806 SUPREME COURT REPORTS [1959] Supp.

•958 the Punjab Government would have authority to

D. s. Ga.ew•I institute the enquiry against him. The Central

v. Government would only come into the picture after

Th• S•••• of the enquiry is concluded and if it is decided to impose

Punj•b c;. Another one of the three punishments mentioned in r. 4(1).

Wanchoo J.

This contention must also be rejected.

We, therefore, dismiss the ·appeal with costs to the

State of Punjab.

Appeal dismissed..

PANDIT M. S. M. SHARMA

v.

SHRI SRI KRISHNA SINHA AND. OTHERS

(S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA,

K. SUBBA RAO and K. N. W ANOHOO, JJ.)

State Legislature, Privilege of-Pawer to prohibit publication

of proceedings including portions -expunged by the SPeaker-Publi·

cation, if a breach of privilege-If can prevail over tM fundamental

right to freedom of speech and expression-Freedom of the Press­

Scope and extent-Constitution of India, Arts. z94(3), z9(z)(a).

The petitioner, the. Editor of the English daily newspaper

Searchlight of Patna, was called upon by the Secretary of

the

Patna Legislative Assembly to show cause before the Committee

of Privileges of the Assembly why appropriate action should not

be taken against him for the breach

of privileges of the

Speaker

and the Assembly for publishing in its entirety a speech. deliver­

ed in the Assembly by a member thereof, portions of which were

directed to be expunged by the Speaker.

It was contended on

behalf of the Petitioner

that the said notice and the proposed

action by

the Committee were in violation of his fundamental

right to freedom of speech

and expression under Art. l9(1)(a)

and of the protection of his personal liberty under Art.

21 of the

Constitution, and that, as an editor of a newspaper, he was en­

titled to all the benefits of the freedom of the Press. The

respondents relied on Art. 194(3) of

the Constitution

llnd claim­

ed that the proceedings in the House as those in the British

House

of Commons were not usually meant to be published, and

in no circumstances was it permissible to publish the parts of a

r

(1) S.C.R. SUPREME COURT R~PORTS 807

I

speech which were directed to be expunged and, therefore; form- r958

ed no part of the official report and such publication was iri clear

breach of the privileges of the Assembly. The points for Pandit

determination were: M. s. M. Sharma

(I) Could the British House of Commons entirely prohibit v.

the publication of its proceedings or even of such port ons of Shri Sri Krishna

them as had been directed to be expunged ? Sinha and Others

(2) Assuming that the British House of Commons ha:d such

power

and consequently the

State Legislature also had such

power under Article 194(3), could

the privileges of the

Legi~lature

under that Article prevail over the fundamental right guarante­

ed by Art. 19(1)(a)?

The Bihar Legislature not having admittedly made

amy law

governing

its powers and privileges under Entry 39 of List.JI of

the

Seventh Schedule to the Constitution, the question naiturally

was as to what were the powers, privileges and immunities of

the British House of Commons at the commencement ·of the

Constitution.

Held(per Das, C.J., Bhagwati, Sinha and Wanchoo, ]].)

that, there could be no doubt that the liberty of the

Pr~ss was

implicit

in the freedom of speech and expression guaranteed to a

citizen under Art. 19(1)(a)

of the Constitution and that must

include

the freedom of propagation of ideas ensured by the free­

dom of circulation.

Ramesh Thappar v. State of Madras, [1950] S.C.~. 594,

Brijbhushan v. The State of Delhi, [1950] S.C.R. 605 and 'Express

Newspaper Ltd. v. Union of India, [1959] S.C.R. 12, relied on.

The liberty

of the

Press in India flowed from this freedom

of speech and expression of a citizen and stood on no higher

footing

and no privilege attached to the

Press as such.

I

Arnold v. King Emperor, (1914) L.R. 41 I.A. 149, referred to.

A survey

of the evolution of Parliamentary privileges in

England showed beyond doubt that at the commencement of the

Indian Constitution, the British House of Commons had the

power or privilege

of prohibiting the publication of

evei;i a true

and faithful report of the debates or proceedings that took place

in the House, and with greater reason, the power and privilege

of prohibiting publication

of an inaccurate or garbled

v~rsion of

such debates

and proceedings. These were the powers and

privileges

that Art. 194(3) conferred on

State Legislatures and

Art. 105(3) conferred on the Houses of Parliament in India.

It would not be correct to contend that Art. 19(1)(a) of the

Constitution controlled

the latter half of Art.

194(31 or of

Art. 105(3) of

the Constitution and that the powers, privileges

and immunities conferred by them must yield to the

fund~mental

right of the citizen under Art. l9(1)(a). As Arts. 194(3) and 105(3)

stood in the same supreme position as the provisions of Part III

of the Constitution and could not be affected by Art. 13, the

principle of harmonious construction must be adopted.

808 SUPREME COURT REPORTS [1959] Supp.

r958 So construed, the provisions of Art. r9(r)(a), which were

general, must yield to Art. 194(1) and the latter part of its cl. (3),

P•ndit which are special, and Art. l9(1)(a) could be of no avail to the

1\1. s. /II. Shanna petitioner.

v. Rmnjilal v. I11come-tax Officer, Mohindergarh, (1951] S.C.R.

Shri Sri r,·rishna 127 and Laxa11tanappa Hanuntantappa v. Union of India, [1955J

Sinha a111l Others I S.C.R.' 769, applied.

Anand Bihari Mishra v. Ram Sahay, A.LR. (r952) M.B. 31,

disapproved.

Gimapati Keshavram Reddy v. Nafisul Hasan, A.LR. (1954)

S.C. 636, explained as having proceeded on concession by

counsel.

Nor could

the petitioner complain of any breach, actual or

threatened, of his fundamental right under Art. 2r of the

Con­

stitution since Art. 194(3) read with the rules, framed by the

Bihar Legislative Assembly in exercise of its power under

Art. 208 of the Constitution, laid down the procedure for enforc­

ing

its po\vers, privileges and immunities under that Article and

any

deprivation of his personal liberty as a result of the proceed­

ings before the

Committee of Privileges \VOuld be in accordance

with procedure established by law.

Held, further, that it was not for this Court to prescribe any

particular period for moving a privilege motion so as to make the

subject matter of the motion a specific matter of recent occur­

rence

within the meaning of the said rules. This was a matter

for the speaker alone to decide.

The time within which the

Committee of privileges was to

submit its report was a matter between the House and its Com­

mittee and the party whose conduct was the subject-matter of

investigation could have no say in the matter.

The effect in law of the order of the Speaker to expunge a

portion of the speech of a member might be as if that portion

had not been spoken and a'report of the whole speech despite the

speaker's order might be regarded as a perverted and unfaithful

report and prima jacic constitute a breach of the privilege of the

Assembly. Whether there had in fact been a breach of the

pridlege of the Assembly was, however, a matter for the Assem­

bly alone to judge.

Per Subba Rao, ].-The second part of Art. r94(3) was clearly

a

transitory provision and had no higher sancitity than that of

the first.

While a law when made by the State Legislature

under the first part would, by virtue of Art. r3(2), be void to the

extent it contravened the provisions of r9(r)(a), unless saved by

Art. r9(2), there could be no reason why the powers, privileges

and immunities conferred under the second part should be free

from the impact of the iundamental rights.

As there was no inherent inconsistency between Arts. r9(r)(a)

and the second part of Art. r94(3), full effect must be given to

them both on the principle of harmonious construction. The

(I) S.C.R. SUPREME COURT REPORTS 809

wide powers and privileges enjoyed by the Legislature and its r958

members should, therefore, be so exercisr,d as not to impa,ir the

fundamental rights

of the citizen, particularly of one

wlfo was Pandit

not a member of the Legislature. In case of a conflict, M. s. M. Sha,ma

Art. l9(1)(a) must prevail over Art. 194(3) and not vice ver~a and v.

the privilege must yield to the extent it affected the funda-Sh'i Sri Krishna

mental right. Sinha and Olhus

Gunupati Keshavram Reddy v. Nafisul Hasan, A.LR. \1954)

S.C. 636, applied.

At the commencement of the Constitution the House of

Commons had no privilege to prevent the publication of a cprrect

and faithful report of its proceedings, save those in respect of

secret st:ssions held under exceptional circumstances, and had

only a limited privilege to prevent mala fide publications of garbl­

ed, unfaithful

and expunged reports of the proceedings. In the

instant case, neither

the notices

uor the documents enclosed

therewith disclosed any mala fides on the part of the petitioper or

that he had knowledge that any portion of the speech had been

expunged by

the Speaker.

Consequently, even supposing

Art. 194(3) prevailed over Art. l9(1)(a), the petitioner was en-

titled

to succeed. !

W asan v.

Walter, (1868) L.R. 4 Q.B. 73, relied on.

ORIGINAL JURISDICTION: Petition No. 122 ofl958.

Petition under Article 32 of the Constitution of

India for the enforcement of Fundamental rightE1.

I

1958, Oct. 16, 17, 28, 29, 30. Basdeva Prasad and

N aunit Lal, for the petitioner :-The main question to

be considered in

the case is as to whose

pi'ivileg~ has

been involved

and violated-those of the press

or the

House of the Legislature. Notice served on the....JJ.peti­

tioner by the Privileges Committee of the J:Sihar

Assembly is illegal and invalid and the Constitution of

the Privileges Committee is illegal as the Chief Minister

of the State Dr. S. K. Sinha himself has been the

Chairman of the Committee.

On May 30. 1957, there was a debate in the Bihar

Legislative Assembly when M. P. N. Singh, one of the

oldest members

of the Assembly, made a

speech. the

gist of which was a criticism of the administration of

Bihar as run by Dr. S. K. Sinha, the Chief Minister,

a.nd cited certain instances of favouritism. At• this

stage the Speaker held that a portion of the speech

was objectionable

and ordered it to be struck

off and

expunged. It was a general statement. No specific

1o:i

810 SUPREME COURT REPORTS [1959jSupp.

direction

was given to the

Press. The opposite party

Pandit

was claiming the right to prohibit all publication of

proceedings-a right which the House of Commons pos-

M. S. M. Sharnia . h. h" b h

v. sesses wit its own istory, ut never exercises it. T e

SA.is,; K.ishna speech was made on May 30, 1957, and the official

Si•ha ""d Othm authorised report was published and made available

on January 2, 1958. 'The Search Light', being a

daily newspaper, came

out on May 31 with what

happened in the

1

Assembly. A privilege motion was

said to have been moved and referred to the

Committee

of Privileges; no voting was taken and no time limit

was given for the presentation of the report which was

required under the rules of the House. If no time

limit was prescribed then under rule 215 the report

was to be submitted within a month.

