecution by the judgment of any other court,"

and so, he came to the conclusion that "the House of Commons

having authority

to commit, and that commitment being an

exe­

cution, the question is what can this Court do? He gave the

answer with the remark that "it can do nothing when a person F

is in execution, by the judgment of a court having a competent

jurisdiction;

in such case, this Court is not a court of

appeal."(')

Concurring with this view, Blackstone J. observed that the House

of Commons

is a Supreme Court and he was impressed by the

argument that

"it would occasion the utmost confusion, if every

Court of

this Hall should have power to

examine the commitments G

of the other Courts of the Hall, for contempts; so that the judg­

ment. and commitment of each respective Court,

as to contempts, must be final, and without control."(') It w&uld thus be seen

that this decision proceeded on the same ground which had by

then been recognised that the House of Commons

was a superior

court and

as such had jurisdiction to punish persons adjudged H

(I) 9S B.R. lOOS. (2J Ibid., tot 1.

(3) Ibid., 1014.

SPECIAL REFERENCE ( Gajendragadkar C.J.) 4 7 5

A by it to be guilty of contempt. A general warrant issued by the

House in respect

of such a contempt was treated as of the same

status

as a similar warrant issued by other superior courts at

Westminster Hall.

Before parting

with this case, we may incidentally advert to

B the comment made

by Lord Denman C.J. on this decision.

Said

Lord Denman : "We know now, as a matter of history, that the

House

of Commons was at that time engaged, in unison with the

Crown,

in assailing the just rights of the people. Yet that learn­

ed

Judge [Blackstone J.] proclaimed his unqualified resolution to

uphold the House of Commons, even though it should have abused

c its power(')."

The next important decision on this topic is Sir Francis Bur­

dett' s case('). This case arose out of an action of trespass which

Sir Francis Burdett commenced against the Speaker of the House

of

Commons for breaking and entering his house, and imprison-

D

ing him in the Tower. The plea raised in defence was that the

conduct of the defendant

was justified by an order of the

House

for Burdett's committal after the House had adjudicated that he

had been guilty of a contempt of the House by publishing a

libellous and scandalous paper reflecting on the just rights and

privileges of the

House. The case was elaborately argued and

E

as May

points out : "This case provides one of the principal

authorities for the Commons' power (as Lord Shaftesbury's case

does for the Lords') to commit for

contempt(')." The warrant

in this case was a speaking warrant and the contempt was the

contempt of

the House of Commons. The plea made by Burdett

was rejected, but the reasons given for rejecting the plea·

are

F significant. Lord Ellenborough C.J. has considered the question

exhaustively. He has observed that upon the authority of pre­

cedents

in Parliament, upon the recognition by statute, and upon

the continued recognition of all Judges, he should have thought

that there

was a quantity of authority enough to have put the

question

to rest, that is,

whetjier the House of Commons has the

G power of commitment for a contempt of their privileges

? The

House undoubtedly had that

power. Proceeding to deal with the

matter on that

basis, Lord Ellenborough held that the

House

was competent to decide both. as to the fact and the effect of the

publication which

was held by it to be libellous, and he

adder!

that by analogy to the judgment of a Court of law, (and the

H judgments of either House of Parliament cannot with propriety

(I) Stockdale v. Hansard, 112 E.R. 1112, 1158 (2) 104 E.R. 501.

(3~ May'.s Parliamentary Prpclice, p. 159.

06 SUPREME COt:RT REPORTS [ 1965] I S.C.R.

be put upon a footing less authoritative than those of the ordinary A

Courts of

Law),

ihe House must be considered as having decided

both, as far

as respects any question thereupon which may arise

in other Courts.

The

nc~t quostion which Lord F.llenborough considered was

if the warr«il• itself disclosed a sufikient ground for commit­

meiu, and an orde~ to the officers of ihe House to execute it,

then the justiticution for the persons acting under it is made out,

"unless any justifiable means appear to have been afterwards used

B

to carry the warrant into execution." It appears that in

that case it was ll!god before the Court that if the warrant

issued appeared to be on the face of it unjustified, illegal

or c

extravagant, the Court would be entitled to entertain tho petition

for a writ of

habeas corpus and grant relief to the petitioner.

Lord Ellenborough dealt with this argument and

expressed the

opinion that if a commitment appeared to be for a contempt of

the House of Commons generally, he would neither in the case

of that Coun, nor of any other of the Superior

Couns, inquire D

further; but if it did not profess to commit for a contempt, but

for some matter appearing on tho return, which could

by no

reasonable intendment be considered

as a contempt of the Court

committing, but a ground of commitment palpably and evidently

arbitrary, unjust, and contrary to every principle of positive

Jaw,

or national justice, in such a case the Court must look at it and

act upon it as justice may require from whatever Court it may

profess to have proceeded (pp. 558-60). It is thus clear that

even while recognising that it would be inappropriate or impro-

per to examine

a general warrant issued by the House of

Com­

mons, Lord Ellenborough made it clear that this convention

would

be subject to the exception that wherever it appeared

from

the return or otherwise that the commitment was palpably

unjust, the court would not be powerless to give relief to the

party.

[

F

This case went in appeal before the Court of Exchequer and

the decision under appeal was confirmed.

It appears that before G

the appellate decision

was pronounced, Lord Eldon proposed to

t~ir Lordships that the counsel for the defendants should not be

heard until they received the advice of the Judges on the ques­

tion which he formulated. This question was : "Whether, if the

Court of Common Pleas, having adjudged an act to be a con­

tempt of Court, had committed for the contempt under a warrant,

stating such adjudication generally without the particular circum­

stances, and the matter were brought before the C<'Urt of King's

II

A

B

SPECIAL REFERENCE (Gajendragadkar C.J.) 477

Bench, by return to a writ of habeas corpus, the return setting

forth the warrant, stating such adjudication of contempt gene­

rally; whether in that case the Court of King's Bench would dis­

charge tlie prisoner, because the particular facts and circumstancci;,

out of which the contempt arose, were not set forth in the war-

rant." After this question was handed to the Judges and they

consulted among themselves for ~ few minutes, Lord Ch. Baron

Richards delivered their unanimous opinion that in such a case

the

Court of King's Bench would not liberate. (

1

)

This opinion

was accepted and Burdett's appeal was dismissed without calling

on the respondent. In this case, Lord Erskine observed that

"the

House of Commons, whether a Court or not, must like every

C other tribunal, have the power to protect itself from obstruction

and insult, and to maintain its dignity and character.

If the

dignity of the law

is not sustained, its sun is set, never to be

lighted up again.

So much I thought it necessary to

say, feclini:

strongly for the dignity of the law; and have only to add that I

D

E

F

G

H

fully concur in the opinion delivered by the

Judges." This case

seems. to establish the position that

a warrant issued by the

Hou'e

of Commons was treated as a warrant issued by a superior Court

and

as such, the courts in Westminster Hall could not go behind

it.

In 1836-37 began a series of cases

in which John Joseph

Stockdale was concerned. This series of cases ultimately led to

the arrest and imprisonment of the Sheriffs of Middlesex.

It

appears that in one of the reports published by the inspectors of

prisons under the

order of the House of Commons Stockdale was

described in a libellous manner, and so, he brought an action

against Messrs. Hansard

in 1836. In defence, Hansard pleaded

privilege and urged that the reports in question had been pub-

-lished under the orders of the House.

The Court held that the

order

of the House supplied no defence to the action. Even so,

the verdict of the jury went against Stockdale

on a plea of justifica­

tion on the merits, the jury having apparently held that the alleged

libellous description of Stockdale was accurate.

At the time when

this case was tried,

Lord Chief Justice Denman made certain

observations which were adverse to the privileges of the House

claimed by Hansard. He observed "that the fact of the House of

Commons having directed Messrs. Hansard to publish all their

parliamentary reports is no justification for them, or for any

book-seller who publishes a parliamentary report containing a libel

against any man(,)." Incidentally, it may be added that as a

(I) 3 E.R. 1289, 1301. (2) May's Par/ian1enrary Practice, p. 159.

478 SUPREME COURT REPORTS [1965] I S.C.R.

result of this controversy, the Parliament ultimately passed the A

Parliamentary Papers Act, 1840, which overruled this view.

Not deterred by the adverse verdict of the jury on the merits,

Stockdale began another action. Before this action was com­

menced, the House of Commons had passed a resolution in 1837

reaffirming its privileges, and expressing its deliberate view that B

for any

coun to assume to decide upon matters of privilege

in­

c.onsiste'lt with the detennination of either House of Parliament

was contrary to the law of Parliament. Neverlheless, in this

second action brought

by Stockdale, the House decided to put in

a defence of privilege.

This defence was rejected and_ a decree

was passed for payment of damages and costs. Even so, the

House C

of Commons did not act upon its resolutions and refrained from

punishing Stockdale and his legal advisers for having taken the

matter to a court of law; instead, it decided that the damages and

costs be paid under the special circumstances of the case.

Encouraged ~y this result Stockdale brought a third action n

for another publication of the said report. This time Me5.~rs.

Hansard did not plead; in consequence, the judgment went against

them in default, and the damages we!"e assessed by a jury, in the

Sheriff's Coun, at £ 600. The Sheriffs of Middlesex levied for

that amount, but were served with the copies of the resolutions

passed

by the House; and that naturally made them cautious in E

the matter. They, therefore, delayed the payment of the money

to Stockdale

as long as possible, but ultimately the money

was

paid by them to Stockdale under an attachment. At this stage,

the House of Commons entered the arena and commilted Stock­

dale to the custody of the Serjeant. It called upon the Sheriffs

to !"efund the money and on their refusal, they were also com-F

mitted for contempt.

That led to proceedings taken by the Sheriffs for their release on a writ of habeas corp1Lr. These

proceedings, however, failed and that is the, effect of the decision

in the Case of the Sheriff of Middlesex(

1

).

Naturally, Mr. Seervai has laid considerable emphasis on this G

decision. He has pointedly drawn our attention to the fact that

the Court found itself powerless to protect the Sheriffs of Middle-

sex' against their imprisonment, though the conduct which gave

ri'e to contempt of the House was, in terms, the result of an

order passed by the Coun. Lord Denman CJ., who had himself

elaborately discussed the question and disputed the validity of H

the

claim made by the House of Commons in regard to

it~ privi-

(1) 113 B.R. 4t9,

l" .

SPECIAi. REFERENCE (Gajendragadkar C.l.) 479·

A leges in the case of Stockdale v. ~ansard (

1

), was a party t<>

this decision. He began his judgment by declaring that his ear­

lier judgment delivered

in the

~ase of Stockdale v. Hansard(')

was correct in all respects. . Even so, the plea raised by the

Sheriffs had to be answered against them, because their commit­

ment

was sustained by a legal warrant. Lord Denman

then

B examined the three grounds on which the validity of the warrant

was impeached and he found that there was no substance in those·

pleas. The learned Chief Justice. considered the previous deci­

sions bearing on the point and observed that the

test prescribed'

by Lord Eldon in the case of

Burdett v. Abbot(') was relevant;

and

this test, as we have already

seen, proceeds on the assump-

C tion that like the general warrants for commitment issued

by the

superior courts, the general warrants issued by

.the House of

Commons on the ground of contempt should not be examined in

proceedings for

habeas corpus. Littled.ale J. concurring

with

Lord Denman C.J. said : "if the warrant declares the grounds of

D adjudication,

this Court, in many cases, will examine into their

validity; but,

if it does not,

we. cannot go into such an inquiry.

Here

we must suppose that the House adjudicated with sufficient

reason; and they were the

propef judges". Justice Williams, who

also concurred with Lord Denman, thought it necessary to add

that "if the return, in a case like this, shewed a frivolous cause

E of commitment,

as for wearing a particular dress, I should agree

in

the. opinion expressed by Lord Ellenborough in Burdett v.

Abbot('), where he distinguishes between a commitment stating

a contempt generally, and one appearing by the return to be made

on grounds palpably unjust and absurd. Coleridge J. preferred

to

put his conclusion on the ground that "[the right of the House·

F of Commons] to adjudicate in this general form in cases of con­

tempt is not founded on privilege, but rests upon the same grounds

on

which this Court or the Court of

Coµunon Pleas might commit

for a contempt without stating a cause in the commitment." It

is remarkable that Justice Coleridge thought it necessary to make

G it' clear that the right to require a general warrant to be respected

when its validity is challenged in Jvibeas corpus proceedings, is

now a part of the privilege itself; it is the result of a convention

by

which such warrants issued by superior courts of record are us'!ally respected. This decision was pronounced in 1840, and

can be said to constitute a landmark in the development of the

H law on this topic. Thus,. this decision

also does not assist

Mr. Seervai

in contending that it is a part of the privilege of the

(I) 112 E.R. 1112. (7) 104 E.R. 501.

480 SUPREME <;:OURT REpORTs____ [1965] l S.C.R.

House to insist that a general warrant issued_ by it must -be treated: A

as conclusive and is not examin'able in courts of ,law.

The next case is

Howard v.

Sir William Gosset('). In that

case, by a majority decision a warrant issued

by the

Speaker ·of the

House against Howard was held to be invalid as a result of certain

infiffi)ities discovered 'in •the warrant. Williams J. alone dissented.

The warrant in this case was a general warrant and Williams J. h'eld

that the technical objections raised against the validity of the

warrant could not be entertained, because a general warrant

sboUld l?e treated as· conclusive of the fact that the party against

whom the warrant had been issued had been properly adjudged

to be guilty of contempt.

Since the judgment was pronounced

in favour of the plaintiff Howard, the matter was taken in appeal,

amf the majority~decision was reversed by the Court of Exche-·

qucr. Parke B. considered the seyeral arguments urged against

the validity of the warrant and. rejected them. The general

_ground for the decision of the Court of Exchequer y;as 'expressed

in these words : "We are clearly of opinion that at least as mucll.

respect is to be shewn, and as much authority' to be attributed.

to these ma9dates of the House as to those of the highest Courts

in the country; and, if the officers of the ordinary Courts are,

bound to obey the process delivered to them. an'd are therefore

pi'otected by it, the officer of the House of Comrilons is as much

bound and equally protected.

The House of Commons is a

part of the High

Courr of

Parliament. which is without question

not me~ely a Superior but the Supreme Court in this country, aild

higher than. the ordinary courts of law(')".

C·

D

E

Thus, the result of this decision is that the House of Common<

b~ing part of the High Court of Parliamc~1t is a superiqr Court }'

and the general· W3rranls issued by it cannot he subjected to the

close scrutiny, just

as similar warrants issued by other.

sup~riCJr

courts :of record are held to be exempt from such scrutiny. ll

would be noticed that the Court of Exchequer has observed 'in

this case that the House of Commons as a part of the High Court

of Parliament, is a Supreme .Court in this country and is highe~ G

than the ordinary courts of 1,aw: and this recalls the original

judicial character of the House of Parliament in its early career

and emphasises the fact that the House of Lords which is a part

of the House of Parliament still continues to be ;the highest court

of law in England. ,,. '

The last case in this series to »'hich we ought to-refer is .. the l I

decision of the Queen's Bench Division in r3rad/augh v.

;ll 116 E.R. 139.

(~J /hid., at 17-t.

/

A

B

c

D

E

F

...

G

H

SPECIAL REFERENCE (Gajendragadkar C.J.) 481

Gossett('). This decision is not directly relevant or material

but since Mr. Seervai appeared to rely on certain statements of

law enunciated by Stephen J., we think it necessary to refer to

it very briefly.

In the case of Bradlaugh the Court was called

upon to consider whether an action could lie against the Serjeant­

at-Arms of the House of Commons for excluding a member from

the House in obedience to a resolution of the House directing him

to do so; and the answer was in the negative.

It appears that

the material resolution of the House of Commons

Wa.'I challenged

as being contrary to law, and in fact the Queen's Bench Division

proceeded to deal with the claim of Bradlaugh on the footing

that the said resolution may strictly not be in accordance with

the true effect of the relevant provision of the law; and yet it

was held that the matter in dispute related to the internal manage­

ment of the procedure of the House of Commons, and so, the

Court of Queen's Bench had no power to interfere.

It

was

pressed before the Court that the resolution was plainly opposed

to the relevant provision of the law.

In repelling the validity

of this argument,

Stephen J., observed that in relation to the rights

and resolutions concerning its internal management, the House

stood precisely in the same relation "as we the judges of this

Court stand in to the l:iws which regulate the rights of which we

a~e the guardians, and to the judgments which apply them to

particular cases; that is to say, they are bound by the most solemn

obligations which can bind men to any course of conduct what­

ever, to guide their conduct

by the law as they understand

it".

The learned Judge then proceeded to add "If they misunderstand

it, ·or (I apologize for the supposition) wilfully disregard it, they

resemble mistaken

or unjust judges; but in either case, there is

in my juagment no appeal from their decision. The law of the

land

gives no such appeal; no precedent has been or can be

produced in which any Court has ever interfered with the internal

a.'fairs of either House of Parliament, though the cases are no

doubt numerous in which the Courts have declared the limits of

their powers outside of their respective Houses". That. said the

learned Judge, was enough

to justify the conclusion which he had arrived at('). Mr. Seervai's argument wa$ that though the

resolution appeared to constitute an infringement of the Parlia­

mentary Oaths Act, the Court refused to give any relief to Brad­

laugh, and he suggested that a similar approach should be adopted

in dealing with the present dispute before us. The obvious answer to this contention is that we are not dealing with any

matter relating to the internal management of the House in the

(I) (1884) L.R. 12 Q.B.D. :71. (.C) Ibid .. 286.

482 SUPREME COURT REPORTS [1965] I S.C.R.

present proceedings. We are dealing with the power of the House

to punish citizens for contempt alleged to have been committed

by them oul,ide the fourwalls of the House, and that essentially

raises different considerations.

Having examined the relevant decisions bearing on the point,

it would,

we think, not be inaccurate to observe that the right

claimed by the House of Commons not

to have its general

war­

rants examined in habeas corpus proceedings has been ba,ed

more on the consideration that the House of Commons is in the

position of a superior court of record and has the right like other

superior courts of record to issue a general warrant for co!IlIDit­

ment of persons found guilty of contempt. Like the general

warrant issued by superior courts of record in respect of such

contempt, the general warrants issued by the House of Commons

in similar situations should be similarly treated. It

is on that

ground that the general warrants issued by the House of Commons

were treated beyond the scrutiny of the courts in

habeas corpus

proceedings. In this connection, we ought to add that even

while recognising the validity of such general warrants, Judges

have frequently observed that if they were satisfied upon the

return that such general warrants were issued for frivolous

or

extravagant reasons, it would be open to them to examine their

validity.

Realizing that the position disclosed by the decisions so far

examined by us was not very favourable to the claim made by

him that the conclusive character of the general

warrants is a

part of the privilege it,elf, Mr. Soervai has very strongly relied

on the decisions of the Privy Council which seem to support his

contention, and so, it is now necessary to tum to these decisions.

The first decision

in this series is in the case of the Speaker of

the

Lef(islative Assembly of Victoria v. Hugh Glass('). In that case

by the Constitution Act for the Colony of Victoria power had

been given to the Legislative Assembly of Victoria to commit by

A

B

c

D

E

F

a general warrant for contempt and breach of privilege of that

Assembly. In exercise of that power, Glass

was declared by the G

House to have committed contempt and under the Speaker's

war­

rant, which was in general terms, he was committed to jail. A

habeas corpus petition was then moved on his behalf and this

petition

was allowed by the Chief

fustice of the Supreme Court

in the Colony, on the ground that the Constitution Statute and

the Colonial Act did not confer upon the Legislative Assembly H

the same powen;, privileges and immunities as were possessed by

(I) [1869-7113 L.R.P.C. ~.

SPECIAL REFERENCE ( Gajendragadkar C.J.) 4 83

A the House of Commons. On appeal by the Speaker of the

Assembly, the decision of the Supreme Court in the Colony was

reversed and it was held that the relevant Statute and the Act

gave to the Legislative

Assembly the same powers and privileges

as the House

of Commons had at the time of the passing of the

B

said Acts.

Having held that the Legislative Assembly had the same

po:wers as the House of Commons, the Privy Council proceeded

to . consider the nature

and· extent of these powers. Lord Cairns

who delivered the judgment of the Privy Council observed that

"[b ]eyond all doubt, one of the privileges-and one of the most

c important privileges of the House of Commo11s-is the privilege

of committing for contempt; and incidental to that privilege, it has

.... been well-established in this country that the House of Com­

mons have the right to be the judges themselves of what is con­

tempt, and to commit for that contempt by a Warrant, stating

that the commitment

is for contempt of the House generally,

D without

spesifying what the character of the contempt is." Then

he considered the merits of the argument that the relevant Cons­

titution Act did not confer on the Legislative Assembly of Victoria

the incidental power of issuing a· general warrant, anci rejected it.

"[Their Lordships] consider'', said Lord Cairns, "that there ·is an

essential difference between a privilege of committing for con-

E tempt such

as would

Se enjoyed by an inferior Court, namely,

privilege of

first determining for itself what is

contempt, then of

stating the character

of the contempt upon a Warrant, and then

of having that Warrant subjected

to review by some superior

Tribunal, and running the chance whether that superior Tribunal

will agree or disagree with the determination of the inferior Court,

F and the privilege

of a body which determines for itself, without

review, what is contempt, and acting upon the determination,

commits for that contempt, without specifying upon the Warrant

the character or the nature of the contempt." According to Lord

Cairns,

the latter of the two privileges is a higher and more

important one than the former, and

he added that it would be

G strange indeed

if, under a power to transfer the whole of the

privileges and powers of the House of Commons, that which

would only be a part, and a comparatively insignificant part, of

this privilege and power were transfe.rred(

1

).

In other words,

thfa decisi0n shows that the Privy Council

H took the

view that the

power to issue a general warrant and to

insist upon the conclusive character of the said warrant it itself

(!) (1869-71) 3 L.R.P.C. S12, S13.

484 SUPREME COURT REPORTS [1965] I S.C.R.

a part of the power and privilege of the House. Even w, it is

significant that the distinction

is drawn between the power and

privilege of

an inferior Court and the· power and privilege of a

superior .Court; and so, the conferment of the larger power is

deemed to have been intended· by the relevant provision of the

Constitution Act, because the status intended to be conferred

on

the

·Legislative Assembly of Victoria was that of the superior

Court.

In other. words, the Legislative Assembly was treated. as

a

suj>erior Court and the power and privilege conferred on it

was deemed to-iiiclude both aspects of the power. Incidentally,

it may be pointed out, with respect, that in considering the ques­

tion, Uird Cairns did not apparently think it necessary to refer

to the earlier English decisions in which the question about the

extent of this power and its nature had been elaborately considered

from

time to time.

The

next Privy Council decision on which Mr. Seervai relied

A

B

c

is Fielding and Others v. Thomas(1). In that case, the question

about !]le extent of the power conferred on the -· Nova Scotia

House of Assembly fell to be considered, and

it was held by the Privy Council that the said Assembly had statutory power to

adjudicate that wilful disobedience to its order to attend in refe­

rence to a libel reflecting on its members

is a breach of privilege

and contempt, and to punish that .breach by imprisonment.

For

our present purpose, it is not necessary to refer to

!he relevant

provisions of the statute

on which the argument proceeded, or the

facts which gave rise

"to the action. It is only_ one observation

mad_e by Lord Halsbliry which must be quoted. Said Lord Hals­

bury in that case : "The authorities su=ed up in Burdett v.

Abbot('), and followed in the Case of The Sherif] of Middle-F

sex(

3

), establish beyond all possibility of controversy the right of

D

E.

the House of Co=ons of the

United 'Kingdom to protect itself

-against insult and violence by its 'own process without appealing

to the ordinary courtS of law and without having its process inter-·

fered with by those courts."(') It is the last part of this observa­

tion which lends some support to Mr. Seervai's case. · All that we

-need say aoout this observation is that it purports to be based on

two earlier decisions which we have already examined, and that

it is not easily reconcilable with the reservations made by some of

the Judges who had occasion to deal with this point in regard to

their jurisdiction

to examine the validity of the imprisonment of

3

petitioner where it appeared that the warrant issued by the House

(1) (1896] L.R.A.C. 600.

(3) 113 E.R .419.

(2) 104 E.R. 501.

(4) [1896] L.R.A.C: 600, 6C9.

G

H

• I

. '

•

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. SPECIAL REFERENCE (Gajendragadkar C.J.) 485'

A of Commons appeared on a return made by the House to be·

palpably frivolous or based on extravagant or fantastic reasons.

The last decision on which Mr. Seervai relies is the case of

The Queen v. Richards('). In that case, the High Court of

Australia was called upon to construe the provisioris of s. 49·

Il which are similar to the provisions of Art. 194 ( 3) of our Consti-

tution. Section

49 reads thus :-

-

c

D

"The powers, privileges, and immunities of the

Senate and of the House of Representatives, and

of the

members and the committees of each House, shall

be

such as are declared by the Parliament, and until dec­

lared shall be

those of the Commons House of Parlia­

ment

of the

United Kingdom, and of hs members and

committees,

at the establishment of the Commonwealth."

One of the points which fell to be considered was what Wll3 thee

nature and extent of the powers, privileges and immunities con·

ferred by s. 49 of the Constitution on the Senate and the House

of Representatives

in Australia ? It appears that in that case.

Fitzpatrick

and Browne were taken into custody by Edward

.

Richards in pursuance of warrants issued by the Speaker of the .

House of Representatives of the Parliament of the Common··

wealth. These warrants were general ill character and they com-

E manded Richards to receive the said two persons into his custody.

F

On June 10, 1955, on the application of Fitzpatrick and Browne

as p:-osecutors, the Supreme Court of the Australian Capital Terri­

tory (Simpson

J.) granted an order nisi for two writs of habeas

corpus

directed to the said Edward Richards.

On June 15, 1955,.

Simpson

J. acting under s. 13 of the Australian Capital Territory

·

Supreme Court Act directed that the case be argued before a

Ful! Court of the High Court of Australia. That is how the

matter went before the said High Court.

· The High Court decided that s. 49 operated independently

of s. 50 and was not to be read down by implications derived·

G from the generai structure of the Constitution and the separation

of -powers thereunder. Construing s.

49 independently of s. 50,

-

the High Court held that the powers, privileges and immunities·

of the House of Commons at the establishment of the Common­

wealth ·were conferred on the Parliament and since Parliament

had made

no declaration within the meaning of the said section,

H

it was necessary to consider what the powers of the House of

Commons were at the relevant time in order to determine

the·

(I) 92 C.L.R. 157.

486 SUPREME COURT REPORTS [1965] I S.C.R.

question as to whether a general warrant could be i,!;sued by A

Parliamerlt or not, and the High Court held that under s. 49 the

Australian Parliament could claim the privilege of judging what

is contempt and of committing therefor.

It was also held that if

the Speaker's warrant is upon its face consistent with the breach

of an acknowledged privilege, it

is conclusive notwithstanding that B

the breach of privilege is stated in general terms. In

ofber words,

this decision undoubtedly supports Mr. Seervai's contention that

a general warrant issued by the House in the present case is not

examinable by the High Court.

In appreciating the effect of this decision it is necessary to

point out that so far as Australia was concerned, the point

in C

issue had been already established authoritatively by the decisions

of the

Privy Council in Dill v. Murphy(') as well as in Huglz

Glass('). In fact, fact, Dixon C.J. }jas expressly referred to this

aspect of the matter. Naturally, he has relied on the observations

made by Lord Cairns in

Hugh Glass and has followed the said

observations in deciding the point raised before the High Court D

of Australia. That is

the basis which was adopted by Dixon

C.J. in dealing with the question. Having adopted this approach,

the learned Chief Justice thought it unnecessary to discuss

at

length

the situation in E'lgland, because what the situation in England

was,

had been conclusivdy determined for the guidance of the E

Australian courts by the observations made by Lord Cairns in

Hugh Glass('). Even so, he has observed that the question

about the powers,

privilege.> and immunities of the House of Com­

mons is one which the courts of law in England have treated as

a matter for their decision, though he has added that "the courts

in England arrived at that position after a long course of judicial F

decision not unaccompanied by political controversy.

The law

in England was finally settled about

1840." This observation

obviously refers to the Case of the Sheriff o.f Middlesex('). To

quote the words of the learned Chief Justice : "Stated shortly, it

is this : it

is for the courts to judge of the existence in either House

of

Parliament of a privilege, but, given an undoubted privilege, G

it is fpr the House to judge of the occasion and of the manner

of its exercise. The judgment of the House is expressed by its

resolution and by

the warrant of the

Speaker. If the warrant

specifies the ground of the commitment the court may, it would

seem, determine whether it is sufficient in law as a ground to

amount to a breach of privilege, but if the warrant is upon its H

(I) U B.R. 784: (1864) I Moo. P.C. (N.S.) 487. (2) [1869-71] 3 L.R. P.C. SliO.

(3) 113 E.R. 419.

. '

SPECIAL RBFBRBNCB (Ga;endragadkar C.J.) 487

A face consistent with a breach of an acknowledged privilege it is

conclusive and it is no objection that the breach of privilege is

stated in general terms. This statement of law appears to be in

accordance with cases by which it was finally established, namely,

the Cqse of the Sheriff of Middlesex" (

1

). Thus, even according to

Chief Justice Dixon, the existence and extent of privilege is a

B justiciable matter and can be adjudicated upon by the · High

Court If the warrant is a speaking warrant, the Court can

determine whether it

is sufficient in

law as a ground to amount

to breach

of privilege, though, if the warrant is unspeaking or general, the court cannot go behind it. In our opinion, it would

not be reasonable to treat this decision as supporting the claim

C made by the House that the conclusive character

of its general

warrant

is a part and parcel of its privilege. The learned Chief

Justice in fact did not consider the question on the merits for

himself. He felt that he

was bound by the observations made

by Lord Cairns and

he has merely purported to state what in his

D opinion

is the effect of the decision in the Case of the Sheriff of

Middlesex(').

Besides, there is .another aspect of this matter which cannot

be ignored. The learned C.J. Dixon

was dealing with the cons­

truction of

s. 49 of the Australian Constitution, and as Gwyer

C.J. has observed in

In re The Central Provinces and Berar Act

E No. XIV of 1938('),

"there are few subjects on which the deci­

sions of other Courts require to be treated with greater caution

than that of federal and provincial powers, for

in the

last analysis

the decision must depend upon ·the words of the Constitution

which the Court

is interpreting; and since no two Constitutions

are in

identical terms, it is extremely unsafe to assume that a

F decision on one of them can be applied without qualification

to another." The learned Chief Justice has significantly added that

this may be

so even where the words or expressions used are the

same

in both cases for a word or a phrase may take a colour

from

its context and bear different senses accordingly (p. 38).