It was after more than a year i.e. on August 18,

1958,

that the petitioner received a notice to show

cause

why appropriate action should not be taken

against him for the breach of privilege. This showed

malice on

the part of the

Privileges Committee.

The action of the Privileges Committee raised con­

.stitutional points affecting the petitioners' fundamental

right of freedom of expression.

The Legislature cannot have such a privilege as

will deprive the citizens of their fundamental rights

which are guaranteed by the Constitution, specially

the right of freedom of expression under Art. 19(1) (a).

In the actual motion the charge was that the speech

was published in its entirety, "Jyon ka Tyon"; but

the motion adopted by the Privileges Committee, the

charge against the Editor was that he published a

perverted and unfaithful report of the proceeding, and

· the expunged portions of the speech was also published

in derogation of the order of the Speaker.

[Wanchoo, J.-If the publication of expunged

portions would make a report false, how could it be

anything other than perverted and unfaithful?]

[Daphtary: It was unfaithful as it was not a true

report, as portions expunged had also been published].

The reference was not by the House but by the

Speaker. It was open to the petitioner to challenge

the procedure, as one of the grounds of his objection

(1) $.C.R. SUPREME COURT REPORTS

1

811

was that the motion was not put to vote. Important z

95s

questions arose as a result of the proceedings, dne of

them being :- Pandit

C C

"tt "d d b Ch" f M" . t M. S M. Sharma

an a· omm1 ee pres1 e over y a ie mis er v.

who has such an interest in the matter as might

1

give Shri Sri Krishna

him a real bias be deemed to be empowered to ¢arry Sinha and Others

on the investigation and recommend punishment ?

[Daphtary: I object to the use of the word' l)ias '.

It is not supported by the petition or the plea].

The allegation of mala fide is much stronger than

bias. '

[Chief Justice.-Art. 19(1) had granted fundamental

rights against law made by the State. There w11re no

fundamental rights against the Constitution itself. If

the Constitution provided that the House shall have

certain privileges then it was clear that there ctnnot

be a question of fundamental rights against the Con­

stitution. If the Constitution provided that the House

shall have the privileges that so much shall bti pub­

lished then Art. 19(1) will not prevail agains't the

Constitution].

I rely on Amendment One of the American Constitu­

tion on which the fundamental rights in Art. 19('1) are

based.

Cooley's

"Constitutional Law" (P. 350).,

Express Newspapers (Private) Ltd. v. Union of India,

[1959] S. C. R. 12, 121. '

[Sinha, J.-In America people were more forthright

in

their views and opinions and that we could have

better guidance from English precedents

than' from

American.]

Article

194 (3) which dealt with powers, privileges

and immunities of the Legislatures were subject

to the

provisions of the Constitution. Article 194(3) cannot

be

said to abridge the provisions of Art. 19(1) .which

guaranteed fundamental rights. Article 194(3) of the Constitution provided the procedure of the :$ritish

House of Commons in regard to powers, privileges and

immunities. Even then any power or privilege

1

which

militated against the fundamental rights canrnot be

deemed to be valid.

The Legislature can follow the

procedure of the British House of Commons, bht this

8l2 SUPREME OOURT REPORTS [1959] Supp.

i958 privilege of legislature cannot go contrary to the fun-

Pandil damental rights. If such a privilege is allowed, the

M. s. M. Sharma Legislature would assume sovereignty as against the

v. Constitution itself under the garb of privileges.

Shri Sri Krishna Even in England, the ban on the publication of the

Sinha and O•hm proceedings in Parliament had ceased to exist in prac­

tice

after the 16th century.

The proceedings of legislatures are open to the pub­

lic

and the citizens have a right to know whatever

happens in the House and also to know as to how any

portion of the proceedings is ordered to be expunged.

The Blitz case Gunupati Keshavram Reddy v. Nafi­

sul Hasan,

A. I. R. 1954

S. C. 636 in which the

Supreme Court ordered the release of a correspondent

who

had been arrested by the

Speaker of tho U. P.

Assembly in connection with breach of privilege. He

was not produced before the Magistrate and on Habeas

Corpus petition, he was released. Article 20 prevailed

and it was established that Art. 194(3) could not go

against Art. 20 guaranteeing a person's liberty.

[Chief Justice.-If the privileges were given by the

Constitution itself, then the question of fundamental

rights does not come at all. Article 19(1) is against

law made by the State Government. Fundamental

rights do not prevail against the Constitution. The

counsel could take the stand that Bihar Legislative

Assembly

has not got tho powers which it claims. The

question was whether the Assembly had such powers

under the Constitution].

In England there was no written constitution. The

House of

Commons had claimed the right to prohibit

publication but in fact and in actual practice never

exercised that right. The American Constitution also

granted foll freedom to publish the proceedings of the

House including the expunged portions. That being

so,

it was for the

Court to interpret Art. 194(3) harmo­

niously

with Art. 19(1) and the provisions of the for­mer had to be consistent with fqndamental rights

granted under the Constitution. In England the Par­

liament is supreme and there is no written constitu­

tion,

but here the Constitution is supreme. The right

to expunge could be claimed only for the purpose of

(1) S.C.R. SUPREME COURT REPORTS 813

official record.

They could not claim a total

ptohibi- x9s

8

tion .. There was a c?mmon basis. for this in both Pandit

American and English democratic systems., The M. s. M.

511

.,,

1114

people had the right to know as to what was happen- v.

ing in the House to enable them to exercise, their Shri Sri K•ishna

franchise properly. If people have a right to see and Sinha' antJ Olhm

hear the proceedings, other people who are not able to

be in the House have a right to know through publi-

shed proceedings.

Wason v. Walter, (1868) L.

R. IV Q. B. 73, 95.

(The counsel refers to the standing orders ~n the

British House of Commons quoting May's Parliamen­

tary Practice).

Article 194(1) in

its entirety was subject to the

pro­

visions of the Constitution and under Art. 19 to the

provisions of the Constitution. If under Art.' 194(3)

the application of the House of Commons' laws pro­

vided complete immunity, then it was impossible to

continue the consistency of Art. 194(1) and Art. 194(3).

Article 194(1) provided clearly

that it was subject to

the provisions of the Constitution in the

ma~ter of

freedom of speech, etc., in the State Legislature. It was

impossible

to contend that Art. 194(3) was not

$Ubject

to the provisions of the Constitution. Under Art.

194(1)

it was made clear that a member of the House

of Legislature did not have the same immunity

as had

a member of the House of Commons who enjoyed

complete freedom

and had no restriction of whatever

sort. Here Art. 194(1) made the freedom of speech in

the House subject to the provision of the

Constitution.

[The Chief Justice.-It might be that one bf the

immunities was singled out and made subject to the

provisions of the Constitution].

Privileges

and rights of the House of

Commons

extended also to elections. The power of the House

of Commons to fix its own elections could not be

cha.llenged in a tribunal or a court. Here in India,

elections were held under a separate authoriey pro­

vided by the Constitution under Ch. XV and such

elections could be challenged and appealed

against in

the High

Court, tribunals, etc. In England, tlJ,e vali­

dity of an election was to be determined by the House

814 SUPREME COURT REPORTS [1959] Supp.

r958 of Commons itself or its tribunal. Such a privilege

could

not be claimed by a House of Legislature here.

Pandit

M. s. M. sh .. ma [The Chief Justice.-Here we had powers, privile-

v. ges and immunities which may be prescribed by law

Sh'i 5,; K•ishna by legislation under Art. 194(3) and it was Part XV

>inha and Oehm in the Constitution which provided for elections. It

showed that powers, privileges and immunities had

been separated and dealt with separately].

The whole scheme of the Constitution had to be

taken into account. The reasonable interpretation of

Art. 194(3) was that, like Art. 194(1) it was also in its

entirety made subject to the provisions of the Consti­

tution.

The next point was that the Chief Minister could

not be the Chairman of the Committee of Privileges

with quasi-judicial powers to summon witness and

demand pro<luction of evidence. In this case, the

Chief Minister had a certain interest in the matter

and this was against all principles of natural justice.

[The Chief Justice.-,Vhether Counsel claimed that

the Chief l\Iinister could not be at all the Chairman of

the Committee or that the Chief Minister or anybody

should not be the Chairman or in the Committee if he

had an interest].

I

put it on the ground of interest only.

Voting took

pl.ice in the Committee and if.the Chief Minister had

not been there, there might be a tie. (Quoted Rule 62

of the Standing Orders of the Honse of Commons to

show

that the

Chief .l\Iinister could not be the Chair­

man of the Committee of Privileges).

I will now deal with and challenge the procedural

aspect of the matter. It was the House alone which

had a right to refer the matter of breach of privilege.

Rule 207 of the Assembly clearly laid down that the

matter must be of recent occurrence. In the Honse

of Commons, it was accepted that " recent occur­

rence" could not go beyond ten days.

The privilege motion got precedence over even

adjournment motions. Then under r. 215, no time

limit was fixed by the House for the report to be sub­

mitted, as such the report was to be submitted within

(1) S.C.R. SUPREME COURT REPORTS 815

a month. The House had not extended the date for

the submission of the Report by the Privileges Com-

mittee and in the absence of such extension, the refer- Pandit

ence not being reported, the Committee became M s

111

• Sht .. ma

"functus officio". It was against this that the peti-Shri

5

,iv.Krishna

tioner sought to move the Honourable Court for pro-Sinha and Others

hibition of the proceedings against him and for the

vindication of his fundamental rights. Either the

Committee had become "functus officio" or the non-

submission of

the report within the

stipulated time

under r. 215 first proviso could only mean thfl,t the

Committee had nothing to recommend. Reg~rding

the procedure adopted, Rules 208 and 209 had1to be

taken together. There were objections to the motion

at the time it was moved. The publication of!), true

and full account could not be termed unfaithful and

perverted. It was for the court to determine whether

there has been a breach of privilege committed.

[Sinha, J.-Is it our jurisdiction? Is it not the ex­

clusive function of the Parliament?]

[The Chief Justice.-What was a privilege and what

was not could be stated but whether there was a

breach of privilege or not it was for the House to

say].

There was no breach of privilege. What we are

claiming is that the reporting of proceedings is :not a

privilege

the House can claim. Then my other point

is

that I

have not published the expunged portipn.

[Daphtary, Solicitor-General: It is for the House to

decide].

Am I not entitled to come to this

Court as custo­

dian of my fundamental rights, that powers are

claiming to punish

and proceed against me and

coerce

rue ? The question was whether one was not

entitled to bring a petition under Art. 32 against it?

0. K. Daphtary, Solicitor-General for India, B. K. P.

Sinha and S. P. Varma, for the respondents. The

question to be considered is how much of the portion

which contained all

the allegations fell under Art. 32.

The Article could deal only with breach of

fundlfl,men­

tal rights. If any of the powers or exercise <:>f the

I

I

Pandit

M.S M. Sharma

v

Shri Sri /(rishna

Sinha

'nd Others

816 SUPREME COURT REPORTS [1959] Supp.

powers and privileges and the defence and assertion of

any of the imi;nunities involved, were a breach of fun­

damental rights or were something contrary to funda­

mental rights, even then the powers and the privileges

were good.

They could not be considered bad as

offending those rights. It was not open for someone

to come and say that there was no such power and

immunity when such powers and immunities were

provided under Art. 194(1) and was made part of the Constitution. Every citizen had been given the right

of freedom of speech by the Constitution. A member

of the House of a Legislature also enjoys that freedom

by virtue of being a citizen. Only rules and regula­

tions made in excess of legislative powers could be

questioned

and not the powers themselves. Then

there was the question of amendment of the

Constitu­

tion which was not affected by fundamental rights.

The result would be that by amendments of the Con­

stitution fundamental rights could be modified or re­

moved. That was what was done by amendments in

Arts. 3l(a) and 3l(b) where the rights were modified.

Article 194

was.put there in the Constitution by the

framers simultaneously with other provisions. It

there­

fore had an equal footing with other provisions of the

Constitution and unless expressly stated in the provi­

sion itself could not be made subject to other provi­

sions of the Constitution. All parts of the Constitution

were made by the same people and were equal. One

could not be made more important than the other.

[Subba Rao, J.-What was the idea then in giving

a

paramount position to fundamental rights in our

Constitution ?]

They are fundamental to human beings.

[Subba Rao, J.-If the legislature had made a law

defining its powers and privileges, could that law be

valid if it infringed the fundamental right.s ?]

The Constitution itself said that powers, privileges

and immunities would be such as the Legislature

would lay down. Even such a law would not be

against the fundamental rights. It would be in

ex­

ercise of the constituent law. The Constitution makers

(l)S.C.R. SUPREME COURT REPORTS 817

thought it best that they would not define the powers z958

of tbe Legislature and left to the Legislature to decide .

what powers it will have. . Pandtt

[Subba Rao, J.-When a law was made by the M.

5

M. Sharma

Legislature it was subject to fundamental rights under snri s,:·Krisnna

Art. 19 but when the Legislature made laws relating Sinna and Others

to its powers, etc., it was not subject to Art. 19. Was

that not an anomalous situation ?]

There was no anomaly' at all. The Constitution

makers themselves had said what powers andJrivile­

ges of the Legislature were. When it was so ade as

a law by

virtue of powers granted by the Constitution

then it could not be subject to fundamental rights.

That what the Constitution itself had chosen to give

was subject

to fundamental rights

was not a sound

argument.

[Bhagwati, J.-The fundamental rights

we11e on a

high pedestal and any other provisions should not

infringe them].

What was constitutional was constitutional. Unless

there w~re provisions made expressly subject to other

provision or provisions they had all the same footing

and were on the same plane. Wherever the CQnstitu­

tion makers wanted to say it, they said so. 'l'h~y were

otherwise independent

of each other, unless

stated to

the contrary. No part of the Constitution could be said

to be void and if one part was struck down then it

would mean that the Constitution itself was being

struck down. Article

194 had to be given the status

of Constitution law.

The

first point was that powers, privileges and im­

munities given by Art. 194(3), were not subject to

Art. 19. Having established that, the second point

that would arise would be what were those powers and

privileges. What was the ambit of those powers.

In England there were instances to show t~at bre­

ach of privilege was treated as contempt of the! House,

disobedience

of the

Speaker's order was co)ltempt.

(Refers

to the standing order 62 of the House of

Commons).

103

Pandit

M. S. M. Sharma

v

ShN Sri Krishna

Sinha and Others

818 SUPREME COURT REPORTS [1959] Snpp.

The argument advanced by the other side was

fallacious.

[Quotes from May's

Parliamentary Practice].

Standing order 62 did

not apply to the Committee of

Privileges. It applied to select committees and

stand­

ing committees but not to the Committee of Privileges,

which was a sessional committee appointed at the

beginning of each session. The House of Commons

had powers to make rules from time to time and regu­

late its own procedure. All that the court had to

satisfy itself about was whether or not the House had

the power to follow up a breach of privileges.

[Bhagwati, J.-Whether power to make rules had

not been within limits. In an effort to protect im­

munities and privileges one could not expand the pri­

vileges and immunities].

All the precedents of the House of Commons were

not available dating back to 16th or 17th Century but

there was enough in l\Iay's Parliamentary Pra.ctice _to

support the argument. So long as the debates were

correctly

and faithfully reported the right to prevent

publication was

not enforced. Journalists were

pre­

sent in the House galleries by the leave and licence of

House and on sufferance. What the Speaker said

was

not to be published, it could not be published.

[Subba Rao, J.-What was the purpose of expunging a portion of the proceedings?]

The expunged portion was not deemed to have been

stated in the House. There was the case in the House

of Lords where an expunged portion was published

and became breach of privilege. The privilege of the

House

to control publication was always there though

it might not be exercised. The House,

was always

zealous

of its privileges. Even here in India, House

privilege

had been asserted at the time when Mr.

Vithalbhai Pa.tel was President of the Assembly. There

was

heated debate on

the question as to in whom did

the control of the precinct of the House vest, the

Viceroy or the President of the Assembly. Mr. Patel

to assert the Privilege of the House· asked the galleries

to be cleared. Privileize was not ordinarily exercised

if the report was faithful and accurate. But it was

(1) S.C.R. SUPREME COURT REPORTS 819

necessary in order to ensure if the member could say z958

things without fear of being misreported. Otherwise

Pandit

his freedom of speech was affected. M. s M. Sharma

It was the power and privilege of the House ofi Com- v

mons to decide what was a breach or not. The courts Shri Sri Krishna

could go to the extent to find whether a particular Sinha and Others

privilege existed. :

[The Chief Justice: If the privilege claimed was

excessive would

it not affect fundamental rights?]

It depended on the

wording of the notice. ln the

present case

the motior. and Committee's notice had

to be read together. It would not he correct to give

fundamental rights

paramountcy over other

Ptrts of

the Constitution. '

With reference to the allegations of 'mala fide'.

What was the ' mala fide ' ? Who could deny it ¢xcept

the secretary as the ' mala tides' charge was levelled

against the Committee of Privileges ?

[Sinha, J.-Including the Chief Minister]. i

" Mala Fides " was alleged against the Committee.

[Sinha, J.-The petition says that the committee is

influenced by

the Chairman].

It is not so. I will confine myself to the petition

which says

that the Committee of Privileges is

pro­

ceeding against the petitioner 'ma.la fide ' in or~er to

muzzle him and restrict him from expressing his

views.

The

Chief Minister was the Chairman of the Com­

mittee: There was nothing to show nor was it claimed

that the member of the Committee were all his party­

men. There were members of other parties. It was

not alleged otherwise. It could not also be sai~ that

the members of the Committee were all his adherents.

In the circumstances, what else could be done except

for

the Secretary to deny the allegations of

'mala. fide'

which was levelled against

the committee appointed

by the Speaker and the

Chief Minister was Cha~rman

from long before the matter under consideratio:q was

taken up.

[The Chief Justice.-Wbat about the time lag? No

step wa.s ta.ken for one whole year a.nd the a.lle~a.tian

820 SUPREME COURT REPORTS (1959] Supp.

z958 • is that, when some articles were published, the matter

. was taken up].

Pan~~ The action was taken after some time to enable the

M. s. M. "'""' party to correct itself. .

Shri SrivK•ishna Sinha, J.-The point raised was that the Com­

Sinha and Others mittee did not do anything for one year and then woke

up one morning

and then pressed the matter].

How is

the matter carried any further by these

arguments. Ultimately

the House would judge and it

was composed of 316 members. Where was the

ques­

tion of ' ma.la fide ' ? No one in the House opposed

the motion. Where was the malice of the Committee;

whether

it issued the notice immediately or after some

time?

[Sinha, J.-The argument of the petitioner's

Coun­

sel was that the House should have been presumed to

have dropped the matter as the House had not done

anything at all for one year and all of a sudden the

matter was taken up. The point made out was that

but for the petitioner's subsequent action, no notice

would

have been issued by the Committee].

They

'had issued the notice stating that there was a.

breach of privilege.

[Sinha, J.-Had not the Committee become •functus

officio' by lapse of time ?]

No, the Committee had the power to launch the

prosecution.

It did not do it immediately. It waited for three

or four months.

[Sinha, J.-The very essence of these proceedings

which

are of a summary character is that the matter

should be expeditiously dealt with].

Is it not

a. matter of internal management ? The

House

had decided something and it was for the

Committee to take some action.

The House did

not rescind the decision.

With reference to the claim that rules ha.d not been

followed :

the standing

Order 62 of the House of Com­

mons did not apply to the Privili>ges Committee which

was a sessional committee.

Then there was rule 215

a.bout

the time limit. What was it that the House

ha.d done? It appointed one of its committees to

(1) S.C.H.. SUPREME COURT REPORTS ! 821

inquire and submit its report within a period. The

House could say that it could extend the time and Pandit

enlarge the scope of time limit.

1 .w. s. M.Sharma

[The Chief Justice.-But as long as the rule stands v •

• • • • • • • • • • • • ]. Shri Sri Krishna

The nature of the rule had to be gone into. It wa.s Sinha and Others

something fixed by the House for the guidance of the

Committee. The rules were made for the benefit <1>fthe

House. It was a matter for themselves, not for the

benefit of an outsider t.o seek to enforce it.

On the subject of m<tlice, if something was lawful it

did not matter how much malice there was

1

the

motive

of malice could not make unlawful whatl was

otherwise lawful.

Malice imputed was

that the

Chief Minister was the

Chairman of the Committee. He might not be there.

The Speaker might appoint some one else. How can

then one presume that the committee would act

maliciously ? There were responsible persons holding

responsible positions.

H. N. Sanyal, Ad,ditional Solicitor-General of .india,

for the Attorney-General for India, cited the powers of

the legislature of Nova Scotia and the position there,

summed up

the law relating to powers and privileges.