G These observations are particularly relevant and appropriate

in the context of the point which

we are discussing. Though the

words used

in s. 49 of the Australian Constitution are substan­

tially similar to the words used in Art. 194(3), there are obvious

points on which the relevant provisions of our Constitution differ

-'' from those of the Australian Constitution. Take, for instance,

H

Art. 32 of our Constitution. As we have

already noticed, Art. 32

confers on the citizens of India the fundamental right to move

(I) 113 E.R. 419. (2) [1939] F.C.R. 18.

LISup.C.I./6S-6

SUPREME COURT REPORTS

'.1965) l S.C.R

this Court. Jn other words, the right to move this Court :,"

br~ach of their fundamental rights is itself a fundamental righ1.

The impact of this provision as well as of the provisions contained

in Art.

226 on the construction of the latter part of Article 194 (3)

has already been examined by us, it may be that there are some

provisions in the Australian Constitution which may take in some

of the rights which are safeguarded under Art. 226 of our Cons­

titution. Art.

32 finds no counter-part in the Australian Consti­

tution. Likewise, there

is no provision in the Australi~n Consti­

tution corresponding to Art. 211 of ours : and the presence

of

these

distinctive features conlribules 10 make a suhstantial differ­

ence in the meaning and denotation

of similar words used in

the

two respective provisions. viz .• s. 49 of the Australian Constitution

and Art.

194(3) of ours. Besides, the declaration to which s.

4~

refers may not necessarily suffer to the same extent from the

limitation which would govern a law when it

is made by the Tndian Legislatures under the first part of Art. 194(3). These

distinctive features

of the relevant

and material provisions of our

Constitution would make it necessary to bear in mind the words

of caution and warning which Gwyer C.J .. uttered as early as

1938. Therefore, we think that it would not be safe or reason­

able to relv too much

on the observations made bv

Dirnn C.J.

in d"aling. with the · question of privileges in the case of

Richards(').

Before we part with this topic. however. we may incidentally

point out that the recent ohservations made by Lord Parker C.J.

in In re Hunt(

1

) indicate that even in regard to a commitment

for contempt by the superior court of record. the court e~ercising

its jurisdiction over a petition filed for habeas corpus would be

competent to consider the legality of the said contempt notwith­

standing the fact that

the warrant of commitment is

f!cneral or

unspeaking. Dealing with the arguments urged by Kenneth

Douglas Hunt who had been committed for contempt by Wynn­

Parry J .. Parker C.J. ol>servcd : "!1 may be that the true view

is. and I think the ca,es suprort it. that though this Court always

has power to inquire into the legality of the committal. it will

not inquire whether the power has been properly exercised." He,

however, added that in the case before him.

he was quite satisfied

that the application ought to fail

on the merits. These observa­

tions tend to show that in exercising habea.• corpu.• jurisdiction,

a court at Westminster has jurisdiction to inquire into the legality

of the commitment even though the commitment has been ordered

-· ·---·------

(I) 92 C.L.R. IS7. {l) [1959] c o. n. n. 11s.

B

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F

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SPECIAL REFERENCE (Gajendragadkar C.J.) 489

A by another superior court of record. H that be the true position,

jt cannot be assumed with certainty that Courts at Westminster

would today concede to the House of Commons the right to claim

that its general warrants are unexaminable

by them.

Even

so, let us proceed on the basis that the relevant right

B claimed

by the House of Commons is based either on the ground

that

as a part of the High Court of Parliament, the House of

Commons is a superior court of record and as such, a general

warrant for commitment issued by it for contempt ia treated u

conclusive by courts at Westminster Hall, or in course of time

the right

to claim a conclusive character for such a general war-

e rant became an incidental and integral

part of the privilege itself.

The question which immediately arises

is : can this right

be

deemed to have been conferred on the House in the present pro­

ceedings under the latter part of Ai:t. 194(3) ?

Let us first take the ba5is relatini: to the status of the House

D -Of Commons as a Superior Court of Record. Can the House

claim such a status by any legal Jlction itttroduced by Art.

194 ( 3) 7 In our opinion, the answer to this question cannot be

in the affirmative. The previous legislative history in this matter

does not support the idea that our State Legislatures were supe­

rior Courts of Record .under the Constitution Act of 1933.

E Section 28 of the said Act which dealt with the privileges of the

Federal Legislature

is relevant on this point.

S. 28 ( 1) corres­

ponds to Art. 194(3) of the present Constitution. Section 28(2)

provides that in other respects, the privileges of members of the

Chambers shall

be such as may from time to time be defined by

Act of the Federal Legislature and, until so defined, shall be such

F

as were immediately before the establishment of the Federation

enjoyed

by members of the Indian Legislature. It is not disnuted

that the members of the Indian Legislature could not have claimed

the status of being members of a superior Court of Record prior

to the Act of 1935. Section

28(3) prescribes that nothing in

any existing Indian Act.

and, notwithstanding anything in the

G foregoing provisions

of this section, nothing in this Act, shall

be construed

as conferring, or empowering the Federal Legislature

to confer, on either Chamber or on both Chambers sitting together,

or

on any committee or officer of the Legislature, the status of

a Court, or

any punitive or disciplinary powers other than a power

to remove or exclude persons infringing the rules or standing

H orders. or

ot!Jerwise behaving in a disorderly manner. Section

28 ( 4) is also relevant for our purpose. It provides that provision

may be made by an Act of the Federal Legislature for the punish-

49 0 SUPREME COURT RF.PORTS [ 1965] I S.C.R.

ment, on conviction before a Court, of persons who refuse to give A

evidence or produce documents before a committee of a Chamber

when duly required by the Chainnan of the committee so to do.

There can be no doubt that these provisions clearly indicate that

the Indian Legislature could not have claimed the power to

punish for contempt committed outside the four-walls of its Legis­

lative Chamber. Section 71 of the same Act deals with the Pro-B

vincial Legislatures and contains similar provisions in

its clauses

(2), (3) and (4).

After the Indian Independence Act, 1947

(IO & 11 Geo. VI,

c. 20) was passed, this position was altered by the amendments

made in the Government of India Act, 1935

by various amend-C

ment orders. The result of the amendment orders including Third

Amendment Order, 1948

was that sub-sections (3) and (4) of

section 28 of the said Act were deleted and sub-section

(2) was

amended. The effect of this

amendment was that the members

of the Federal Chambers of Legislature could until their privileges D

were defined

by Act of Federal Legislature claim the

privileges

enjoyed by the members of the House of Commons which were

in existence immediately before the establishment of the Federa­

tion. It is, however, remarkable that the corresponding sub­

sections ( 3) and ( 4) of section 71 were retained. The question

as to whether the result of the deletion of sub-sections ( 3) and E

(

4) and the amendment of sub-section (2) of s. 28 was to confer

on the Federal Legislature the

same status as that of the House

of Commons, does not call for our decision

in the present

Refe­

rence. Prima facie, it may conceivably appear that the conferment

of the privileges

of the members of the House of Commons on the

members

of the Federal Legislature could not necessarily make F

the Federal Legislature the House of Commons for

all purposes;

but that

is a matter which we need not discuss and decide in the

present proceedings. The position with regard to the Provincial

Legislatures at the relevant time

is, however, absolutely clear and

there would obviously be no scope for the argument !hat at the

time when the Constitution

was passed the Provincial Legislatures G

could claim the status of the House of Commons and

as such of a

superior Court of Record. That

is the constitutional background

of Art. 194 ( 3) insofar

as the

Provincial Legislatures are con­

c.erned. Considered in the light of this background, it is difllcult

to acapt the argument that the result of the provisions contained

in the latter part of Art. 194 ( 3) was intended to be to confer on H

the State Legislatures in India the status of a superior Court of

Record.

SPECIAL REFERENCE (Gajendragadkar C.J.) 491

A In this connection, it is essential to bear in mind the fact that

the status of a superior Court

of Record which was accorded to

the House of Commons, is based on historical facts to which we

have already referred. It is a fact of English history that the

Parliament

was discharging judicial functions in its early career.

It is a fact of both historical and Constitutional history in England

B that the House

of Lords still continues to be the highest Court

of

law in the country. It is a fact of constitutional history even

today that both the Houses possess powers of impeachment and

attainder.

It is obvious, we think, that these historical facts can­

not

be introduced in India by any legal fiction. Appropriate

legislative provisions do occasionally introduce legal

fictions, but

C there

is a limit to the power of law to introduce such fictions.

Law can introduce fictions as to legal rights and obligations and

as to the retrospective operation of provisions made in that behalf;

but legal fiction can hardly introduce historical

facts from one

country to another.

D

Besides, in regard to the status of the superior Court of Record

which has

been accorded to the House of Commons, there is

another part of English history which it is necessary to remember.

The House of Commons had to

fight for its existence against the

King and the House of Lords, and the Judicature was regarded by

the House of Commons as a creature of the King and the Judica-:r. ture was obviously subordinate to the House of Lords which was

the main opponent of the House of Commons. This led to fierce

struggle between the House of Commons on the one hand, and

the

King and the House of Lords on the other. There is no such hii;torical background in India and there can be no historical

justification for the basis on which the House

of Commons

F struggled to deny the jurisdiction

of the Court; that is another

aspect

of the matter which is relevant in considering the question

as to whether the House in the present case can claim the status

of a superior Court

of Record.

There

is no doubt that the House has the power to punish for

G contempt committed outside its chamber, and from that point of

view it may claim one of the rights possessed by a Court of Record.

A Court of Record, according to Jowitt's

Dictionary of English

Law, is a court whereof the acts and judicial proceedings are

enrolled for a perpetual memory and testimony,

and which

has

power to fine and imprison for contempt of its authority. The

H House, and indeed all the Legislative Assemblies in India never

discharged

any judicial

tunctions and their historical and constitu­

tional background

does not support

.1he claim that they can be

492 SUPREME COURT REPORTS ( 1965] I S.C.R.

regarded as Courts of Record in any sense. If that be so, tbe

very basis

on which the English Courts agreed

lo treat a general

warrant issued by the House of Commons on the footing that it

was a

warrant issued by a superior Court of Record, is absent in

the present case, and so, it would be unreasonable

10 contend that

the relevant power to claim a conclusive character for the general

warrant which the House of Commons, by agreement, is deemed

to possess, is vested in the House. On this view of the matter,

the claim

made by the House must be rejected.

Assuming, however,

that the right claimed by the House can

be treated as an

integral part of the privileges of the House of

Commons, the question

to consider would be whether such a right

has been conferred

on the House by the latter part of Art. 194 ( 3).

On this alternative hypothesis, it is necessary to consider whether

this part of the privilege is consistent with the material provi­

sions

of our Constitution.

We have already referred to Articles

32 and 226. Let us take Art. 32 because it emphatically bring~

out the significance of the fundamental right conferred on the

citizens

of India to move this Court if their fundamental rights are

contravened either by the Legislature

or

the Executive. Now.

Art.

32 makes no

exception in regard to any cncn,achrr.ent at

A

B

c

D

all, and it would appear illogical to contend that even if the right

claimed by the House may contravene the fundamental rights of

the citizen, the aggrieved citizen cannot successfully move this E

Court under Art. 32.

To the absolute constitutional right con­ferred on the citizens by Art. 32 no exception can be made and

no exception

is intended to

be· made by the Constitution by

reference to any power or privilege vesting in the Legislatures

of this country.

As

we have already

indicated we do not propose to enter into

a general discussion as lo the applicability of all the fundamental

rights to the cases where !cgislalivc powers and privileges can be

exercised against any individual citizen of this country, and that

we are dealing with this matler on the footing that Art. I9(1)(a)

does not apply and A rt. 21 docs. If an occasion arises, it may

become necessary to consider whether Art. 22 can be contra­

vened by the exercise of the power or privilege under Art. 194(3).

Bui. for the moment, we may consider Art. 20. If Art. 21 applies,

Art. 20 may conceivably apply, and the question may arise, if a

citizen complains that his fundarr.ental right had been contravened

either under Art. 20 or Art. 21. can he or can he not move this

Court

under Art. 32 ? For

th~ purrose of making the point

which

we are discussing, the applicability of Art. 21 itself would

F

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•

4

SPECIAL REPERENCE (Gajendragadkar C.J.) ' 493

A be enough. If a citizen moves this Court and complains that his

fundamental right under Art. 21 had been contravened, it would

plainly be .the duty of this Court to examine the merits of the

said contention, and that inevitably raises the question as

to

whether the personal liberty of the citizen has been taken away

according to the procedure established

by law. In fact, this

B

question was actually considered by this Court in the case of

Pandit Sharma(

1

). It is true that the answer was made in favour

of the legislature; but that is wholly immaterial for the purpose of

the present discussion. ·--If in a given case, the allegation made by

the citizen

is that he has been deprived of his liberty not in

accord­

ance with law, but for capricious or ma/a fide reasons, this Court

will have to examine the validity of the said contention, and it

would be no answer in such a case

to say that the warrant issued

against the citizen

is a general warrant and a general warrant must

stop all further judicial inquiry and scrutiny. .

In our opinion,

therefore, the impact of the fundamental constitutional right

con­

ferred on Indian citizens by Art. 32 on the construction of the

latter part of

Art. 194(3) is decisively against the view that a

c

D

power or privilege can be claimed by the House though it. may be

inconsistent

with Art. 21. In this connection, it may be relevant

to recall that the rules which the House has

to

make for regulating

its procedure and the conduct of its business have to

be subject

E

·to the provisions of the Constitution under Art. 208 (1).

Then, take the case of Art. 211 and see what its impact would

be on the claim of the House with which we are dealing. If the

... claim of the House is upheld, it means _that the House can issue a

general warrant against a Judge. and no judicial scrutiny can

be • held in respect of the validity of such a warrant. It would indeed ·

F be strange that the Judicature should be authorised to consider

the validity of the legislative acts of our Legislatures, but should

be prevented from scrutinising the validity of_ the action of the

legislatures trespassing on the fundamental rights conferred on

the citizens.

If the theory that the general warrant should be_

treated as conclusive is accepted, then,

as we have already indi­

cated, the basic concept of judicial independence would be ex­

posed to very grave jeopardy; and so the impact of Art. 211 on. -

the interpretation of· Art. 194(3) in respect . of this particular

'power is again decisively against the contention raised

by the

House.

If the power of the High Courts

tinder Art. 226 and the autho­

rity of this Court under Art. 32 are not subject to any exceptions,

then

it would be futile to contend that a citizen cannot move

the

(I) [1959] Supp. I S.C.R. 806.

-----·---·----------- ---------·-

--- ----------------------------. -

--------=-=-:::::-==.::--=;:..:=___

------··--

-=~~-~~-----.-::.._=--~--__ -_~.;.:-,--:' ---:-.-::::o::;::_-:0:::::----=o::----====-=-:~--

----

-=-::;-_:;:_-:-_-__ =----

--------- ---------:_-c_-_--=------=-=-~-=-====--~-

--:----:---:--=-----_--:-----::---:-_

494 SUPREME COURT REPORTS [1965) I S.C.R.

High Courts or this Court to invoke their jurisdiction even in A

cases where his fundamental rights have been violated. The exis­

tence of judicial power in that behalf must necessarily and inevi­

tably postulate the existence of a right in the citizen to move the

Court in that behalf; otherwise the power conferred on the High

Courts and this Court would be rendered virtually meaningless.