Basdeva Prasad, in reply. The main fact to be

borne in mind is

that the Parliament or the

Legisla­

ture in India was not really as sovereign as the

British Parliament which was supreme in all m11-tters.

Article 194(1) is not a. repetition of Art. 19(l)(a), but

an abridgement of the freedom of expressioq and

speech which would have otherwise been available to

the members of the legislature as ordinary citizens.

Article 194(3) itself does

not provide a

constitu­

tional exemption to the freedom guaranteed under

Art. 19(l)(a) and Art. 194(3) is subject to the provi­

sions of the Constitution in Part III and the other

Art. 21.

Article 194(3) does

not import into the Indian

Con­

stitution the powers, privileges and immunities in

their entirety, a.s for instance the right to prohibit

publication altogether could not be imported.

822 SUPREME COURT REPORTS [1959j Supp.

,958 It had already been ma.de clear that Art. 194(1) was

P ~· subject to the provisions of the Constitution. The

M s. ~~ ;~ ,,,. point was that Art. 194(3) in its entirety was subject

• v. • • to the Constitution. Article 32 itself was very signifi-

Shri s,; Krishna cant as to what rights and powers of Part III were

Sinha and Othm more important. Writs could be issued for breach of

fundamental rights or other violation of rights, includ­

ing powers of taxation.

Therefore, Art. 194

did not enlarge but it abridged

the scope of application of Art. 19(l)(a}, since it was also ma.de subject to the rules and standing orders

that might be ma.de by the House.

[The Ohief Justice.-Whether Parliament could not

under the residuary powers of legislation, make a law

imposing restrictions on

the freedom of speech of

mem­

bers of the State Legislature. It was pointed that

Art. 19(1) was a primary right; Art. 19(2) cut it to

some extent; Art. 194(1) also ma.de it subject to the

provisions of the Constitution but the freedom of speech

was further restricted. The Constitution itself a ppea.r·

ed to provide those limitations. Would not then Art.

194(1)

read with Art. 19(1) equally lead to an anomaly?] Article 194(2) fl.owed from Art. 194(1). If Art: 194

imported powers, privileges and immunities wholesale

from

the House of

Commons of Great Britain, how

could they be exercised ? There was Art. 208. Any

other form of restriction arising from the exercise of

those powers would be unreasonable restriction.

What Art. 194 gave powers, privileges and immuni­

ties. Article 208 gave the power to punish, subject to

the provisions of the Constitution. It could not be said

that the British House of Commons had the power to

punish a man twice. A man could not be held guilty

of privilege by an ordinary court of law and at the

same time by the House of Commons. But here

Art. 208 and Art. 194 came to be subject to Art. 21 in

that no one could be deprived of personal liberty with­

out a procedure of law.

[The Chief Justice.-But then you have not come

to the stage of Art. 21 at all. Your liberty has not

been ta.ken a.way].

•

(1) S.C.R. SUPREME COURT REPORTS 823

I

My liberty is threatened. The notice says there is a. 1958

' prima facie ' case. Then there is the allegation of .

rnala fide

and bias. I r.efer t.o

~he claim of the House M. s~~~~~~"'"'a

to be the sole Judge of its privileges. I say that they v.

must be subject at least to constitutional rights, Shri Sri Krishna

[The Chief Ju8tice.-If Art. 194(3) incorporated a.II Sinha and OtMrs

the privileges, then could not that privilege itself be

taken as'procednre established by law?] ·

Article 21 never contemplated that there wo!lld be

no procedure. Supposing none

of them was

followed

and a warrant was issued, could not that be question­

ed in a court of law ?

[The ChiefJustice.-If the man is arrested then we

shall consider].

It

would then be subject to the jurisdiction ~f their

Lordships. Article 21 guaranteed that there would be

no interference with

the personal liberty of the citizen

except according

to a procedure enacled by law. There

must be a substantive law and such law must be

valid.

I

-If your Lordships hold with me that fundamental

rights were superior,

then Art. 194 would have to be

read with Art.

19(1) and the American position would

help.

If the House was the sole Judge then neither

Art. 21 nor Art. 22 would be

available.

[The Chief Justice.-If one could publish anything

that was said in the House there would be no meaning

in expunging. Being expunged, meant it was not

said].

Yes,

but will not the House take notice?

I~ is the

right of the people to know what had been salid and

what was expunged. Expunction would be for the

purposes of official record. Even in ' Hansard ', the

expunged portion is not removed but only red lines

put over it.

[Sinha, J.-The argument advanced wa$ that

under the language of Art. !94(2) you could not publish

anything at all].

Yet,

if the claim of total prohibition was accepted,

then I would

be on velvet. But would that

ppsition

be allowed in India ? The House of Commons debated

,.

.--··

824 SUPREME COURT REPORTS (1959] Supp.

z95B in the.Public, and I have a right to publish what takes

Pandit place.

M.s M.Sharma [Sinha, J.-You claim a total right to publish].

v. Yes, total right to publish whatever takes place in

Sh•i Sri f(,ishna the House. I will not cl!J,im I have a right to publish

Sinha and Othm gar~led and unfaithful report. I have a right to publish

a faithful report of what was said or done. The argu­

ment of the learned Solicitor-General was that

Art. 194(3) was not subject to the provisions of the

Constitution. In the Constitution, the power was given

to the President t.o make all laws and regulations in

Part D St.ates and the provision did not say ' subject

to fundamental rights'. Could the Prrsident make

laws

that would have the effect of taking away

funda­

mental rights or that it was said that citizens in Part

D states did not have any fundamental rights? All

the provisions of the Constitution had to be read in

relation to the chapter on fundamental rights.

In the absence of law, the power to make rules

could come in conflict with fundamental righfs. Law

could mean a power or authority.

[Subba Rao, J.-Under Art. 194(3), the legislature of

a State had all the powers, privileges and immunities

of the House of Commons. One of such powers was

to prevent publication of a garbled version. If in

exercise

of that power, the legislature made .an order

asking someone to appear

A.t its bar, would that order

come within the meaning of law ?] ·

"Law included order, regulation or notification."

[The Chief Justice.-What is the meaning of an

order? Does it mean an executive order ?]

It is an executive order. Order flowing from public

authority. The definition of the State included Govern­

ment, Parliament, Legislature and local authority. It

would be an order passed by authority. Article 21

would cover acts under the enacted law. Here, a

Committee of the House was proceeding to take action

to deprive the petitioner of his personal liberty. What

was the remedy? What could be the procedure ?

[The Chief Justice.-It would be argued that the

Constitution itself was law. It need not be enacted by

. (I) S.C.R. SUPREME COU~T REPORTS 825

the Legislature. If Art. 194 imported all the privileges 1958

of the House of Commons, then no question arose at .

all.

That itself prescribed the powers and privileges].

M.s~;~~ar~

[Subba Rao, J.-If in exercise of such a power an v.

order was made by the legislature, would it not be law S~ri Sri Krislina

within the meaning of its definition in the Consti-SJnliti """ Olliers

tution ?]

Executive order will be included in the expression

"law".

[Subba Rao, J.-If an order, which would be law as

thus defined, be made, would it be valid if it infringed

the fundamental rights?]

[The Chief Justice.-The State could make a law

relating

to contempt of

Court. Supposing the St.ate

did not make such a law, the Court could still haul up

people for contempt.

Was not there inherent power?]

The High

Courts had the power to punish. But the

question of punitive punishµient would arise.

[The Chief Justice.-Fundamental rights were

fundamental in

the sense that human rights which

were valuable were fundamental. The

other provisions

of the Constitution could be equally efficacious].

My

point was that any law or action had to be

within

the constitutional rights guaranteed by the

Constitution.

Even the right to punish would have

to be within the ambit of the fundamental rights

chapter.

If anyone was committed for contempt of

court which

was not fully established, could he not

seek redress ? Justice was not a cloistered virtue. Could

he not then claim a remedy under the ordinary law ?

· [Subba Rao, J.-A law made by the Legislature in

respect

of privileges would be subject to fundamental

rights.

If the law was not made, the

privileges were

not subject to fundamental rights].

[Sinha, J.-This will be a good reason for the

Legislature not to make law at all].

Article

194(3) had to be interpreted as coming within

the scope of fundamental rights. The first part was

admittedly so.

The second part was equally subject

to the fundamental rights by the very necessary

implication.

104

Pandit

M.S.M.Sharma

•.

Shfi SJ'i Kl'ishna

Sinha and

OlhlfS

826 SUPREME COURT REPORTS [1959) Supp.

Privileges did come within judicial review. They

could go into the nature of privilege and on the given

facts decide their constitutional validity.

Our. Adv. Vult .

1958. December 12. The Judgment of Das, C. J.,

Bhagwati, Sinha and Wanchoo, JJ., was delivered by

Das, C. J. Sribba Rao, J., delivered a separate Judg­

ment.

DAS, C. J.-The p~titioner before us, who is a citi­

zen of India, is by profession a journalist and bas at

all material times been and is still working as the

editor of the Searchlight, one of the well-known

English daily newspapers having a large circulation

in

Patna and other places in the

State of Bihar. The

first respondent has at all material times been and is

the Chief Minister of the State of Bihar and the

Chairman of the Committee of Privileges of the Bihar

Legislative Assembly. The Committee of Privileges

has been impleadecl as the second respondent as if it is

a. legal entity entitled to sue or to be sued in its name.

The

third respondent is called and described as the Secretary to the Bihar Legislative Assembly as if it

also is a legal entity but the incumbent of that office

ha~ not been named in the rause title. As r,o objec­

tion has been taken to the way the second and the

third respondents have been implea.ded as parties

nothing further need be said

about the propriety of

such procedure.

This petition under Art.

32 of the Constitution

raises several

important questions of far reaching

effect.