Let it not be forgotten that the judicial power conferred

on the B

High

Courts and this Court is meant for the protection of the

citizens' fundamental rights, and so,

in the existence of the said

judicial power itself

is necessarily involved the right of the citizen

to appeal to the

s:lld power in a proper case.

In

In re Parliamentary Privilege Act,

1770(

1

), the Privy

Council wa~ asked to consider whether the House of Commons

would

be acting contrary to the Parliamentary Privilege Act,

1770,

if it treated the issue of a writ against a Member of Parliament

J in respect of a speech or proceeding by him in Parliament as a

breach of

its privileges. The said question had given rise to some

doubt. and so,

it was referred to the

Privy Co11ncil for it~ opinion.

The opinion expressed by the Privy Council was in favour of

Parliament. Confining its answer to the said limited question,

the Privy Council took the precaution of adding that "they express

c

D

no opinion whether the proceedings referred to in the introductory

paragraph

were 'a proceeding in

Parliament', a question not dis­

cus.~ed before them, nor on the question whether the mere issue E

of a writ would in any circumstances be a breach of privilege."

"In taking this course", said Viscount Simonds who spoke for the

Privy Council, "they have been mindful of the inalienable right of

Her Majesty's subjects to have recourse to her courts of law for

the remedy of their wrongs and would not prejudice the hearing

of any cause

in which a plaintiff sought

relief." The inalienable ll

right to which Viscount Simonds referred is implicit in the provi­

sions of Art. 226 and Art. 32, and its existence is clearly incon-

.J sistcnt with the right claimed by the House that a general warrant

should

be treated as conclusive in

all courts of law; it would also

be equally inconsistent with the

claim made by the House that

Keshav

Singh has committed contempt by moving the High Court

under Art. 226. G

In this connection, it would be interesting to refer to a

resolu­

tion passed by the House of Lords in 1704. By this resolution,

it was declared that deterring electors from prosecuting actions in

the ordinary courts of law, where they arc deprived of their right

of voting, and terrifying attorneys, solicitors, counsellors, and H

serjeants-at-1aw, from soliciting, prosecuting and pleading

in such

cases, bv voting their so doing to he a breach of privilege of the

(il [t9S8] A.c: 331.---- -

SPECIAL RBFBRBNCB (Gajendragadkar C.J.) 495

A House of Comnfons, is a manifest assuming of power to control

the law, to hinder the course of justice, and subject the property

of Englishmen to the arbitrary votes of the House of Commons.

This was in answer to the resolution passed by the House of

Commons in the same year indicating that the House would

treat the conduct of any person in moving the court for appro-

B priate reliefs in matters mentioned by the resolution of the House

as amounting to its contempt. These resolutions and counter­

resolutions merely illustrate

the fierce struggle which was going

on between the House of Commons and the House of Lords

during those turbulent days; but the interesting part of this dis­

pute

is that if a question had gone to the House of Lords in regard

C to the competence

of

the, House of Commons to punish a man

for invoking the jurisdiction of the ordinary courts of law, the

House of Lords would undoubtedly have rejected such a claim,

and that

was the basic apprehension of the House of Commons

which

was responsible for its refusal to recognise the

jurisdicti<>n

D of the courts which in the last analysis were subordinate to the

House of Lords.

Section 30 of the Advocates Act, 1961 (25 of 1961) confers

on all Advocates the statutory right to practise

in all courts includ­

ing the Supreme Court, before any tribunal

or person

legally

authorised to take evidence, and before any other authority or

E person before whom such adv61:ate is by or under any law for the

time being in force entitled to practise. Section 14 of the Bar,

Councils Act recognises a similar right. H a citizen has the right

to move the High Court or the Supreme Court against the invasion

of his fundamental rights, the statutory right of the advocate to

assist the citizen steps in and helps the enforcement of the funda-

F mental rights of the citizen.

It is hardly necessary to emphasise

that

in the enforcement of fundamental rights guaranteed to the

citizens the legal profession plays a very important and vital role,

and

so, just as the right of the Judicature to deal with matters

brought before them under Art. 226

or Art. 32 cannot be

sub­

jected to the powers and privileges of the House under Art. 194(3),

G so the rights of the citizens to move the Judicature and the rights

of the advocates to assist that process must remain uncontrolled by

.Article 194(3). That is one i11tegrated scheme for enforcing

the fundamental rights and for sustaining the rule of law

in this

country. Therefore, our conclusion

is that" the

particular right

which the House claims to be an integral part of its power or

H privilege

is inconsistent with the material provisions of the

Consti­

tution and cannot be deemed to have been included under the

latter part of Art. 194 (

3).

496 SUPREME COURT REPORTS [1965] l S.C.R.

In this connection, we ought to add that there is no substance

in the grievance made by Mr. Seervai that Keshav Singh acted

illegally in impleading the House to the habear corpus petition

filed by him before the Lucknow Bench. Jn our opinion, it can­

not be said that the House was improperly joined

by Keshav

Singh, because it was open to him to join the House

on the ground

that his commitment was based on the order passed by the House,

and in that sense the House was responsible for, and had control

over,

hls commitment (vide The King v. The Earl of Crewe, Ex

parte Sekgome(') and The King v. Secretary of State for Home

Affairs,

Ex parte O'brien(

2

). Besides, the fact that

J(eshav

Singh joined the House to his petition, can have no relevance or

materiality in determining the main question of the power of the

House to take action against the Judges, the Advocate, and the

party for their alleged contempt.

As we have indicated at the outset of this opinion, the crux

of the matter is the construction of the latter part of Art. 194(3),

B

c

and in the light of the assistance which we must derive from the D

other relevant and material provisions of the Constitution, it is

necessary to hold

that the particular power claimed by the House

that its general warrants must be held to

be conclusive, cannot be

deemed to be the subject-matter of the latter part of Art. 194(3).

In this connection, we may incidentally observe that it is some­

what doubtful whether the power to issue a general unspeaking

warrant claimed by the House

is consistent

with s. 554(2)(h) and

s. 555 of the Code of Criminal Procedure. It appears that in

England, general warrants are issued in respect of commitment

E

for contempt by superior courts of record, and the whole contro­

versy on this point, therefore, rested on the theory

that the right F

to issue a general warrant

which ·is recognised in respect of

superior Courts of Record must he conceded to the House of

Commons, because as a part of the High Court of Parliament

it is itself a superior

Court of Record.

Before we part with this topic, there are two general considera­

tions

to which we ought to advert. It has been urged before us G

by Mr. Seervai that the right claimed

hy the House to issue a con­

clusive general warrant in respect of contempt is an essential

right for the effective functioning of the House itself, and he has

asked us to deal with this matter from this point

of view. It is

true

that this right appears to have been recognised by courts in

England

by agreement or convention or by considerations of H

comity;

but we think it is strictly not accurate to say that every

(t)

(t910) 2 K.B. S76. (2) (1923] 2 K.B. 361.

I

A

SPECIAL REFERENCE (Gajendragadkar C.J.) 497

democratic legislature is armed with such a power. Take the

case of the American Legislatures. Article

1, section 5 of the

American

Constitution does not confer on the American Legis­

lature such a power at all.

It provides that each House shall be

the judge of the Elections, Returns and Qualifications of its own

Members, and a majority of each shall constitute a quorum to do

B business; but a smaller number may adjourn from day to

day,

and may be authorised to compel the attendance of absent Mem­

bers, in such manner, and under such penalties

as each House may

provide. Each House may determine the Rules of its proceed­

ings, punish its Members for disorderly behaviour, and, with the

c

D

concurrence of two-thirds, expel a Member. Contempt

com­

mitted outside the four-walls of the legislative chamber by a citizen

who is not a Member of the House seems to be outside the jurisdic­

tion of the American Legislature.

As Willis has observed,

punishment for contempt

is clearly a judicial function; yet in the

United States, Congress may exercise the power to punish for

contempt

as it relates. to keeping order among its

<'Wil members,

to compelling their attendance, to protecting from assaults or dis­

turbances by others (except by slander and libel) , to determining

electio11 cases and impeachment charges, and to exacting infor­

mation about other departments in aid of the legislative func­

tion('). Nobody has ever suggested that the American Congress

has not been functioning effectively because it has not been

E armed with the particular power claimed by the House before

us.

In India, there are several State Legislatures in addition to the

Houses of Parliament.· If the power 'Claimed by the House before

us is conceded, it is not difficult' to imagine that its exercise may

lead to anomalous situations.

If by virtue of the absolute free-

F dom of speech conferred

Oii the Members of the Legislatures, a

Member of one Legislature makes a speech in his legislative cham­

ber which another legislative chamber regards as amounting to

its contempt, what would be the position

? The latter legislative

chamber can issue a general warrant

~nd punish the Member

alleged to be in contempt, and a free exercise of such power may

G lead to very embarrassing situations. That

is one reason why

the Constitution-makers thought it necessary that the Legislatures

should in due course enact laws in respect of their powers,

pri­

vileges and immunities, because they knew that when such laws

are made, they would be subject to the fundamental rights and

H

would be open to examination by the courts in India. Pending

the making of such laws; powers, privileges :md immunities were

conferred by the latter part of Art. 194(3).

As we have already

(1) Willis, Constitutional Law, p. 145.

498 ,.

SUPREME COURT REPORTS (1965] l S.C.R.

emphasised, the construction of this part of the article is within A

the jurisdiction

of this Court, and in construing this part, we have

to bear in mind the other relevant and material provisions of the

Constitution. Mr. Secrvai no doubt invited our attention to the

fact that

the Committees of Privileges of the Lok Sabha and the

Council of Stales have adopted a Report on May 22, 1954 with a

view to avoid any embarrassing

or anomalous situations

resulting B

from the exercise of the legislative powers and privileges against

the members of the respective bodies, and we were told that similar

resolutions have been adopted

by almost all the Legislatures in

India. But these are matters of agreement, not matters of law,

and it

is not difficult to imagine that if the same political party is C

not in power

in all the

States, these agreements themselves may

not prove to be absolutely effective. Apart from

his aspect of the

matter, in construing the relevant clause of

Art~ 194 (3), these

agreements can play no significant part.

In the course of his arguments, Mr. Seervai laid considerable D

emphasis

on the fact that in habeas corpus proceedings, the High Court had no jurisdiction to grant interim bail. It may be con­

ceded that in England it appears to be recognised that in regard

to habeas corpus proceedings commenced against orders of com­

mitment passed by the House of Commons on the ground of

contempt, bail is not granted by courts. As a matter of course,

during the last century an.d more in such habeas corpus proceed· E

ings returns are ll)ade according to law by the House of Com­

mons, but "the general rule is that the parties who stand committed

for contempt cannot be admitted to bail." But it is difficult to

accept the argument that in India the position

is exactly the same

in this matter. If Art. 226 confers jurisdiction on the

Court to F

deal with the validity of the order of commitment even though the

commitment bas been ordered by the House, how can it be said

that the

Court bas no jurisdiction to make an interim order in

such proceedings? As bas been held by this Court )n Stale of

Orissa v. Madan Gopal Rungta, and Others('), an interim relief

can be granted only in aid of, and as ancillary to, the main relief G

which may

be available to the party on final determination of his

rights

in a suit or proceeding. Indeed, as Maxwell has observed,

when an

Act confers a jurisdiction, it impliedly also grants the

power of doing all such acts, or employing such means,

as are

essentially

necessary to its execution('). That being so, the argu­

ment based on the relevant provisions of the Criminal Procedure H

(I) 119'2) S.C.R. 28.

(l) Mox ... u on lnttrprttotlon Qf S1a1utt1, 11th ed., p. 3SO.

A

B

c

D

E

F

G

SPECIAL REFERENCE (Gajendragadkar C.J.) 49&

Code and the decision of the Privy Council in Lala Jairam DM

and Others v. King Emperor('), is of no assistance.

We ought to make it clear that we are dealing with the ques­

tion

of jurisdiction and are not concerned with the propriety or

reasonableness of the exercise of such jurisdiction.

Besides, in

the' case of a superior Court of Record, it is for the court to

consider whether

any matter falls within its jurisdiction or not. Un)ike a court of limited jurisdiction, the superior Court is entitled

to determine for itself questions about its own jurisdiction. "Prima

facie", says Halsbury, "no matter is deemed to be beyond the

jurisdiction of a superior court unless it is· expressly shown to be

so,

while nothing is within the jurisdiction of an inferior court

unless it is expressly shown on the face of the proceedings that

the particular matter

is within the cognizance of the

parti~ular

court."(

2

). We cannot, therefore, accede to the proposition that

in passing the order for interim bail, the High Court can be said

to

have exceeded its jurisdiction with the result that the order in

question is null and void. Besides, the validity of the order has

no relation whatever with the question

as to whether in passing the

order, the

Judges have committed contempt of the House.

There

is yet one more aspect of this matter to which we may

incidentally refer.

We have already noticed that in the present

case, when the

habeas corpus petition was presented before the

Lucknow Bench at 2

P.M. on March 19, 1964, both

parties

appeared by their respective Advocates and agreed that the appli­

·cation should be taken up at 3' P .M. the same day, and yet the

House which was impleaded to the writ petition and the other

respondents to it for whom Mr. Kapur had appeared at the earlier

stage, were absent at that time. That is how the Court directed

that notice on the petition should

be issued to the respondents and

released the petitioner

on

bail subject to the terms and conditions

which have already been mentioned; and it is this latter order of

bail which has led to the subsequent developments. In other

words, before taking the precipitate action of issuing warrants.

against the Judges of the Lucknow Bench, the House did not con­

form to the uniform practice which the House of Ce.mmons has

followed for more than a century past and did not instruct its

lawyer either to

file a return or to ask for time to do so, and to

request that the Court should stay

its hands until the return was

H filed. It is not disputed that whenever commitment orders pass­

ed

by the.House of Commons are challenged in England

before

(I) 72 I.A. 120. (2) Ha/sbury•• Laws ~(England, vol. 9,·p. U9.

500 SUPREME COURT REPORTS [1965] I S.C.R.

the Courts at Westminster, the House invariably makes a return A

and if the warrant issued

by it is general and unspeaking, it is so

stated in the return and the warrant

is produced. If this

cour&e

had been adopted in the present proceedings, it could have been

said that the House in exercising its powers and privileges, con­

formed to the pattern which,

by convention, the House of Com­

mons has invariably followed in England during the last

century B

and more; but that

was not done; and as soon

as the House knew

that an order granting bail had been passed, it proceeded to consi-

der whether the Judges themselves were not in contempt. On

these narrow facts, it would be possible to take the view that no

question of contempt committed

by the Judges arises. In view of C

the fact that Mr. Kapur had appeared before the Court at 2

P.M.

on behalf of all the respondents and had agreed that the matter

should be taken up at 3 P.M., it was his duty to have appeared at

3 P .M. and to have either filed a return or to have asked for time

to do so on behalf of the House.