It came to be filed in the following circum-

·

stances: In his speech made in the Bihar Legislative

Assembly on May 30, 1957, in course of the general

discussion on

the Budget for the year 1957-58

Shri

Maheshwar Prasad Narayan Sinha, a Congress mem­

ber of that Assembly, delivered what has been des­

cribed as " 01ie of the bitterest attacks against the

way the Chief Minister was conducting the admini­

stration of the State", The Chief Minister, who also

belongs

to the

Congress party, is the first respondent

before us. Shri Maheshwar Prasad Narayan Sinha

(1) S.C.R. SUPREME COURT REPORTS 827

referred

to the way the

Chief Minister, according to

1958

him, was being guided by the ad vice of a gentleman P ,.,,.

who was well understood by all to be Shri Ma.hesh M s. ;. ;~a•'"•

Prasad Sinha, who was an ex-minister of Bihar a.nd · v.

had been defeated at the last general elections. The Sliri Sri Krisli""

member referred, a.s common knowledge, to the acti-s;,.Aa an4 0111m

vities of Shri Mahesh Prasad Sinha in the selection of

Ministers and the formation of the Ministry as also to

the glaring instances of encouragement of corruption

by the Government by, amongst other things, the

transfer of a Muslim District Engineer from Dar-

bhanga.

to Muzaffarpur for exploiting that officer's

influence on

the Muslim voters of Muza.ffarpur. Simi-

lar reference was made to the case of a District and

Sessions Judge who, notwithstanding the recommen-

dation for his discharge made

by the

Chief Justice

after a regular judicial enquiry had been held by a.

High Court Judge, was ordered only to be transfer.red

to another place on the intervention of Shri Mahesh

Prasad Sinha. The member strongly criticised the

appointment of Shri Mahesh Prasad Sinha as the

Chairman of the Bihar State Kha.di Boa.rd as having

been made only to enable him to stay in Patna where

residential accommodation

at Bailey Road had been

procured for him.

The distribution of portfolios

amongst the ministers did not also escape strictures

from

this member. There is no dispute-indeed it is

admitted in paragraph 6 of the present petition-that

immediately after Shri Maheshwar Prasad Narayan

Sinha referred to.the question of appointment of the

Chairman of the Khadi Board, a point of order was

raised

by another member of the Assembly, Shri

Satendra

Na.rain Agarwal, and the Speaker stated as

follows:-

" Mahesh Babu ke Sambandh Me Jitni Baten Ka.hi

Gain Uske Bare Me Maine Kah Diya Ki Us Tarah Ki

Bat Ko Proceeding Se Nikal Diya.Jayega Lekin State

Kha.di Board Ke Chairman Ke Bare Me Jo Kuch

Kahenge We Karyawahi Me Ra.henge or Iske Bishai

Me Manniya Sa.dasya Ko Ka.bane Ka Rak Hai. "

which translated into English means roughly:-

"I have already ruled with reference to whatever

has been said a.bout Mahesh Babu that such word!I

828 SUPREME COURT REPORTS [1959] Supp.

z

9ss would be expunged from the proceedings but that

whatever may be said with reference to the Chair-

Pandil manship of the State Khadi Board will remain in the

M. s. M. Sharma proceedings and the Hon'ble member has the right to

Shri s,;-Krishna speak on that matter. "

Sinha and Olhm In its issue of May 31, 1957, the Searchlight publish­

ed a report of the speech of Shri Maheshwar Prasad

Narayan Sinha which is set out in paragraph 2 of the

petition and also reproduced in what has been called

"annexure B" in annexure III to the petition. It

will suffice, for the purposes of our decision of this

petition, to set out the opening part of the report

which reads as follows:-

"BITTEREST ATTACK ON CHIEF MINISTER

M. P. Sinha's choice as .Khadi Board chief con­

demned.

Maheswar

Babu's scathing criticism of

Govern­

ment.

(By our Assembly Reporter)

Patna, Ma.y 30.

One of the bitterest attacks against the way the

Chief Minister was conducting the administration of

the State was made in the Bihar Assembly today by

Mr. Maheshwar Prasad Narayan Singh, a Congress

member who said that contrary to all principles of

good Government, the Chief Minister was guided by

the advice of a gentleman who had been defeated at

the election and stood condemned before the bar of

public opinion. He also named the gentleman by

whose advice the Chief Minister was allegedly running

the administration.

In this sixty-minute speech which was punctuated

with frequent applause by Congress as well as Opposi­

tion benches, Mr. M. P. N. Singh said that corruption

(l) S.C.R. SUPREME COURT REPORTS 829

could not be eradicated from Government unless the

Chief Minister refused to be influenced by such undesir­

able elements.

Pattdit

M. S. M. SlumltO

He said it was common knowledge that during the . ~· .

period of

the formation of the new ministry which

Sltn Sn Kmlt,..

took unduly long time many aspirants for Ministership Sitt/ta attd oiws

and Deputy Ministership went to a. defeated Minister

for plea.ding their case so

that the defeated Minister

concerned could influence

the Chief Minister."

It has not been denied by the learned advocate for

the petitioner that the references to the gentleman

who ha.d been defeated a.t the election and was said

to have stood condemned and by whose advice the

Chief Minister (respondent 1) was alleged to be guided,

were intended to be

and were understood by the public

to be references to

Shri Ma.hash Prasad Sinha., all refer­

ences to whom had, as hereinbefore mentioned, been

directed

by the

Speaker to be expunged from the pro­

ceedings.

On June 10, 1957, one Shri Na.wa.l Kishore Sinha, a

meplber

of

the Biha.r Legislative Assembly, gave notice

to the Secretary, Bihar Legislative Assembly (respon­

dent 3) that he wanted to raise a question of the

breach of privilege of the House. That notice wa.s in

the following terms :-

"To

Sir,

The Secreta.ry,

Bihar Legislative Assembly,

Patna.

The 10th June, 1957.

I give notice

that I want to raise the following

question involving

a breach of privilege of the House,

after question hour today.

" That the Hon'ble Speaker ordered that all refer­

ences regarding Shri Ma.hash Prasad Sinha, Ex-Indus­

try Minister, made in the speech of Shri Ma.heshwa.r

Prasad Narain Sinha on the 30th May, 1957, except

that of his appointment as the Chairman of the Kha.di

830 SUPREME COURT REPORTS [1959] Supp.

1

95

8

Boa.rd, be expunged but in spite of this the "Sea.rch-

P d"I light", a. local daily, published the entire speech of Shri

M.s.:..~"••ma Maheshwar Prasad Narayan Sinha, containing all

v. references to Shri Mahesh Prasad Sinha which were

Shri 5,; Krish100 ordered to be expunged. Hence there has been a

Sillil• ••d 01hm breach of the privilege of the House. A copy of the

"Searchlight", dated the 31st of May, is filed here­

with.

Yours faithfully,

Nawal Kishore Sinha, M.L.A."

An account of the proceedings that took place in the

House on June IO, 1957, appears from" annexure D"

in annexure III to the petition. It will appear from

that account that after Shri Nawal Kishore Sinha had

asked for leave to move his motion, the Speaker read

out to the members the relevant rule as to the proce­

dure that has to be followed when, on·such leave being

asked for, an objection is or is not taken. Thereafter,

as no objection was raised in accordance with that

rule, the Speaker declared that the mover had received

the permission of the House to move his motion. One

Shri Karpuri Thakur having remarked that he could

express

no view without knowing what had been

print­

ed and what had been directed not to be printed; the

Speaker read out the text of the notice sent in by

Shri N awal Kishore Sinha set out above which referred

to the issue of the Searchlight in question. AsShriKar­

puri Thakur w<>s apparently satisfied by this, the

Speaker then requested Shri Nawal Kishore Sinha to

move his resolution. The account shows that Shri

Nawal Kishore Sinha then said-" Sir, I beg to move:

that the matter be referred to the Privilege Committee

of the House". No amendment having been moved,

the Speaker, according to the report of the proceedings

set forth in " annexure D ", put the question to the

House

and, nobody objecting to the same, declared the

resolution carried.

It appears that the Committee of Privileges

(respon­

dent 2) did not take np the consideration of the matter

promptly and while the matter was pending before the

(I) S.C.R. SUPREME COURT REPORTS 831

Committee sharp exchanges of charges and counter z958

charges took place between the petitioner and the

b h

Pundit

Chief Minister (respondent l) as are evidenced y t e

f M

M. S M. Sharma

extracts from the issues of the Searchlight o ay 27, v

28 and 31, 1958. There appears to have been a debate ShtiSti /(rishna

on June 5, 1958, for two hours in the Bihar Legislative Si""" afld Othm

Assembly on the alleged faUure of the State Govern-

ment to protect the petitioner from being assaulted by

goondas.

It is said that these exchanges roused the

Committee of Privileges from slumber into activity on

August

IO, 1958, when it passed a resolution which,

according

to annexure II to the petition, ran as

follows·-

" The question is that Shri M. S. M. Sharma,

Editor and Shri Awadhesh Kumar Tiwari, Printer and

Publisher

of t.he

"Searchlight" be called upon to

show cause why appropriate action be not taken

against them by reason of the commission of a breach

of privilege in respect of the Speaker of the Bihar

Legislative Assembly and the Assembly itself by

publishing a perverted and unfaithful report of the

proceedings

of the Assembly relating to the speech of

Shri Maheswar Prasad Narain Sinha,

l\LL.A., ex­

punged portions of whose speech were also published

in derogation to

the orders of the Speaker passed in

the House on the

30th May, 1957, and that they be

further directed to be in attendance at the meeting or

meetings

of the Committee on such date or dates as

may be fixed by the

Committee for consideration of

the case against them."

On August 18, 1958, the petitioner was served with

a notice dated August 14, 1958, issued by respondent 3,

the Secretary to the Bihar Legislative Assembly,

calling upon

the petitioner to show cause, on or before

September

8, 1958, why appropriate action should not

be recommended against him for breach of privilege

of the

Speaker and the Assembly in respect of the

offending publication. It is necessary, in view of one

of the points taken by the learned advocate for the

petitioner, to set ont the full text of this notice which

was

thus worded :-

832 SUPREME COURT REPORTS [1959] Supp.

z958 " Government of Bihar,

'

Pandit Legislative Assembly Secretariat ..

M. S M. Sharma

v.

Shri Sri Krishna Confidential No. 3538.IA.

Sinha and Others

From

Shri Enayetur Rahman, B.A., B.L.,

Secretarf to the Legislative Assembly.

To

Shri M. S. M. Sharma,

Editor, "The Searchlight",

Searchlight Press, Patna.

Patna, August 13/14, 1958.

Whereas a question involving breach

of privilege

of the Bihar Legislative Assembly arising out of the

publication of a news item in the

Searchlight, dated

the 31st May, 1957, under the caption "Bitterest

attack on Chief Minister", was raised in the Assembly

by Shri Nawal Kishore Sinha, M. L. A. (Patna) on

the 10th June, 1957, and whereas the same, having

been referred to the Committee of Privileges for

examination, investigation

and report, was considered

by the Committee which has been pleased to find

a

prima facie case of breach of privilege made out

against you.

You are hereby directed to show cause, if any, on

or before the 8th September, 1958, why appropriate

action ,should not be recommended against you for

breach

of privilege of the

Speaker and the Assembly.