If the House did not instruct

Mr. Kapur

to take this step and the Court had no knowledge

as D

to

why Mr. Kapur did not appear, it is hardly fair to blame the

Court for having proceeded to issue notice on the petition and

granted bail to the petitioner. In these proceedings it

is not

necessary for

us to consider what happened between Mr. Kapur

and the House and why Mr. Kapur did not appear at 3

P.M. to

represent the House and the other respondents. The failure of E

Mr. Kapur to appear before the Court at 3 P.M. has introduced

an unfortunate element in the proceedings before the Court and

is partly responsible for the order passed by the Court. One fact

is clear, and that is that at the time when the Court issued notice

and released the petitioner on bail, it had no knowledge that the

warrant under which the petitioner had been sentenced

was a F

general warrant and no suggestion

was made to the Court that

in the

case of such a warrant the Court had no authority to make

any order of bail. This fact cannot be ignored in dealing with

the case of the House that the Judges committed contempt in

releasing the petitioner on bail.

But

we ought to make it clear that we do not propose to base

our answers on this narrow view of the matter, because questions

3 and

5 are broad enough and they need answers

on a correspond­

ingly broad basis. Besides, the material questions arising from

G

this broader aspect have been fully argued before us, and it is

plain that in making the present Reference, the President desires H

that

we should render our answers to all the questions and not exclude from our consideration any relevant aspects on the ground

,

SPECIAL REFERENCE (Gajendragadkar C.J.) 501

A that these aspects would not strictly arise on the special fac~

which have happened so far in the present proceedings.

In conclusion, we ought to add that throughout our discus­

sion we have consistently attempted to make it clear that the

main point which

we are discussing is the right of the House to

B claim that a general warrant

issued by it in respect of its con­

tempt alleged to have been committed by a citizen who is not a

Member of the House outside the four-walls of the House, ill

conclusive, for it is on that claim that the House has chosen to

take the view that the Judges, the Advocate, and the party have

committed contempt

by reference to their conduct in. the

habeas

c corpus petition pending before the Lucknow Bench of the Allaha­

bad High Court. Since we have held that in the present case no

contempt was committed either by the Judges, or the Advocate,

or the party respectively, it follows that it was open to the High

Court of Allahabad, and indeed it

was its duty, to entertain the

petitions

filed before it by the two Judges and by the Advocate,

D and it was within its jurisdiction to pass the interim orders

pro­

hibiting the further execution of the impugned orders passed by

the House.

Before

we part with this topic, we would like to

refer to one

aspect of the question relating to the exercise of power to punish

J: for contempt. So far as the courts are concerned, Judges always

keep in mind the warning addressed to them by Lord Atkin in

Andre Paul v. Attorney-General of Trinidad('). Said Lord Atkin

"Justice is not a cloistered virtue; she must be allowed to suffer the

scrutiny and respectful even though out-spoken comments of ordi­

nary men." We ought never to forget that the power to punish

11 for contempt large as it is, must always be exercised cautiously,

wisely and with circumspection. Frequent

or indiscriminate use

of 'this power in

anger or irritation would not help to sustain the

dignity or status of the court, but may sometimes affect it

adversely. Wise Judges never forget that the best way to sustain

the dignity and status of their office

is to deserve respect from

G the public at large by the quality of their judgments, the

fearless­

ness, fairness and objectivity of their approach, and by the res-·

traint, dignity and decorum which they observe in their judicial

conduct. We venture to

think that what is true of the

Judica­

ture is equally true of the Legislatures.

H Having thus discussed all the relevant points argued before

w; and recorded our conclusions on them, we are now in a position

(!) A.Lil. 1936 P.C. 141.

502

-•. '

SUPREME COURT REPORTS [1965] l S.C.R.

. to render our answers to the five questions referred to us by the A

·President. Our answers are :- ·

( 1 ) On the facts and circumstances of the case,

it was competent for the Lucknow Bench

of the High

Court of Uttar Pradesh, consisting of N.

U. Beg and

9.· D. Sahgal JJ., to entertain and deal with the

petition of Keshav Singh challenging the legality of the

sentence

of imprisonment imposed upon him by the

Legislative Assembly of Uttar Pradesh for its contempt

and for infringement of its privileges and to pass orders

releasing Kesbav Singh on bail pending

·the disposal of

his said petition.

(2)

On the facts and circumstances of the cas~.

Keshav Singh by causing the petition to be presented

on_ his behalf to the High Court of Uttar Pradesh as

aforesaid, Mr. B. Solomon Advocate, by presenting the

said petition, .and the said two Hon'ble Judges by enter­

taining ·and dealing with the said {>etition and order­

, ing the release of Kesh~v Singh on bail pending disposal

of the said petition, did not commit contempt of the

Legislative Assembly of Uttar Pradesh.

(

3)

On the facts and circumstances of the case,

it was not competent for the Legislative Assembly of

Uttar Pradesh to -direct the production of the said two

Hon'ble Judges and Mr.

B. Solomon Advocate, before

it in custody

or to call for their explanation for its

contempt.

(

4)

On the facts and -circumstances of the case, .

it was competent for the Full Bench of the High _,

Court of Uttar Pradesh to _entertain ·and deal with'. the

.petitions of the said· two Hon'ble· Judges and Mr. B.

Solomon Advocate, and ·to pass interim orders restrain-

ing the Speaker of the Legislative Assembly of Uttar

Pradesh and other respondents to the said petitions from

implementing the aforesaid direction of the said Legis-

. lative Assembly; and .

(5) In rendering our

.answer to this question

which

is very broadly worded, we ought_ to preface our

answer with the observation that the answer is confined

to cases in relation to contempt alleged to have been

committed by a citizen who

is not a member of the

House outside the four-walls of the legislative chamber.

A Judge of a High Court who entertains

or deals

with···

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c

D

E

F

G

H

•

4 .•

_,,,,.. ..

I

A

B

c

SPECIAL REFERENCE (Sarkar I.)

a petition challenging any order or decision of a Legis­

lature imposing any penalty on the petitioner or issuing

any process against the petitioner for its contempt,

or for infringement of its privileges and immunities,

or

who passes any order on such petition, does not commit

contempt of the said Legislature; and the said

Legisla­

ture is not competent to take proceedings against such

a Judge in the exercise and enforcement of its powers,

privileges and immunities.

In this answer,

we have

deliberately omitted reference to infringement of privi­

leges and immunities of the House which may include

privileges and immunities other than those with which

we are concerned in the present Reference.

503

Sarkar J. This matter has come to us on a reference made by

the President under Art. 143 of the Constitution. The occasion

for the reference was a sharp conflict that arose and still exists

between the Vidhan Sabha (Legislative Assembly) of the Uttar

n Pradesh State Legislature, here·inafter referred to as the Assembly,

and the High Court of that State. That conflict arose because the

High Court had ordered the release on bail of a person whom the

Assembly had committed to prison for contempt. The Assembly

considered that the action of the Judges making the order and of

the lawyer concerned

in moving the High Court amounted to con-

E tempt and started proceedings against them on that basis, and the

High Court. thereupon, issued orders restraining the Assembly and

its officers from taking steps

in implementation of the view that

the action of the Judges and the lawyer and also the person on

whose behalf the High Court had been moved amounted to con-

f

G

H

tempt.

A very large number of parties appeared

on the reference and

this

was only natural because of the public importance of the

yucstion involved. These parties were divided into two broad

groups, one supporting the Assembly and the other, the High

Court.

I shall

now state the actual facts which gave rise to the conflict.

The Assembly had passed a resolution that a reprimand be

admi­

nistered to one Keshav Singh for having committed contempt of

the Assembly

by publishing a certain pamphlet libelling one of

its members. No question as to the legality of this resolution

arises in this case and we are concerned only with what followed.

Keshav Singh who was a resident

of Gorakhpur, in spite of being

repeatedly required to do so, failed to appear before the Assembly

whiCh held its sittings in Lucknow, to receive the reprimand

LISup.C.l./6S-7

504 SUPREME COURT REPORTS (1965) I S.C.R.

alleging inability to procure money to pay the fare for the neces-A

sary railway journey. He was thereupon brought under the cus­

tody of the Marshal of the Assembly in execution of a warrant

issued by the Speaker in that behalf and produced

at the Bar of

the House on March

14, 1964. He was asked his name by

the

S;:t;aker repeatedly but be would not answer any question at all.

He stood there with his back to the Speaker showing great dis-B

respect to the House and would not turn round to face the Speaker

though asked to do so. The reprimand· having been administered,

the Speaker brought to the notice of the Assembly a letter dated

March

11, 1964, written by Keshav Singh to him, in which he

stated that he protested against the sentence

of reprimand and had

absolutely no hesitation in calling a corrupt man corrupt, adding C

that the contents of his pamphlet

were correct and that a brutal

attack had been

made on democracy by issuing the uNadirshahl Firman" (warrant) upon him. Keshav Singh admitted having

written that letter.

The Assembly thereupon passed a resolution

that

"Keshav Singh be sentenced to imprisonment for seven days D

for having written a letter worded

in language which constitutes

contempt

of the House and his misbehaviour in view of the

House."

A general warrant was issued to the Marshal of the House and th<

Superintendent, District Jail, Lucknow which stated, "Whereas

the .... Assembly has decided .... that Shri Keshav Singh be sen­

tenced to simple imprisonment for seven days for committing the E

offence

of the contempt of the Assembly, it is accordingly ordered

that Keshav

Singh be detained in the District Jail, Lucknow for a

period of seven days." The warrant did not state the facts which

constituted

the contempt. Keshav

Singh was thereupon taken

to the Jail on the same day and kept imprisoned there. On March

19. 1964, B. Solomon. an advocate, presented a petition to a F

Rench of the High Court of Uttar Pradesh then constituted by Beg

and Sahgal JJ., which sat in Lucknow. for a writ of habeas corptH

for the release of Kcshav Singh alleging that he had beep deprived

of his personal liberty without any authority of law and tl1at this

detention was

ma/a

fide. This Bench has been referred to as the

Lucknow Bench. This petition was treated as having been made G

under Art. 226 of the Constitution and s. 49 l of the Code of

Criminal

Pwcedure. On the same date the learned Judges made

an order that Keshav Singh be released on bail and that the petition

be admitted and notice

be issued to the respondents named in it.

Keshav Singh was promptly released on bail.

This order inter­

fered with the sentence of imprisonment passed by the House by H

permitting Keshav Singh to be released before he had served the

full term

of his sentence.

On March 21, 1964, the Assembly

SPECIAL REFERENCE (Sarkar J.) 505

A. passed a resolution stating that Beg J., Sahgal J., B. Solomon and

Keshav Singh had committed contempt of the House and that

Keshav Singh be immediately taken into custody and kept con­

fined in the District Jail for the remaining term of his imprison­

ment and that Beg J., Sahgal J. and B. Solomon be brought in

custody before the House, and also that Keshav Singh be brought

B before the House after he had served the remainder of

his sentence.

c

D

E

Warrants were issued on March 23, 1964 to the Marshal of the

House and the Commissioner of Lucknow for carrying out the

terms of the resolution.

On the same day, Sahgal J. moved a

petition under Art. 226 of the Constitution in the High Court of

Uttar Pradesh at Allahabad for a writ of certiorari quashing the

resolution of the Assembly of March 21, 1964 and for other

necessary writs restraining the Speaker and the Marshal of the

Assembly and the State Government from implementing that

resolution and the execution of the orders issued pursuant to the

res0lution. The petition however did not mention that the war-

rants had been issued. That may have been because the warrants

were issued after the petition had been presented, or the issue

of

the warrant was not

knoWfi to the petitioner. This petition was

heard by all the Judges of the High Court excepting Sahgal and

Beg JJ. and they passed an order on the same day directing that

the implementation of the resolution be stayed. Similar petitions

were presented by B. Solomon and Beg J, and also by other

parties, including the A vadh Bar Association, and on some of

them similar orders,

as on the petition of

Sahgal J., appear to have

been made. On March 25, 1964, the Assembly recorded an ob­

servation that by its resolution of March 21, 1964 it was not its

intention

to decide that Beg J.,

Sahgal J., B. Solomon and Keshav

F Singh had committed contempt of the House without giving them

a hearing, but it had required their presence before the House

for

giving them an opportunity to explain their position and it resolved

that the question may be decided after giving an opportunity to the

above-named persons according to the rules to explain their con-

G

H

duct. Pursuant to this resolution, notices were issued on

March 26, 1964 to Beg

J.,

Sahgal J. and B. Solomon inform­

ing them that "they may appear before the Committee at

10 A.M. on April 6, 1964 .............. to make 'their submis-

sions". The warrants issued on March 23, 1964, which had never

been executed, were withdrawn

in view of these notices. The

present reference

was made on March 26, 1964 and thereupon

the Assembly withdrew

the notices of March 26, 1964 stating that

in view of the reference the two Judges and Solomon and Keshav

Singh need not appear before the Privilege Committee as required.

506 SUPREME COURT REPORTS [ 1965) l S.C.R.

These facts arc set out in the recitals contained in the order of

reference. There is however one dispute as to the statement of

facts in the recitals. It is there stated that the Assembly resolved

on March 21, 1964 that the two Judges, Solomon and Keshav

Singh "committed, by their actions aforesaid, contempt of the

House." The words "actions aforesaid" referred to the presenta­

tion of the petition of Keshav Singh of Marci 19, 1964 and the

order made thereon. It is pointed out on behalf of the Assembly

that the resolution does not say what constituted the contempt.

This contention

is correct.

The main question

in this reference is whether the Assembly

ha•; the privilege of committing a person to prison for contempt by

a general warrant, that is. without stating the facts which consti­

tuted the contempt, and if it doe.> so, have the courts of law the

power to examine the legality

of such a committal ? In other

words, if there

is such a privilege, does it take precedence over

the fundamental

rights of the detained citizen. It is said on behalf

of the Assembly that it has such a privilege and the interference by

the court

in the present case was without jurisdiction. The

ques­

tion is then of the privilege of the Assembly, for if it does not

possess the necess".ry privilege. it is not disputed, that what the

High Court has done in this case would for the present purposes

be unexceptionable.

First then as w the privileges of the Assembly. 'The Assembly

relies for purpose on cl. (

3) of Art. 194 of the Constitution.

The first three clauses of that article may at this siage be set out.

Arr. J 94( I) Subject to the provisions of this

Constitution

and to the rules and standing orders regu­

lating 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 ·Legis­

lature 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.

(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

A

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SPECIAL REFERENCE (Sarkar I.)

so defined, shall be those of the House of Commons of

the Parliament of the United Kingdom, and of its mem­

bers and committees, at the commencement of this

Constitution.

507

Article 105 contains identical provisions in relation to the Central

Legislature. It

is not in dispute that the

Uttar Pradesh Legisla­

ture has not made any law defining the powers, privileges and

imlilunities of its two Houses. The Assembly, therefore, claims

that it has those privileges which the House of Commons in

England had on January 25, 1950.

I would like at this stage to say a few general words about

C "powers, privileges and immunities" of the House of Commons or

its members. First I

wish to note that it is not necessary for our

pnrposes

to make a distinction between

"privileges", "powers"

and "immunities". They are no doubt different in the matter of

their respective contents but perhaps in no otherwise. Thus the

right

of the House to have absolute control of its internal proceed-

D

ings may be considered as its privilege, its right to punish one for

contempt may

be more properly described as its power, while the

right that

no member shall be liable for anything said in the

House

may be really an immunity. All these rights are however created

by one law and judged by the same standard. I shall for the sake

E

F

G

H

of convenience, describe them all as

"privileges". Next I note

that thi< case is concerned with privileges of the House of Com­

mons alone, and not with those of its members and iis committees.