Please also

take notice that the question will come up

for examination by the Committee on the 8th

Septem­

her, 1958, at 11 am. in the Official Sitting Room

(Ground Floor) of the Assembly Buildings, Patna, and

thereafter on such day or days and at such time and

(1) S.C.R. SUPREME COURT REPORTS 833

place as the Committee may from time to time ap- 1958

point. You are also informed that if the matter comes

to evidence, you can,

if you so choose, adduce evi-

Pandit

dence, both oral and documentary, relevant to the M. s. M. Sl•arma

issue, and you must come prepared with the same on Shri sr;-Krishna

the date fixed in this behalf. Sinha and Olhm

Sd. Enayetur Rehman,

Secretary to the Legislative Assembly."

Finding that_things had begun to move and appre­

hending an adverse outcome of the enquiry to be held

by

the Committee of Privileges (respondent 2), the

petitioner moved the High

Court at Patna under

Art. 226 for an appropriate writ;, order or direction

restraining

and prohibiting the respondents from

pro­

ceeding further with the enquiry referred to above.

It appears that on August 29, 1958, the Art. 226 peti­

tion came up for preliminary hearing and after it

had been urged for a day and a half before the-High

Court for . admission, the petitioner on September 1,

1958, withdrew

that petition allegedly

" with a view

to

avail the fundamental rights granted to him under

Art. 32

of the

Constitution."

The present petition under Art. 32 of the Constitu­

tion was filed on September 5, 1958. The petitioner

contends

that the said notice and the proposed action

by

the Committee of Privileges (respondent 2)

are in

violation

of the petitioner's fundamental rights to

freedom

of speech and expression under Art. 19(l)(a)

and to the protection of his personal liberty under

Art. 21 and the petitioner claims by this petition to

enforce those fundamental rights.

An affidavit in opposition a.ffirmed by Shri Enaya­

tur Rahman, the present incumbent of the office of

respondent 3, has been filed on behalf of the respon­

dents wherein it is maintained that the report con­

tained in the offending publication was not in accord­

ance with the authorised report of the proceedings in

the House in that it contained even those remarks

which, having been, by order of the Speaker, directed

tlo be expunged, did not form part of the proceedings.

105

Das C.f.

834 SUPREME COURT REPORTS [1959] Supp.

'95

8

It is claimed that generally speaking proceedings in

Pandit the House are not in the ordinary course of business

M. s. M. Sh•,.•• meant to be published at all and t.hat under no cir-

v. cumstances is it permissible to publish the parts of

s~ri Sri Kri•h•a speeches which had been directed to be expunged and

S•nha and Others consequently were not contained in the official report.

-Such publication is said to be a clear breach of the

Da. C.].

privilege of the Legislative Assembly, which is entitl-

ed

to protect itself by calling the offender to book and,

if necessary, by meting out suitable punishment to

him.

This claim is sought to be founded on the

pro­

visions of cl. (3) of Art. 194 which confers on it all the

powers, privileges and immunities enjoyed by the

House of Commons of the British Parliament at the

commencement

of our Constitution.

Lea.rued advocate for

the petitioner relies upon

Art. 19(l)(a)

and contends that the petitioner, as a

citizen

of India, has the right to freedom of speech

and expression and that,

as an editor of a newspaper,

he is entitled to all the benefits of freedom of the

Press. It is, therefore, necessary to examine the

ambit and scope of liberty of the Press generally and

under our Constitution in particular.

In England freedom of speech and liberty of the

Press have been secured after a very bitter struggle

between

the public and the

Crown. A short but lucid

account

of that struggle will be found narrated in the

Constitutional History of England by

Sir Thomas

Erskine May (Lord Farnborough), Vol. II, ch. IX

under the heading " Liberty of Opinion ". In the

beginning the Church is said to have persecuted the

freedom of thought in religion and then the State

suppressed it in politics. Matters assumed importance

when the art of printing came to be developed. The

Press was subjected to a rigorous censorship. Nothing

could be published

without the imprimatur of the

licenser and the publication of unlicensed works was

visited with severe punishments.

"Political discus­

sion was silenced by the licenser, the Star Chamber,

the dungeon, the pillory, mutilation and branding."

Even in the reign of Queen Elizabeth printing was

interdicted

save in London,

Oxford and Cambridge.

" Nothing marked more deeply the tyrannical spirit

(1) S.C.R. SUPREME COURT REPORTS 835

of the first two Stul!orts than their barbarous persecu- I95

8

tions of authors, printers and the importers of pro- P d.

hibited books : nothing illustrated more signally the M. s. ~."s~a'"'"

love of freedom than the heroic courage and constancy v.

with which those persecutions were borne " (1 ). There Shri Sri J< rishHa

was no mention of freedom of speech or of liberty of Sinha and Othm

the Press in the Petition of Rights of 1628. The fall

of the Star Chamber augured well for the liberty of

the Press, but the respite was short lived, for the

Restoration brought renewed trials upon the Press.

The Licensing Act

(13 & 14

Ohs. 11 c. 33) placed the

entire control of the Press in the Government. Liberty

of

the Press

was interdicted and even news could not

be published without licence. 'fhen came the Revolu-

tion

of 1688; but even in the Bill of Rights of 1688

there

was no mention of freedom of speech or of liberty

of the Press. In 1695, however, the Commons refus-

ed to renew

the Licensing Act and t.he lapse of that

Act marked the triumph of the

Pr<>sH, for t.henceforth

the theory of free Press was recognised and every

writing could be freely published, although ar the peril

of"the rigorous application of the law of libel. William

Blackstone in his

4th Book of Commentaries publish-

ed in 1769 wrote

at p. 145 :-

" The liberty of the Press is indeed essential to

the nature of a free State; but this consists in laying

no previous restraints upon publication,

and not in

freedom from censure for criminal

matter when

pub­

lished. Every free man has an undoubted right to

lay

what sentiments he pleases before the public; to

forbid this, is to destroy the freedom of the Press;

but if he publishes what is improper, mischievous or

illegal, he must take the consequences of his own

temerity."

Halam in his Constitutional History of England ex­

presses the same view by saying that liberty of the

Press consists merely in exemption from the licenser.

To the same effect are the observations

of Lord

Mansfield,

C. J., in King v. Dean of St. Asa11h (2). The

liberty of the Press, therefore, primarily consists in

{1) May's Constitutional History of England, Vol. ii, pp. 240-4r.

(2) (1784) 3 Tr •. 428.

Das C. ].

836 SUPREME COURT REPORTS [1959) Supp.

printing without any previous license subject to the

consequences of law. It is, in substance, a mere

M s 1;;"~!.,, •• application of the genera.I principle of the rule of law,

· · ~. namely, that no man is punishable except for a dis.

Shri Sri Krishna tin ct breach of the law (

1

). It was thus, as a result of

Sida ••d Others a strenuous struggle, that the British people have at

long la.st secured for themselves the greatest of their

Das c. J. liberties-the liberty of opinion.

•

In the United States of America. freedom of speech

and liberty of the Press have been separately and

specifically safeguarded in the Constitutions of most

of the different States. Portions of the Constitutions

of the 48 federating States, relevant for our purpose,

have been collected in Cooley's Constitutional Limita-

tions, Vol.

II, ch. 12, pp. 876.880. Fifteen

States,

only, namely, Ala.ha.ma., Arizona, Colorado, Idaho,

Illinois, Indiana, Kansas, Missouri, Montana, Neb.

raska., North Dakota, Oregon, South Dakota, Wash­

ington and Wyoming· do not specifically refer to

liberty

of the

Press but content themselves by provid.

ing for frlledom of speech. The Constitutions of the

rest of the federating States separately and specifi.

ca.Uy mention liberty of the Press in addition to free­

dom of speech. The first Amendment of the federal

Constitution

of the

United States, which was ratified

in 1791, provides that " Congress shall make no la.w ...

............ abridging the freedom of speech or· of the

Press". The Fifth and the Eourteenth Amendments

also protect people from being depriv~d of life, liberty

or property without due process of law.

Prior the advent of our present Constitution, there

wa.s no constitutional or statutory enunciation of the

freedom of speech of the subjects or the liberty of the

Press. Even in the famous Proclamation of Queen

Victoria made in 1858 after the British power was

firmly established

in India, there was no reference to

the freedom of speech or the liberty of the

Press, a.I.

though it wa.s announced that " none be in any wise

favoured, none molested

or disquieted by reason of

their Religious Faith or Observances; but that all

shall a.like enjoy the equal and impartial protection (1) Dicey's Law of the Constitution, 9th Edn., p. 247.

(1) S.C.R. SUPREME COURT REPORTS 837

of the Jaw; ......... " Indeed during the British period x958

of our history the Press as such had no higher or Pandit

better rights than the individual citizen. In Arnold M. s. M. 5"°'"'"

v. King Emperor (

1

)

which

wal!I a case of an appeal by v.

the editor of a newspaper against his conviction for Shri Sri Jishna

criminal libel under s. 499 of the Indian Penal Code, Si

11

ha and Othm

Lord Shaw of Dunfermline in delivering the judgment

of the Privy Council made the following observations

at p. 169 :-

" Their Lordships regret to find that there appe­

ared on the one side in this ca.se the time-worn fallacv

that some kind of privilege attaches to the profession

of the Press as distinguished from the members of the

public. The freedom of the journalist is an ordinary

part oft.he freedom of the subject, and to whatever

lengths

the subject in general may go, so also may the

journalist, but, apart from statute law, his privilege is

no

other and no higher. The responsibilities which

attach to his power in the dissemination of printed

matter may, and in the case of a conscientious

journa­

list do, make him more careful ; but the ·range of his

assertions, his criticisms, or his comments, is

as wide as, and no wider than, that of any other subject. Nu

privilege

attaches to his

position." '

Then came our Constitution on J·anuary 26, 1950. The

relevant portions of Art. 19, as it now stands and

which is relied on, are as follows:-

" 19 (1) All citizens shall have the right~­

(a) to freedom nf speech and expression;

(2) Nothing in sub-clause (a)ofclause(l)shallaffect

the operation of any existing law, or preveiit the

State from making any law, in so far as such law

imposes reasonable restrictions on the exercise

of the

right conferred by the said sub-clause in the interests

of the security of the State, friendly relations with

foreign States, public order, decency or morality, or in

relation to contempt

of court, defamation or

incite­

ment to an offence."

(1) (1914) L.R. 41 I.A. 149.

Das C. ].

838 SUPREME COURT REPORTS (1959) Supp.

1958 It will be noticed that this Article guarantees to all

citizens freedom

of speech

and expression but does not

Pandit

specifically or separately provide for liberty of the

M. S. M. ShaYma

v. Press. It has, however, been held that the liberty of

Sh•i Sri Krishna the Press is implicit in the freedom of speech and ex.

Sinha and Othm pression which is conferred on a citizen. Thus, in

Romesh Thappar v. State of Madras (

1

)

this Court

has

Das c. 1 · held that freedom of speech and expression includes

the freedom of propagation of ideas and that freedom

is ensured

by the freedom of circulation. In

Brijbhu­

shan v. The State of Delhi (') it has been laid down by

this Court that the imposition of pre-censorship on a

journal is a restriction on the liberty of the Press

which is a.n essential pa.rt of the right to freedom of

speech and expression declared by Art. 19(l)(a). To

the like effect are the observations of Bhagwati, J.,

who, in delivering the unanimous judgment of this

Court in Express Newspapers Ltd. v. Union of India(')

said at page 118 that freedom of speech and expres­

sion includes within its scope the freedom of the Press.

Two things should be noticed. A non.citizen running

a newspaper is not entitled to the fundamental right

to freedom pf speech and expression and, therefore,

cannot claim, as bis fundamental right, the benefit of

the liberty of the Press. Further, being only a right

flowing from the freedom of speech and expression, the

liberty of the Press in India stands on no higher foot­

ing than the freedom of speech and expression of a

citizen

and that no privilege attaches to the Press as

such,

that is to say, as distinct from the freedom of

the citizen. In short, as regards citizens running a

newspaper

the position under our Constitution is the

same as it was when the Judicial Committee decided

the case of Arnold v. The King Emperor(') and as

regards non-citizens

the position may even be worse.

The petitioner claims

that as

a. citizen and an editor

of a newspaper he has the absolute right, subject, of

course, to any law that may be protected by cl. (2) of

Art. 19, to publish a true and faithful report of the

publicly heard

and seen proceedings of Parliament or (1) [1950] S.C.R. 594- (2) [1950] S.C.R. 605.

(3) [1959] S.C.R. 12. (4) (1914) L.R. 41 I.A. 149.

(1) S.C.R. SUPREME COURT REPORTS 839

any State Legislature including portions of speeches '95

8

dire~ted to be expu_nged along with a note that that Pandit

portion had been directed to be so expunged. The M. s. M. Sharma

respondents before us do not contend that the petitio- v.

ner's freedom of speech and expression is confined Shri s,; £frishna

only to the publication of his own sentiments, feelings, Sinha and Others

opinions, ideas and views but does not extend to the

publication of news or of reports of proceedinO's or of

views of others or that such last mentioned 1~ublica­

tions are not covered by the interpretation put upon

the provisions of Art. 19(l)(a.) by this Court in the

three decisions referred to above or that. the case of

Srinivasa v. The Staf P of Madras (1), which apparently

supports the petitioner, was wrongly decided. For the

purposes

of this case, therefore, we are relieved of the

necessity for examining the larger questions and have

to proceed on

the footing that the freedom of speech

and expression conferred on citizens includes the right

to publish news and reports of proceedings in publie

meetings or in Parliament or State Legislatures. Tlw

respondents, however, deny that the petitioner has

the absolute right broadly formulated as hereinbefore

mentioned.

They urge, inter alia, that under Art.

194(3)

Parliament and the State Legislatures have the

powers, privileges and immunities enjoyed by the

House of Commons of British Parliament and those

powel'.S, privileges and immunities prevail over the

freedom of speech and expression conferred on citizens

under Art. 19(l)(a).

Besides a

few minor miscellaneous points raised by

the learned advocate for the petitioner, which will be

dealt with in due course, two principal points arising

on the pleadings have been canvassed before us and

they are formulated thus:-

I. Has the House of the Legislature in India the

privilege under Art. 194(3) of the Constitution to

pro­

hibit entirely the publication of the publicly seen and

heard proceedings ,that took place in the House or

even to prohibit the publication of that part of the

proceedings which had been directed to be expunged?

II. Does the privilege of the House under Art.

(1) A.l.R. (1951) Mad. 70.

i.Jas C. j.

Pandil

M. S. M. Shartnu

v.

Sfu·i STi K,·ishna

Sinha and Others

Ll•• c. ].

840 SUPREME COURT REPORTS (1959] Supp.

194(3) p1·ovail over the fundamental right of the peti·

tioner under Art. 19(l)(a)?

Re I: Article 194, on which depends our decision

not only on this point

but also on the next oue, may

now be set out:-" 194. (1) Subject to the provisions of thi11 0011-

stitu ti<;m and to the rules and standing orders regulat­

ing 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

proceeding& 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

HO 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 the Parliament of the United Kingdom,

and of its members and committees, at the commence-

ment

of this Constitution.

·

(4) The provisions of clauses (1), (2) and (3) shall

apply in relation to persons who

by virtue of this

Con­

stitution have the right to speak in, and otherwise to

take part in the proceedings of, a House of the

Legislat.ure of a State or any committee thereof as

they apply in relation to members of that Legislature."

This Article, which applies to the State Legislatures

and the members and committees thereof, is a repro­

duction, inutatis inutandis, of Art. 105 which applies

to bot.h Houses of Parliament and the members and

committees thereof. It is common ground that the

Legislature

of the

State of Bihar has not made any

law with respect to the powers, privileges and immu­

nities of the House of the Legislature. as enumerated

in entry 39 of List II of the Seventh Schedule to the

Constitution just as Parliament has made no law with

respect

to the matters enumerated in entry 74 of List

(I} S.C.R. SUPREME COURT REPORTS 841

I of that Schedule. Therefore under the latter part of r958

cl. (3) of Art. 194 the Legislative Assembly of Bihar .

h

·11 h , 'I d , 't' , d Pandit

as a t e powers, pnv1 eges an 1mmum ies enJoye M. s. M. Shanna

by the House of Commons at the commencement of v.

our Constitution. What, then, were the powers, privi- Shri Sri lislma

1eges and•immunities of the House of Commons which Sinha and Others

a.re relevant for the purposes of the present petition ?

Parliamentary privilege is denned as '' tl~e sum of

the peculiar rights enjoyed by each House cbllectively

as a constituent p3'rt 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 othe~ bodies or indi-

viduals" (1). According to the same author "privilege,

though part of the law of the land, is to a certain

extent

an exemption from the ordinary

law". The

privileges

of Parliament are of two kinds, namely, (i)

those which are common to both Houses and (ii) those wl!ich a.re peculiar either to the House of Lords or to

the House of Commons (2). The privileges of the

Commons, as distinct from the Lords, have been

defined

as

" the sum of the fundamental rights of the

House

and of its individual members as against the pre-rQgatives of the Crown, the authority of the ordinary

courts

of law and the special rights of the House of

Lords (

3

). Learned

Solicitor General appearing for

the respondents claims that the Legislative Assembly,

like the House

of

Commons, has the power and privi-

lege,

if it so desires, to prohibit totally the publication

of any debate or proceedings that may take place in

the House and at any rate to prohibit the publication

of inaccurate or garbled versions of it. In other

words,

it is

claimed that the House of Commons has

the power and privilege to prohibit the publication in

any newspaper of even a true and faithful report of

its proceedings and certainly the publication of any

(r) Sir Thomas Erskine May's Parliamentary Practice, 16th Edn.,

Ch. III, p. 42.

(2) Halsbury's Laws of England, 2nd Edn., Vol. 24, Art. 698, p. 346.

(3) Redlich and Ilhert on Procedure of the House of Commons,

Vol. I, p. 46.

106

Das C.J.

842 SUPREME COURT REPORTS [1959] Supp.

r958 portion of speeches or proceedings directed to be

expunged from

the official record.

Pandit

M. s. M. sha,ma As pointed out in May's Parliamentary Practice,

v. 16th Edn., p. 151, in the early days of British History

Shri Sri Jirishna the maintenance of its privileges was of vital import­

Sinha and Olhm ance to the House of Commons. They were necessary

to preserve

its independence of the King and the

Das

C. ].

Lords and, indeed, to its very existence. The privi-

leges

of the House of

Commons have been grouped

under two heads, namely, (1) those demanded of the

Crown by the Speaker of the House of Commons (1,t

the commencement of each Parliament and granted as

a matter of course and (2) those not so demanded by

the Speaker. Under the first heading come (a) freedom

from

arrest (claimed in 1554), (b) freedom of speeeh

(claimed

in 1541), (c) the right of access to the

Crown

(claimed in 1536) and (d) the right of having the most

favourable construction placed upon

its

proceedings

The second head comprises (i) the right to provide for

the due composition of its own body, (ii) the right to

regulate its own proceedings, (iii) the right to exclude

strangers, (iv)

the right to prohibit publication of its

debates

ai1d (v) the right to enforce observation of its

privileges by fine, imprisonment and expulsion

(1 ).

Admonition and reprimand are milder forms of punish­

ment. The privileges of the House of Commons under

the first head are claimed at the commencement of

every

Parliament by the

Speaker addressing the Lord

Chancellor on

behalf of the Commons. They are

claimed

as

"ancient and undoubted" and arc, through

the Chancellor " most readily granted and confirmed "

by the Crown ('). Of the three things thus claimed,

two, namely,

the freedom of the person and the free­

dom

of speech and certain consequential rights like

the right to exclude strangers from the House

and the

control or prohibition of publication of the debates and

proceedings are common to both Houses (').

(1) Ridge's Constitutional Law, 8th Edn., p. 61; also t Ialslmry's ·

Laws of England, 2nd Edn., Vol. 24, p. 351.

(2) Anson's Law and Custom of the Constitution, Vol. 1, Ch. :f,

p. 162.

(3) I-Ialsbury's Laws of Englar •. 1, 2nd Edn., Vol. 24, p. 3.16.

(I) S.C.R. SUPREME COURT REPORTS 843

For a deliberative body like the House of Lords or x95S

the House Commons, freedom of speech is of the Pandit

utmost importance. A full and free debate is of the M. s. u. Sharma

essence of Parliamentary democracy. Although free- v.

dom of speech was claimed and granted at the com-Shri Sri J<rishn"

mencement of every Parliament, it was hardly any Sinha and Others

P

rotection against the autocratic Kings, for the sub---

Das C. ].

stance of the debates could be and was frequently

reported to the King and his ministers which exposed

the members to the royal wrath. Secrecy of Parlia-

mentary, debates was, therefore, considered necessary

not only for the due discharge of the responsibilitim>

of the members but also for their personal safety.