1 stress however that the privileges of the latter

two are in no

respect different

from those of the former except as to their

contents.

The nature of the privileges of the House of Commons can

be best discussed by referring to May's

Parliamentary Practice,

which is an acknowledged work of authority on matters concern­

ing the English Parliament. It may help to observe here that for

a long time now there

is no dispute as to the nature of the recog-

nised privileges of the Commons.

J start to explain the nature of the privileges by pointing out

the distinction between them and the functions of the House. Thus

the financial powers of the House of Commons to initiate taxation

legislation

is often described

as its privilege. This, however, is

not the kind of privilege of the House of Commons to which

cl. ( 3) of Art. 194 refers. Privileges of the House of Commons

have a technical meaning in English Parliamentary Law

and the article

uses the word in that sense only. That technical

sense has been described in these words :

"[C]ertain fundamental

508 SUPREME COURT REPORTS [1965] I S.C.R.

rights of each House which are generally accepted as necessary for A

the exercise of

its constitutional functions." (

1

)

A point I would

like to stress now

is that it is of the essence of the nature of the

privileges that they are ancillary

to the main functions of the House

of Commons. Another thing which I wish to observe at this stage

is that

"[s]ome privileges rest solely upon the law and custom of

Parliament, while others have been defined by statute. Upon these B

grounds alone all privileges whatever are

founded"('). In this

case

we shall be concerned

wilh the former kind of privilege only.

The point to note is that this variety of privilege derives its authority

from the law and custom of Parliament. This law has been given

the name of

Lex Par/iamenti. It owes its origin to the custom of C

Parliament.

It is, therefore, different from the common law of

England which, though also based

on custom, is based on a

sepa­

rate set of custom, namely, that which prevails in the rest of the

realm. This difference in the origin had given rise

to serious

dis­

putes between Parliament and the courts of law but they have been

settled there for many years now and except a dispute as

to

theory,

0

the recurrence of any practical dispute

is not considered a

possi­

bility. So Lord Coleridge C.J. said in Bradlaugh v. Gossett(').

"Whether in all cases and under all circumstances

the Houses are the sole judges of their own privileges.

in the 'sense that a resolution of either House on the

subject has the same effect for a court of law as an

Act of Parliament,

is a question which it is not now

necessary

to

delermine. No doubt, to allow any review

of parliamentary privilege by a court of law may lead

has led, to very grave complications, and might in many

supposable cases end in the privileges of the Commons

being determined by the Lords. But, to hold the reso­

lutions of either House absolutely beyond inquiry in a

court of law may land us in conclusions not free from

grave complications too.

It is enough for me to say

that it seems

to me that in theory the question is

extre­

mely hard to solve; in practice it is not very important,

and at any rate does not now arise."

This passage should suffice to illustrate the nature of the dispute.

E

F

G

It will not be profitable at all, and indeed I think it will be

'mis­

chievous,' to enter upon a discussion of that dispute for it will only

serve to make turbid, by raking up impurities which have settled H

down, a stream which has run clear now for years. Furthermore

(1) M";,'s Par/iamtntQ/'y Prartlct, 16th ed. p. 42.

(3) (1884) L.R. 12 Q.B.D. 271. 275.

(2) Ibid, p. 44.

SPECIAL REFERENCE (Sarkar J.) 509

A that dispute can never arise in this country for here it is undoubtedly

for the courts to interpret the Constitution and, therefore,

Art.

194 ( 3). It follows that when a question arises in this country

under

th(lt article as to whether the House of Commons possessed

a particular privilege at the commencement of the Constitution,

that question must be settled, and settled only, by the courts of

Jaw.

B There is no scbpe of the dreaded

"dualism" appearing here, that is,

courts entering into a controversy with a House of a Legislature as

to what its privileges are. I think what I have said should suffice

to explain the -nature of the privileges for the purposes of the

present reference and I will now proceed to discuss tii'e·privileges of

C the Assembly that are in question in this case, using that word in

the sense of rights ancillary to the main function of the legislature.

The privilege which I take up first

is the power to commit for

contempt.

It is not disputed that the House of Commons has

this

power. All the decided cases and text-books speak of such power.

D "The power of commitment is truly described as the 'keystone of

parliamentary privilege'

....

·without it the privileges of Parlia­

ment could not have become self-subsistent, but,

if they had not

lapsed, would have survived

on sufferance."(') In Burdett v.

Abbot((') Lord Ellenborough C.J. observed,

E

"Could it be expected . . . . . . . . that the Speaker

with

his mace should be under the necessity of going

before a grand jury to prefer a. bill

of indictment for

the insult offered to the House ? They certainly must

have the power of self-vindication and seif-protection

in their own hands . . . . . .

"

F The possession of this power by the House of Commons is, there­

fore, undoubted.

It would help to appreciate the nature of the power to commit

for contempt to compare it with breach of privilege which itself

may amount to contempt. Thus the publication of the proceedings

G of the House of Commons against its ocders is a breach of its

privilege and amounts to contempt. All contempts, however, are

not breaches of privilege. Offences against the dignity or authority

of the House though called "breaches of privilege" are more proper­

ly distinguished as contempts. Committing to prison for contempts

H

is itself a privilege of the House of Commons whether the contempt is committed bJ a direct breach of its privilege or by offending its

(I) May, p. 90. (2) 104 E.R Sul. 559.

510 SUPREME COURT REPORTS (1965] l S.C.R.

dignity or authority. (') "The functions, privileges and disciplinary

powers of a legislative body are thus closely connected. The

privileges arc the necessary complement of the functions, and the

disciplinary powers of the privileges."(')

I may add that it is not

in dispute that power to commit for conteMpt may be exercised not

only against a member of the House but against an outsider as

well.(')

It was contended on behalf of the High Court that the power

of the House of Commons to commit for contempt was not

con­

f errod by cl. (3) of Art. 194 on the Houses of a State Legislature

because

our Constitution

has to be read along with its basic scheme

providing for a division of powers and the power to commit to

prison for contempt being

in essence a judicial power, can under

our Constitution be possessed only by a judicial body, namely, the

courts and not by a legislative body like the Assembly. It was,

therefore contended that Art.

194(3) could not be read as

con­

ferring judicial powers possessed by the House of Commons in

England as one of its privileges on a legislative body and so the

Assembly did not possess it.

This contention

of the High Court is, in my view, completely

without

foundation; both principle and authority arc against it.

·This Court has on earlier occasions observed that the principle of

separation of powers

is not an essential part of our Constitution : su for example In re. Delhi Laws Act('). Again the Constitution

is of course supreme and even if it was based on the principle of

separation of powers, there was nothing to prevent the Constitu­

tion-makers, if they so liked, from conferrin~ judicial powers on a

legislative body. If they did so, it could not be said that the provi­

sion concerning it was bad as our Constitution was based on a

division of powers. Such a contention would of course be absurd.

The only question, therefore,

is whether our Constitution-makers

have conferred the power to commit on the Legislatures. The

ques­

tion is not whether they had the power to do so, for there was no

limit to their powers. What the Constitution-makers had done

can, however, be ascertained only from the words used by them

in the Constitution that they made. If those words are plain,

effect must be given to them irrespective of whether our Constitu­

tion is based on a division of power or not. That talces me to the

language used

in cl. (3) of Art. 194. The words there

appearing

are "the powers, privileges and immunities of a House .... shall

·-------·-·---

(1) /11101. p. 43.

(3) /IJ"'·· p. 91

(2) lb id.

(4)"(t9St)

S.C.R. 747, 88~.

..

A

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SPECIAL REFERENCE (Sarkar J.) 511

A be those of the House of Commons". I cannot imagine more plain

language than thfs. That language can only have one meaning.

and that

is that it was intended to confer on the

State Legislatures

the powers, privileges and immunities which the House of Com­

mons in England had. There is no occasion here for astuteness in

denying words their plain meaning

by professing allegiance to a ·B supposed theory of division of powers. So much as to the principle

regarding the application of the theory of division of powers.

This question

is further completely concluded by the decision

of this Court in

Pt. M. S. M.

Sharma v. Shri Sri Krishna Sinha(').

I will have to refer to this case in some detail later. There Das C.I.,

C delivered the majority judgment of the constitution bench consist­

ing of five Judges and Subba Rao J. delivered his own dissenting

opinion. Das C.J., proceeded on the basis that the Houses of a

State Legislature had the power to commit for contempt. It was,

therefore, held that there

was nothing in our

C<;institution to prevent

D a legislative body from possessing judicial powers. On this point

Subba Rao J. expressed no dissent. Further, the Judicial Commit­

tee in England has in two cases held that under provisions, sub­

stantially similar to those of Art. 194 ( 3) of our Constitution, the

power of the House of Commons to commit for contempt had been

conferred on certain legislative bodies of some of the British Colo-

E

nies. In the

Speaker of the Legislative Assembly of Victoria v.

Glass(') it was held that a statut<5 stating. "The Legislative Council

of Victoria

...... shall hold, enjoy and exercise such and the like

privileges, immunities and powers

as"· .... were held, enjoyed and

exercised by the Commons House of Parliament of Great Britain

and Ireland" conferred on the Houses of the Legislature of the

F Australian Colony of Victoria the judicial power to commit for

contempt.

In Queen v. Richards(•) it was held that s. 49 of the

Commonwealth of Australia Constitution Act,

1901 which provid­

ed that "the powers, privileges and immunities of the Senate and

the flouse of Representatives .... shall be such as are declared by

the Parliament, and until declared, shall be those of the Commons

G House of Parliament of the United Kingdom .... ", conferred on

the Houses judicial powers of committing a person to prison for

contempt. It

was observed by Dixon C.J.

"This is not the occasion. to discuss the historical

grounds upon which these powers and priileges attach-

H

ed to the House of Commons. It is sufficient to say .

(1)

[19S9] Supp. 1 S.C.R. 806. (2) (1869-71) 3 L.R. P.C. S60.

(3) 92 C.L.R. 157 .

•

512 SliPREMF COURT REPORTS [I 965] I S.C. R.

~at they were regarded by many authorities as proper

mc1dcnts

of the Legislative function, notwithstanding

the

fat:t that considered more theoretically-perhaps one

might even say,

scientifically-they belong to the judi­cial sphere. But our decision is based upon the ground

that a general view of the Constitution and the separa­

tion

of powers is not a sufficient reason for giving to

tkese words. which appear to us to be so clear. a restric­

tive

or secondary meaning which they do not properly bear."(')

The similarity in the language of the provisions in the Australian

Constitution and

our Constitution

is striking. It was said however

that they were not the same for under

s. 49 the Australian

Houses

might by resolution declare the privileges whereas in our case the

privileges had to he defined by law and that in Australia there were

no fundamental rights. I confess I

do not follow this argument at ail. The question is not how the privileges are declared in

Australia or what effect fundamental rights have on privileges, but

as to the meaning of the words which in the two statutes are iden-

1 ical. In

Richard's case(') an appiication was made to the Judicial

Committee for leave to appeal from the judgment

of Dixon

C.J.

but such leave was refused, Viscount Simonds observing that the

judgment

of the Australian High Court

"is unimpeachable": Queen

v. Richards('). Reference may also be made to Fie/din11 v.

Thomas(') for the interpretation of a similar provision conferring

the privileges of the Commons

on the Legislature of Nova Scotia

in

Canada. It would, therrfore, appear that Art. 194 (3) conferred

on the Assembly the power to commit for contempt and it possess­

ed that power.

The next que~tion is as to the privilege to commit by a general

warrant. There i5 no dispute in England that if the House of

Commons commits by a general warrant without stating the facts

which constitute the contempt, then the courts will not review that

order('). It was however said on behalf of the High Court that.this

power

of the English

House of Commons was not one of its privi­

leges

but it was possessed by that House because it was a superior

court and, therefore, that power, not being a privilege, has not been

conferred on the

State Legislatures by Art. 194 ( 3) of our Consti­

tution. It

is not claimed by the Assembly that it is a superior court ;ind has, therefore. a power to commit for contempt by a general

"arrant. I would find nothing to justify such a claim if it had been

{lj 92 C.L.R. t57, t67. <") 92 C.L.R. 157.

(3) 9! C.L.R. t57, 171. (4) (t896J A.C. 600.

(5) Ste Burd'tt .... Ahbot 3 E.R. 1289; Mny'J Parliamtnrary Prac11et 16th ed. p. 173

A

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SPECIAL REFERENCE (Sarkar J.) 5 J3.

A made. This takes me to the que5tion, is the power to commit by

a general warrant one of the privileges of the House of Commons,

or,

is it something which under the common law of England that

House possessed because it

was a superior court ?

I find no

authority to support the contention that the power to

B commit by a general warrant with the consequent deprivation of

the jurisdiction of the Courts of law

in respect of that committal is

something which the House of Commons had

l:\ecause it was a

superior court. First, I do not think that the House of Commons

was itself ever a court. The history of that House does not support

such a contention. Before proceeding further I

think it necessary

C

to observe that we are concerned with the privileges of the House

of Commons as a separate body though no doubt a constituent part

of the British Parliament which consists also of the King and the

House of Lords. The privileges however with

whiCh we are con­

cerned are those which the House of Commons claims for itself

0

alone as an independent body and as apart from those possessed

by the House of Lords. Indeed it is clear that the privileges of the·

two Houses are not the same: May Ch. III. It may be that in the

early days of English history the Parliament was a court. The

House of Commons, however, does not seem to have been a part

of this Court. In medieval times the legal conception

was that

E the King

was the source of all things; justice was considered to flow'

from him and, therefore, the court of justice was attached to the

King. The King's Court thus was a court of law and that is the

origin of what

is called

"the High Court of Parliament". The

history of the High Court of Parliament has been summarised in

F

Potter's Outlines of English Legal

Histr;>ry (1958 ed.) and may be

set out as follows : The King's Council, under its older title of Curia

Regis,

was the mother of the Common Jaw courts, but still retained

some judicial functions even

after the common law courts had been

well-established. (p. 78). Later however in the 14th and 15th

centuries it came to be held that appeals from the King's Bench lay

to the Parliament and not to the Council. But Parliament had a

G great deal of work to do and could

find little time for hearing

peti­

tions or even for hearing rules of Error from the King's Bench and·

this jurisdiction fell into abeyance in the 15th century. It would

appear, however, that of this Parliament, Commons were no part.

ht 1485 it was held by all the Judges that the jurisdiction in Error

H

belonged exclusively to the House of Lords and not to the whole

Parliament. Professor Holdsworth states in explanation of this

fact that it

was not quite forgotten that the jurisdiction was to the

King and

his Council in Parliament whereas the Commons were

514 SUPREME COURT REPORTS [ 1965] I S.C.R

never part of his Couocil, the King in his Council in Parliament

meaning only the King and the House of Lords; p. 95. It is also

interesting to point out that when the Commons deliberated apart,

they sat

in the chapter-house or the refectory of the Abbot of

West·

minster; and they continued their sittings in that plaee after their

final separation;

May p. 12. The separation referred to is the

separation between the House

of Lords and the House of Commons.

It may also be pointed out that when it is said that laws in England

are made by the King in Parliament, what happens

is that

th~

Commons go to the Bar of the House of Lords where the King either

in person,

or through someone holding a commission from him.

assents to an Act. All this would show that the

House of Com·

mons when it sits as a separate body it docs not sit in Parliament. So

sitting it is not the High Court of Parliament. I wish here to

emphasise that we arc in this case concerned with the privileges

of the House of Commons functioning as a

separate body, that is,

not.sitting in Parliament. May observes at p. 90, "Whether the

House of Commons

be, in law, a court of record, it would be

diffi­

cult to determine:" In Anson's Law of the Constitution, 5th ed.

Vol. I at p. 197, it has been stated that "Whether or not the House

of Commons is a court of record, not only has it the same power

of protecting itself from insult by commitment for contempt, but

the Superior Courts of Law have dealt with it in this matter as

they would with one another, and have accepted as conclusive its

statement that a contempt bas· been committed, without asking

what that contempt may have been." I think in this state of the

authorities

it would at least be hazardous to hold that the House of

Commons was a court

of record. If it was not, it cannot be said

to have

possessed the power to commit for its contempt by a

general warrant as a court of record.

I now proceed to state how this right

of the House of Commons

to commit by a general warrant has been dealt

with by authoritative

textbook writers in England. At

p. 173, after having discussed

the tussle between the Commons and the Courts in regard to the

privileges

of the former and having stated that in theory there is

no way of resolving the real point at

issue should a conflict between

the two arise. May observes, "In practice however.there is much

more agreement

on the nature and principles of privilege than the

deadlock

on the question of jurisdiction would lead one to

expect."

He then adds, "The courts admit :-(3) that the control of each

House, over its internal proceedings

is absolute and cannot be

inter·

fered with by the courts. ( 4) That a committal for contempt by

either House

is in practice within its

e~clusive jurisdiction, since !he

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SPECIAL REFERENCE (Sarkar J.) 515

A facts constituting the alleged contempt need not be stated on the

warrant of committal." So May treats the right of the House of

Commons to commit by a general warrant as one of its privileges

and not something to which it

is entitled under the common law

as of right as. a Court of Record.

-In Cases on Constitutional Law

by' Keir and Lawson, (4th ed.) p. 126, it is stated that among the

B undo_ubted privileges of the House of Commons is "the power of

ex~cuting decisions on matters of privilege by committing members

of .Parliament, or any other individuals,

to imprisonment for con­

tempt of the House.

This is exemplified in

the case of Sheriff of

Middlesex." That is a case where the .House of Commons had

c

col11tnitted the Sheriff of Middlesex for contempt by a general war­

rant, the Sheriff having in breach of the orders of the House carried

out an order of the King's Bench Division, which

he was bound to

do and that Court held that it had no jurisdiction to go into the

question of the legality of the committal by the House : see Sheriff

of

Middlesex('). In Halsbury's Laws of England, Vol. 28 p. 467,

D it

is stated that the Courts of law will not enquire into the reasons

for which a person

is adjudged guilty of contempt and committed

by either House by a warrant which does not state the causes

of

his arrest. This observation is made in dealing with the conflict

between the House of Commons and the courts. concerning the

privileges of the former and obviously treats the power

to issue a

E general warrant as a matter of the privilege of the House: Lastly,

in Dicey's Constitutional Law

(10th ed.) at p. 58 in the footnote

it is stated.

F

"Parliamemti.ry priviilegi:1 has from the nature of

things never been the subject of precise legal definition.

One or two points are worth notice as being clearly

established.

(

1) Either House of Parliament may commit for

contempt; and the courts will not go behind the com­

mittal and enquire into the facts constituting the alleged

contempt provided that the cause of the .contempt is

G not

stated."

I thus find that writers of undoubted authority have treated this

power to commit by a general warrant with the consequent depri­

vation of the court's jurisdiction to adjudicate on. the legality of the

imprisonment, as a matter of privilege of the House and not as a

right possessed

by it as a superior court.

H

. t now proceed to refer to recent decisions of the Judicial Com-

mittee which also put the right of the House of Commons

to com-

(I)

113 E.R. 419.

. '

516 SUPREME COURT REPORTS [1965) I S.C.R.

init by a general warrant on the ground of privilege. · The first

case which I will consider is

Glass's(') _case. There the Legislative -

Assembly of the Colony of Victoria by a general warrant commit-

A

ted Glass

to prison for contempt arid the matter was brought before

the court

on a habeas corpus petition. I have earlier stated that

under certain statutes the Assembly claimed the same privileges

which the House of Commons possessed. The Supreme Court of B

Victoria held in favour of Glass. The matter was then taken to

the Judicial Committee and it appears to have been argued there

that

"the privilege is the privilege of committing for contempt

merely; that the judging of contempt without appeal, and the power

c

of committing by a general

Wariant, are mere incidents or accidents

applicable to this Country, and not transferred to the Colony." The

words "this Country" referred to England. _ Lord Cairns rejected

this argument with the following observations: "The ingredients of

judging the contempt, and committing by a' general-Warrant, are

perhaps the most important ingredients in the privileges which the

House of Commons -in this Country possesses; and it wouid be D

5trange indeed if, under a power to transfer the whole of the pri­

vileges and powers of the House of ·Commons, that which would

only be a part, and a comparatively insignificant part,

of this

privilege and power were

transferred." (p. 57~). He also said,

(p.

572)

"Beyond all doubt, one of the privileges and one of the

most important privileges of the House of

Commons-is the

i;

privilege of committing for contempt and incidental to that privi--

'lege, it has, as has already been stated, been well-established

in

this Country that the House of Commons have the right

to be the

judges themselves of what is contempt, and

to commit for that

contempt by a Warrant, stating that the commitment is for

con­

tempt of the House generally, without specifying what the character F

of the contempt

is. It would, therefore, almost of necessity follow, that the Legislature of the Colony having been permitted to carry

over to the Colony the privileges, imlnunities, and powers of the

House of Commons, and having in terms carried over

all the

pri­

vileges and powers exercised by the House of Commons at the

date

of the Statute, there was carried over to the

Legislativa

Assembly of the Colony the privilege or power of the House of

Commons connected \vith

contempt-the privilege or power,

namely,

of committing for contempt, of judging itself of what_ is

contempt, and of committing for

contemJ;Jt by a Warrant stating

generally that a contempt had taken place." In Richard's case(')

11

the power to commit by a general warrant was .:onsidered

as a privilege of the House and the observations of Lord Cairns

G'

(1)(1869:'/ffL.R.-:-Jp--:-c:sw. (2) 92 C.LR. 157 .

. --... ; ,---~ -

----~-----

---

-~ ---------------------·

-----==--===-------------

-.::--:=..=:-=--.::-_-:: ___________ ----

-----

-------== -::::--=------- -----------

------=-=---=--=------=--=---= -----:;--::_ ----

- ------------------------

:-:-===-==------.------:-::::----------------------

_______ -:.-::- __ -=

--. ------------. ---------~-------

-----__ ;;--.--------

------=-:____=______ __ _ -------------

-=----=----:=-----=-----·---------

,•

••

...

A

B

c

D

SPECIAL REFERENCE (Sarkar J.) 517

in Glass's(') case were cited in support of that view. As I have

already said this view was upheld by the Judicial Committee ;

Queen v. Richard(

2

). It is of some interest to note that Dixon

C.J. was of the opinion, as I have earlier shown, that the power

to commit

was scientifically more properly a judicfal power but

nonetheless

he found that it was a privilege technically so called

of the House of Commons and so transferred to the Australian

Houses

by s. 49 of the Australian Constitution Act of

1901. It

is aiso necessary to state here that this case was of the year 1955

and shows that the view then held was that the right to commit

by a general warrant was a privilege of the House. I am pointing

out this only because it has been suggested that even if it was a

privilege. it had been lost by desuetude. These cases show that

that

is not so. Fielding v. Thomas(

8

)

also

talces the same view.

ft was said that the decisions of the Judicial Committee were

not binding on

us. That may be so. But then it has not been

shown that they are wrong and, therefore, they are of value

at least

as persuasive authorities.

The fact that the decisions of the Judicial

Committee are not binding on

us as judgments of a superior court

is however to no purpose. The real question for our decision is

whether the House of Commons possessed a certain

privilege: We

may either have to take judicial notice of that privilege or decide its

existence as a matter of foreign law. It is unnecessary to decide

E which

is the correct view. If the former, under s. 57 of the Evi­

dence Act a reference to the

·authorised law reports of England

would

be legitimate and if the latter, then again under s. 38 of that

Act a reference

to these reports would be justified. So in either

case

we are entitled to look at these reports and since they contain

F

G

H

decisions of one of the highest Courts in England, we are not

entitled to say that what they call a privilege of the House of Com­

mons of their country

is not a privilege unless other equally high

authority

talcing a contrary view is forthcoming.

I now come to some of the English cases on which the proposi­

tion that the right to commit by a general warrant

is not a matter of

privilege of the House of Commons but a right which it possessed as

a superior court

is, as r understood the argument of learned

3dvo-

cate for the High Court, based. I will take the cases in order of

date.

It will not be necessary to refer to the facts of these cases

and it should suffice to state that each of them dealt with the right

of the House of Commons to commit by a general warrant. First,

there

is Burdett v.

Abbot('). In this case, in the first court judg-

(1) (1869-71) LR. 3 P.C, 560, (2) 92 C.L.R. 171.

(3) [1896] A.C. 600. (4l !04 E.R. 501.

518 SUrREME COURT REPORTS [1965] I S.C.R.

ments were delivered by Ellenborough C.J. and Baylay J. With

regard to this case. Anson

in his book at p. 189 says,

"It is notice­

able that

in the

ca~e of Burdett v. Abbot while Bayley J. rests

the claim of the House to commit on its parity of position with

the Courts of Judicature, Lord Ellenborough C.J. rests his decision

on the broader ground of expediency, and the necessity of such a

power for the maintenance of the dignity

of the

House." Ellen­

borough C.J., Therefore, according

to Anson, clearly does not take

the view that rhe House

of Commons is a court and all that Bay­

ley J. does, accord

in~ to him, is to put the House of Commons in

parity with a Superior Court. If the House of Commons was a

court, there.

of course. was no question of putting it in parity with

one. There

was an appeal from this judgment to the House of

Lords and

in that

anpeal after the cl°'e of the arguments, Lord

Eldon L.C. reterred the following question to the Judges for their

advice, "Whether, if the Court of Common Pleas, having adjudged

an act to

t

e a con tempi of Court. had committed for the contempt

under a warrant, stating such adjudication generally without the

particular drcumstances, and the matter were brought before t~e

Court of King's Bench, by return to a writ of habeas corpus. the

return setting forth the wa·rrant, stating such adjudication of con­

tempt generally: whether in that case the Court

of King's Bench

would discharge the prisoner. because the particular facts and cir­

cumstances, out of which the contempt arose, were not set forth in

the

warrant": Burdett v. Abbot('). The Judges answered the

question in the negative. Upon that Lord Eldon deliverocl his

judgment with which the other members of the Court agreed. stat­

ing that the House

of Commons had the power to commit by a

general warrant. I am unable to hold that this case shows that

Lord Eldon came to that conclusion because the House of Com­

mons was a superior court. It seems to me that Lord Eldon

thought that the House

of Commons should be treated the same

way as

one superior court treated another and wanted to find out

how the courts treated each other. I shall later show that this is

the view which has been taken of Lord Eldon's decision in other

cases. But I

will now mention that if Lord Eldon had held .that

the House

of Commons was a court, a constitutional lawyer of

Anson's eminence would not have put the matter

in the way that

I have just read from his work.

Then I come to the case of Stockdale v.

Hansard('). That

case was heard by Lord Denman CJ., Littledale J., Patteson J. and

Coleridge

J. Lord Denman said, (p. 1168),

<II 3 E.R. 1_289. (2) 112 E.R. 1112.

A

B

D

F

c;

II

A

B

c

SPECIAL REFERENCE (Sarkar I.)

"Before I finally take leave of this head of the argu-

ment, I will dispose of the notion that the House of

Commons

is a separate Court, having exclusive jurisdic­

tion over

the subject-matter, on which, for that reason,

its adjudication must

be final. The argument placed

the House herein on a level with the Spiritual Court and

the Court of Admiralty. Adopting

tJ:\is analogy, it

appears

to me to destroy the defence attempted to the

present action

.... we are now enquiring whether the

subject-matter

does fall within the jurisdiction of the

House of

Commons. It is contended that they can bring

it within their jurisdiction

by declaring it so. To this

claim,

as arising from their privileges, I have already

stated

my answer: it is perfectly clear that

n~qe of these

Courts could

give themselves jurisdiction by adjudging

that they enjoy

it."

519

Clearly Lord Denman did not proceed on the basis that the Corn-

n mons was a court. In fact he refers to the right "as arising from

this privilege." Then I find Littledale J. observing at p. 1174:

"But this proceeding in the House of Commons does not arise on

adverse claims; there are

no proceedings in the Court; there is no

Judge

to decide between the litigant parties; but it is the House of

Commons

who are the only parties making a declaration of what

E they say belongs

to

them." So Littledale J. also did not consider

the Commons

as a court. Then came Patteson J. who stated at

p. 1185,

"The House of Commons by itself is not the court of

Parliament". Then again at p. 1185 he observes:

F

G

H

"I deny that mere resolution of the House of Lords

.... would be binding upon the Courts of Law •......

much less can a resolution of the House of Commons,

which

is not a Court of Judicature for the decision of

any question either of law or fact between litigant

parties, except in regard

to the election of its members,

be binding upon

the Courts of Law."

Lastly I come to Coleridge J. He stated at p. 1196:

"But it is said that this and all other Courts of

Law are inferior in dignity to the House of Commons,

and that therefore it

is impossible for us to review its

decision. This argument appears

to me founded on a

misunderstanding of several particulars;

first, in what

sense it is that this Court is inferior to the House of

Commons; next

in what sense the House is a Court at

all .... "

L!Sup.C.I./65-8

520 SUPREMF. COliRT REPORTS ( 1965] l S.C.R.

Then at p. 1196 he stated :

"In truth, the House is not a Court of Law at all,

in the sense

in which that term can alone be properly

applied here; neither originally. nor

by appeal, can it

decide a

matter in litigation between two parties; it h!15

no means of doing so; it claims no such power; powers

of enquiry and of accusation it has, but it decides noth­

ing judici:11ly, except where it is itself a party, in the

case of contempts.

As to them no question of degree

arises between

Courts;"

The observations of Coleridge J. are of special significance for the

reasons hereafter

to

appcJr. It is obvious that neither Patteson J.

nor Coleridge J. thought that the House of Commons was a Court

or possessed any powers as such.

Next

in order of date is the case of the

Sheriff of Middlesex(').

L11rd Denman. C.J. saiu at p. 426:

"Representative bodies must necessarily vindicate

their authority by means of their own; and those means

lie

in the process of committal for contempt. This

applies not to the Houses of Parliament only, but [as

was observed in

Burdell v. Abbot (14 East, !38)],

to the Courts of Justice, which, as well as the Houses,

must be liable to continual obstmction and insult if they

were not entrusted with such powers. It

is unnecessary

to discuss the quc.stion whether each House of

Parlia­

ment be or be not a Court; it is clear that they cannot

exercise their proper functions without the power

of

protecting themselves against interference. The test of

the authority of the House of Commons in this respect,

·

submitted by Lord Eldon to the Judges in Burdett v.

Abbot ( 5 Dow, 199) was whether, if the .Court

of Common Picas had adjudged an act to be a contempt

of Court, and committed for it, stating the adjudication

generally,

the Court of King's Bench, on a habeas corpus

setting forth the warrant, would discharge the prisoner

because the facts

and circumstances of the contempt

were not stated. A negative answer being given,

Lord

Eldon, with the concurrence of Lord Erskine (who had

before been adverse to the

exercise of the jurisdiction),

and without a dissentient voice from the House, affirm­

ed the judgment below. And we must preiume that

---

(!) 113 E.R. 4t9.

B

c

D

E

G

H

A

B

c

D

SPECIAL REFERENCE (Sarkar !. )

what any Court, much more what either House of Parlia­

ment, acting on great legal authority, takes upon it to

pronounce a contempt,

is

so."

521

This observation would support what I have said about the

judgment of Lord-Eldon

in Burdett v. Abbot('). Denman C.J.

did not

think that Lord Eldon considered the House of Commons

to

be a Court for he himself found it unnecessary to discuss that

question. The basis

why he thought that the House of Commons

must

.possess the right to coinniit by a general warrant was one

of expediency

and of coniidence in a body of that stature.

Coleridge

J. observes at p. 427,

"It appears by precedents that the House of Commons

have been long

in the habit of shaping their warrants in

that manner. Their right to adjudicate in this general

form

in cases of contempt is not founded on privilege,

but rests upon

the·same grounds on which this Court or

the Court

of Common

Pleas might commit for a con­

tempt without stating a cause in the commitment. Lord

Eldon puts the case

in this manner in Burdett v. Abbot

(5 Dow, 165, 199)."

Great reliance is placed on this observation of Coleridge J. but I think that is due to a misconception. Coleridge J. at p. 427 ex-

E pr=ly affirms all that had been said by him and the other Judges in

Slockdale v. Hansard('). · As I have earlier shown, he had there

said that "in truth, the House is not a Court of Law at all." There­

fore when he said that the right to adjudicate in the general form

was not founded on privilege, whatever he might have meant, he

did not mean that it

was founded on the House of Commons being

F a court. I think what he meant

was that it was a right which the

House of Commons had to possess in order to discharge its duties

properly and, therefore, not something conceded to it as a sign

of honour and respect.

He might also have meant that the power was not something peculiar to the House as it was also possessed

by the courts for the same reason of expediency, and, therefore, it

G

was not a privilege, a term which has been used in the sense of

wmething which the Parliament possessed and which exceeded

those possessed by other bodies or individuals : Cf. May 42.

Then

comes the case of Howard v. Gossett('). It will be en011gh to refer to the judgment of the Court of Exchequer

Chamber in appeal which begins at

p. 158. That judgment

was·

H delivered by Parke B. who observed at p. 171:

(1) 31l.R.1289. (2) 112 E.R. 1112.

(3) 116 E.R. 139.

.522

SUPRBM!! COURT Rl!POllTS ( 1965) I S.C.R.

"the warrant of the Speaker is, in our opinion, valid, A

so as to be a protection to the officer of the House

upon a principle which,

as it applies to the process

and

officers of every Superior Court, must surely be appli-

cable

to those of the High Court of Parliament and

each branch of

it." ·

Herc again. the House is treat~d as bei~g entitled to the same rcapcct B

u a supenor court, but 1t is. not bemg said that the House is a

supenor court.

Lastly, I come to

Bradlaugh v. Gossett(') in which at p. 285

Stephen

J. said,

"The House of Commons is not a Court of

justice." I

am unable to sec how these authorities can be said to C

hold that the power of the House of Commons

to commit by a

general warrant

is possessed by it because it is a superior court.

It

was then said that even if the right to commit by a general

warrant cannot be said to have been possessed by the House of

Commons because

it was superior court, the observations in

th• n

cases on the subject, including those to which I have already

referred, would establish that the right springs from som~ rule of

comity of courts, or of presumptive evidence or from an agreement

between the courts of law and the House or lastly from some con­

cession made by the former to the latter. I at once observe that

these cases

do not support the contention and no text-book has E

taken the

view they do or that the right is anything but a privilege.

The contention further seems to

me to be clearly

fallacious aad

overlooks the basic nature of a privilege of the House of Commons.

I have earlier stated the nature of the privilege but I will repeat it

here. All privileges of the House of. Commons are based on law.

That law is known as lex Parliamenti. Hence privileges are F

matters which the House of Commons possesses as of right. Iu

Stockdale v. Hansard(

2

)

all the Judges held that the rights of the

House of Commons are based on

lex Parliamenti and that law like

any other law,

is a law of the land which the courts arc entitled to

administer.

G

Now if the privilege of committing by a general warrant

is a

right enforceable in law which belongs to the House of Commons,

it cannot be a matter controlled by the rule of comity of courts.

Comity of courts

is only a self-imposed restraint. It is something

which the court on its own

chooses not to do. It is really not a

rule of law at all.

It creates no enforceable right. A 'right' to the H

privilege cannot be based on it. Besides there is no question of --·-· .. ------

(IJ (1884) L.ll. 12 Q.B.D. 271. (2) 112 B .... ltl%.

SPECIAL REPERENCE (Sarkar J.) 52~

A comity of courts unleM there> are two courts, each extending civility

or consideration to the other. Here we have the House of Com­

mons and the courts of law. The former is not a court and the

latter needs

no civility or consideration from the House for

its proper functioning. Here there is no scope of applying any

principle of comity of courts.

B

Next as to the privilege being really nothing more than

a rule

of presumption that a general warrant of the House of Common&

imprisons a person legally, so that the question of the legality of

the committal need not be examined by a court of law, I suppose

it is said that this is a presumption which the law requires to be

c made. . If it is not so, then the right of the House would depend oa

the indulgence of the judge concerned and, therefore, be no right at

all. That cannot be, nor is it said that it is so. What then ? If

it is a presumption of Jaw, what is the law on which the presump­

tion is based ? None has been pointed out and so far as I know,

none exists unless it be lex Parliamenti. Once that is said, it really

D becomes a matter of privilege for the lex Par/iamenti would not

create the presumption except for establishing a privilege. A right

created by lex _Parliamenti is a privilege. This I have earlier said

in discussing the nature of privilege8.

Lastly, has the right its origin in agreement between the House

of Commons and the courts of law, or in a concession granted by

E the latter to the former 7 This is a novel argument. I have not

known of any instance where a right, and therefore, the law on

which it is based, is created by an agreement with courts. Courts

do not create laws

at all, least of all by agreement; they ascertain

them and administer them.

For the same reason, courts cannot

F create a law by concession. A court has no right to concede

a

question of law unless the law already exists. I find it impossible

to imagine that any parliamentary privilege which creates an

enforceable right could be brought into existence by agreement

with courts

or by a concession made by them.

·

Before I part with the present topic I will take the liberty of

G observing that it is not for us to start new ideas about the privileges

of the House of Commons, ideas which had not ever been imagined

in England. Our job is not to start an innovation as to privileges

by our own researches. It would be unsafe to base these novel

ideas

on odd observations in the judgments in the English cases,

torn out of their context and in disregard of

the purpose for

H which they were made. What I have quoted from these

cases will

at least make one pause and think that these cases can furnish no

sure foundation for a novel theory as to the right of the House of

524 SUPREME COURT REPORTS [1905] 1 S.C.R.

Commons to commit by a general warrant. Researches into old

English hi.qory arc wholly out of place in the present context and

what i> more. me likely to lead to misconceptions. To base

our conclu>ion JS to the privileges on researches into antiquities,

will furthermore be an erroneous procedure for the question is

what the prlVllcgcs of the House of Commons were recognised to

be in 1950. RescJrches into the period when these privileges were

taking shape can afford no answer to their contents and nature in

1950. The question can be answered only by asccnaining whether

the right under discussion was treated as a privilege of the House

of Commons by authoritative opinion in England in the years

preceding 1950.

I then come to the conclusion that the right to commit for con­

tempt by a general warrant with the consequent deprivation of

jurisdiction of the courts of law to enquire into that committal is

a privilege of the House of Commons. That privilege is, in my view,

for the reasons earlier st::ted, possessed by the Uttar Pradesh

Assembly

by reason of Art. 194 ( 3) of the Constitution.

It

is then said that even so that privilege of the Assembly can

he exercised only subject to the fundamental rights of a citizen

guaranteed

by the Constitution. That takes me to

Sharrna's

ca,;e('). As I read the judgment of the majority in that case, they

seem to me to bold that the privileges

of the House of Commons

which were conferred

on the Houses of a State Legislature by Art.

194 (

3), take

pr~cedence over fundamental rights. The facts were

these. A House of the Bihar Legislature which also bad made no

Jaw defining its privileges under Art. 194 (

3), had directed certain

pans

of its proceedings to be expunged but notwithstanding this

the petitioner published a full account of the proceedings in hi~

paper including what was expunged. A notice was thereupon

issued to him by the House to show cause why steps should not

be taken against him for breach of privileges of the House. The

privilege claimed in that case was the

right to prohibit publication

of its proceedings, TI1e petitioner. the Editor of the paper, then

filed a petition under Art. 32 of the Constitution stating that the

privilege did not control his fundamental right

of freedom of

speech under Art. 19( I )(a), and that. therefore. the House had

no

rirht to take proceedings against him. He also disputed that

the House of Commons had the privilege which the Bihar Assembly

claimed. The majority held that the House possessed the privilege

to prohibit the publication of its proceedings and that privilege was

not

subject to the fundamental right of a citizen under Art.

(0 f!059) Supp. t S.C.R. 806.

A

B

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D

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A

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SPECIAL REFERENCE (Sarkar i.) 525

19(l)(a). Subba Rao J., took a dissentient view and held that

fundamental rights take precedence over privileges and also that

the House did not possess the privilege of prohibiting the publica­

tion of 1its proceedings. With the latter question we are not con­

cerned the present case. Tn the result Sharma's(1) petition was

dismissed.

On behalf of the High Court two points have been taken in

regard to this case.

lt was first said that the majority judgment

required reconsideration and then it was said that in any event,

that judgment only held that the privilege there claimed took

pre.­

cedence over the fundamental right of the freedom of spe~ch and

c not that any other privilege took precedence over fundamental

rights. I

am unable to accept either of these contentions.

On behalf of the Assembly it has been pointed out that in a

reference under Art. 143

we have no jurisdiction to set aside an

earlier decision of this Court, for

we have to give our answers to

D the questions referred on the law as it stands and a decision of this

Court

so long as it stands of course lays down the law. I am unable

to say that this contention

is idle. It was said on behalf of the

High Court that

in /11 re. Delhi

Laws Act(') a question arose

whether a decision of the Federal Court which under our Consti­

tution has the same authority as our decisions, was right. It may

E be argued that this case does not help, for the question posed, itself

required the reconsideration of the earlier judgment. I do not

propose to discuss this matter further, for I do not feel so strongly

in favour of the contention of the Assembly that I should differ

from the view of

my learned brothers on this question.

F

I feel no doubt, however, that the majority judgment in

Sharma's case(') was perfectly correct when it held that privileges

were not subject

to fundamental rights. I have earlier set out the

first three clauses of Art. 194. The first clause

was

expre5'ly

made subject to the provisions of the Constitution-whatever the

provisions contemplated

were-while the third clause was not

G made

so subject. Both the majority and the minority judgments

are agreed that the third clause cannot, therefore, be read

as if it

had been expressly made subject to the provisions of the

Constitu­

tion. For myself, I do not think that any other reading is possible.

Clause (

3) of Art. 194 thus not having been

expressly made sub­

ject to the other provisions of the Constitution, how is a conllict

H between it and any other provisions of the Constitution which may

be found to eidst, to be resolved ? The majority held that the

(I) [19591 Supp. I S.C.R. 806. (2) [1951] S.C.R. 747.

526 SuPllEMI! COURT ltEPOltTS (1965] I s.c.a.

P;inciple of harmonious construction has to be applied for recon-,

cllmg the two and Art. 194 ( 3) being a special provision must

ta.kc precedence over the fundamental right mentioned in Art.

19(l)(a) which was a general provision: (p. 860). Though

Subba Rao J. said that there

was no inherent inconsistency

bet­

ween Art. 19 (I )(a) and Art. 194 ( 3), he nonetheless applied the

rule of harmonious construction. He felt that since the legislature B

had a wide range of powers and privileges and those privileges

can be exercised without infringing the fundamental rights, the

privilege should yield to the fundamental right. This construction,

he thought, gave full effect

to both the articles: (pp. 880-1). With

great respect to the learned Judge, I find it difficult to follow bow C

this interpretation produced the result of both the articles having

effect and thus achieving a harmonious construction.

Ex facie there is no conflict between Arts. 194 ( 3) and

I 9 ( 1 ) (a), for they deal with different matters. The former says

that the State Legislatures shall have the powers and privileges

of

the English House of Commons while Art. 19(1)(a) states that D every citizen shall have full freedom of speech. The conllict

however comes to the surface when we consider the particular

privileges claimed under Art. I 94 ( 3). When Art. I 94 ( 3) says

that the State Legislatures shall have certain privileges, it really

incorporates those privileges

in itself. Therefore, the proper read-

ing of Art. 194 ( 3)

is that it provides that the State

Legislatures •

have, amcngst other privileges, the privilege to prohibit publica­

tion of any of it~ proceedings. It. is only then that the conflict

beiween Arts.

194(3) and 19(1)(a) can be seen; one restricts a

right

to. publish something while the other says alt things may be

published. I believe that

is how the articles were read in

Sharrna's .,

case ( ') by all the 1 udges. If they bad not done that, there would

have been no question

of a

conflict between the two provisions or

ot reconciling them.

Now

if Art. 19 ( 1) (a) is to have precedence, then a citizen bas

full liberty to publish whatever

he likes; he can publish the

pro­

ceedings in the House even though the House prohibited their pub-G

lication. The result of that reading however

is to wipe out that

part of Art.

194(3) which said that the State Legislatures shall

have power and privilege to prohibit publication of their

proceed­

ings. That can hardly be described as harmonious reading of the

provisions, a reading which gives effect to both provisions. It is a

reading which gives effect to one of the provisions and treats the H

olher as if it did not exist.

(I) [19S9] Supp. 1 S.C.R. 806.

SPECIAL REFERENCE (Sarkar J.) 527

A It is true that if Art. 19 ( 1) (a) prevailed, it would not wipe out

all the other privileges of the House of Commons which had to be

read in Art. 194 ( 3). Thus the right of the House to exclude

strangers remained intact even if the right to prohibit publication

of proceedings was destroyed by Art. 19 ( 1

)(a). But this is to no

purpose

as there never

was any conflict between the right to exclude

B strangers and the freedom of speech and no question of reconciling

the two

by the rule of harmonious construction arose. When one

part of a provision alone

is in conflict with another provision, the

two are not reconciled by wiping out of the statute book the

con­

flicting part and ·saying that the two provisions have thereby been

C harinonised because after such deletion the rest of the first and the

whole of the second operate. We are concerned with harmonising

two conflicting provisions by giving both the best effect possible

and that is not done by cutting the gordian knot by removing the

conflicting part out of the statute.

I agree that in view of the conflict between Art. 194 (

3)

jd

D Art. 19 ( 1) (a), which arises in the manner earlier stated, it has to

be resolved by harmonious construction. As I understand the

principle, it

is this. When the Legislature-here the

Constitution­

makers-enacted both the provisions they intended both to have

effect. If per chance it so happens that both cannot have full effect,

then the intention of the legislattll'e would be best served by giving

E the provisions that interpretation which would have the effect of

giving both