"The original motive for secrecy of debate was tho

anxiety of the members to protect themselves against

the action 'of the sovereign, but it was soon found

equally

convenient as a veil to hide their proceedings

from

their constituencies"

(1). This object could be

achieved in two ways, namely, (a)

by prohibiting the

publication of any report of the debates and proceed-

ings

and (b) by excluding strangers from

the Hom;e

and holding debates within closed <loon;. These two

powers or privileges

have been adopted to ensure tho . secrecy of debates to give full play to tho members'

freedom

of speech and therefore,

really flow, as iwecs­

sary corollaries, from that frec•dom of speech which is

expressly claimed

and granted at t.hc

comuwncemcnt

of every Parliament.

As to (a): " The history of l'arliamentary privilege

is

to a great extent a story of the fierce and prolonged

struggle

of the

Commons to win the rights and free­

doms which they enjoy to-day" (2). The right to

control and, if necessary, to prohibit the publication

of the debate;; and proceedings has been claimed,

asserted and exercised by lJoth Houses of Parliament

from very old day:;. In 1628 and again in 1640 the

ulerk was forbidden to make notes of " particular

men':; speeches " or to " suffer copies to go forth of

(I) Taswcll-Langmcad's Constiwlional History, 10th Edn., p. 657.

(2) Encyclopaedia of Parliament by Norman Widliug and Lauudy,

p. 45r.

Pandit

M. S. 1'r1. Sharma

v.

SkYi 5iri Krisktui

Sinha and Others

Das

C. j.

844 SUPREME COURT Rl<JPORTS [1959] Supp.

any arguments or speech whatsoever"('). The House

of Commons of the Long Parliament in 1641 framed a

standing order " that n9 member shall either give a

copy

or publish in print anything that he shall speak

in the House

" and " that all the members of the

House are enjoined to deliver out no copy or notes of

anything that is brought into the House, or that is

propounded or agitated in this House". In that

critical period it was a necessary precaution. So strict

was the House about this privilege that for printing a

collection

of his own speeches without such leave, Sir

E. Derring was expelled from

the House and

impri­

soned in the Tower and his book was ordered to be

burnt by the common hangman. This standing order

has not up to this date been abrogated or repealed. In

1680 to prevent inaccurate accounts of the business

done,

the

Commons directed their "votes and proceed­

ings, without any reference to the debates, to .be print­

ed under the direction of the Speaker. After the

Revolution of 1688 frequent resolutions were passed

by

both Houses of

Parliament from 1694 to 1698to

restrain newsletter writers from " intermeddling with

their debates or other proceedings " or " giving any

account of minute of the debates". But such was the

craving of the people for political news that notwith­

st;i,nding these resolutions and' the punishment of

offenders imperfect reports went on being published in

newspapers

or journals. Amongst the papers were !foyer's "Political State of Great Britain ", "London

Magazine", and "Gentleman's Magazine" in which

revorts of debates were published under such titles as

"Proceedings of a Political Club" and "Debates in

the Senate of Magna Lilliputia ". In 1722 the House

of Commons passed the following resolutions:

"Resolved, That no News 'Vriters do presame in

their Letters, or other Papers, that they disperse as

Minutes, or under auy other Denomination, to inter­

meddle with the Debates, or any other Proceedings, of

this House.

Hesolved,

That no

Printer or Publisher of anv

printed News Papers, do presume to insert in any s11ch

(1) liatsell 265 quoted. iu 11Iay's Parlia1ncntary Practh:1J, iolh E<lu., I

p. 55·

·'

~

(1) S.C.R. SUPREME COURT REPORTS . 845

Papers any Debates, or any other Proceedings of this

1

9

58

House, or any Committee

thereof" (1 ). Pandil

In 1738 the publication of its proceedings was charac-llf. s. M. Sharma

terised in another resolution of the House of Commons v. .

as " a high indignity and a notorious bre~ch of privi-S~ri Sri Krishna

lege ". The publication of debates in the t· Middlesex Sinha and Others

Journal " brought down the wrath of the House of Das c.

1

.

Commons on the printers who were ordere!-' to attend

the House. The printers not having been found war-

rants were issued for their arrest and one printer was

arrested

and brought before Alderman John

Wilkes

who immediately discharged him on the ground that

no crime had been committed. Another printer was

arrested and brought before another Alderman who,

likewise, discharged

the prisoner inasmuch

as he was

not accused of having committed any crime. By way

of reprisal the House of Commons imprisoned the Lord

Mayor

and an Alderman, both of whom were the mem-

bers

of the House. Both men, on their release, were

honoured in

a triumphal procession from the Tower of

London to the. Mansion House. After this political

controversy, debates

in both Houses continued to be

reported with impunity, although technically such re-

porting was a breach

of privilege. Accurate reporting

was, however, hampered

by many difficulties, for the

reporters had no accommodation in the House and

were frequently obliged to wait for long periods in the

halls or on

the stairways and were not permitted to

take notes. The result was that the reports published

in

the papers were full of mistakes and misrepresenta-

tions. After

the House of

Commons was destroyed by

fire in 1834, galleries in temporary

quarters were pro-

vided

foi• the convenience of reporters, and in the new

House of Commons a separate gallery was provided

for

the

Press. In 1836 the Commons provided for the

publication

of parliamentary papers and reports, which

led to

the conflict between the House of

Commons and

the courts, which was decided in Stockdale v. Han-

sard (2), where Lord Chief Justice Denman held that

(1) 20 Journals of the House of Commons, p. 99; quoted in l'rank

Thayer's Legal Control of the Press, pp. 28-29.

(2) l\Ioody and Robson, g. 174 Enµ-. l~ep. 196; also see (1839) g A. & E.

Reports, Eng. Q.B. I; IU Eng. Rep. III2.

846 SUPREME COURT REPORTS [1959] Supp.

the fact of the House of Commons having directed

Pandit Messrs. Hansard to publish all their parliamentary re-

M. s. M. Sh.,ma ports was no justification for their or for any other

v. bookseller publishing a parliamentary report, contain-

Shd Sri f(rishna • l"b 1 · t S b 1 h H

S

. h d Oth mg a 1 e agams any man. u sequent y t e ouse

in a an ers . . .

_ retaliated by comm1ttmg Stockdale aud his attorney

Das c. J. and also the sheriff to prison. The deadlock thus

brought about was at length removed by the passing of

the Parliamentary Papers Act, 1840 (3 and 4 Vic. c. 9).

Learned advocate for the petitioner has drawn our

attention to the judgment of Cockburn, C. J., in the

celebrated case of Wason v. Walter ('). The plaintiff

in that case had presented a petition to the House of

· Lords charging a high judicial officer with having, 30

years before, made a statement false to his own know­

ledge,

in order to deceive a committee of the House of Commons and praying enquiry and the removal of the

officer if the charge was found true. A debate ensued

on the presentation of the petition and the charge was

utterly refuted. Allegations disparaging to the charac.

ter of the plaintiff bail been spoken in the course of

the debate. A faithful report of the debate was

published

in the Times and the plaintiff proceeded

against the defendant, who was a proprietor of the

Times, for libel. It was held that the debate was a

subject

of great public concern on which a writer in a

public newspaper

had full right to comment, and the

occasion was, therefore, so far privileged that the

comments would not be actionable so long as a jury

should think them honest and made in a fair spirit,

and such as were justified by the circumstances as dis-.

closed in

an accurate report of the debate. Learned

advocate for the petitioner contends that this decision

establishes

that the Press had the absolute privilege of

publishing a report of the proceedings that take place

in

Parliameut, just as it is entitled to publish a faith­

ful and correct report of the proceedings of the courts

of justice, though the character of individuals may

incidentally suffer and that the publication of such

accurate reports is privileged and entails neither crimi­

nal nor civil responsibility. This argument overlooks

(1) (1868) L.R.

IV Q.B. 73.

(1) S.C.R. SUPREME COURT REPORTS 847

that the question raised and actually decided in that

case, as formulated by Cockburn, C. J., himself at Pandit

p. ~2, was simply this:- M. s. M. Sharma

"The main question for our decision is, whether v.

a faithful report in a public newspaper of a debate in S~ri Sri Krishna

either House of Parliament, containing matter dis-Sinha and Others

P

aramng to the character of an individual, as having

o··· Das C. ].

been spoken in the course.of the debate, is actionable

a.t the suit of the party whose character has thus been

called

in

question."

The issue was between the publisher and the person

whose cha.racter had been attacked. The question of

the privilege, as between the House and the news­

paper, was not in issue at all. In the next place, the

observations relied upon as bearing on the question of

privilege of Parliament were not at all necessary for

deciding

that case and, as Frank Thayer points out at

p. 32 of his Legal

Control of the Press, "this part of

the opinion is purely dictum". In the third place, the

following observations of the learned Chief Justice

cl~arly "indicate that, as between the House and the

Press, the privilege does exist:-

"It only remains to advert to an argument urged

against

the legality of the publication of parliamentary

proceedings, namely, that such publication is illegal as

being in contravention

of the standing orders of both

houses of parliament. The fact, no doubt, is, that

each house of parliament does, by

its standing orders,

prohibit

the publication of its debates. But,

practic­

ally each house not only permits, but also sanctions

and encourages, the publication of its proceedings,

and actually gives every facility to those who report

them.

Individual members correct their speeches for

publication in

Hansard or the public journals, and in

every debate reports of former speeches contained

therein are constantly referred to. Collectively, as

well as individually,

the members of both houses

would deplore as a national misfortune

the withhold.

ing their debates from

the country at large.

Practic­

ally speaking, therefore, it is idle to say that the

publication of parliamentary proceedings is prohibited

by parliament.

The standing orders which prohibit

848 · SUPREME COURT REPORTS [1959] Supp.

r958 it are obviously maintained only to give to each

P d. house the control over the publication of its proceed-

.11. s. A~~ ;:,a,ma ings, and the power of preventing or correcting any

v. abuse of the facility afforded. Independently of the

Sh,; s,; K•ishna orders of the houses, there is nothing unlawful in

s;nha and Othm publishing reports of parliamentary proceedings. Prac­

Das C. ].

tically, such publication is sanctioned· by parliament;

it is essential to the working of our parliamentary

system, and to the welfare of the nation. Any argu­

ment founded on its alleged illegality appears to us,

therefore, entirely

to fail.

Should either house of

parliament ever be so ill-ad vised as to prevent its pro­

ceedings from being made known to the country­

which certainly never will be the case-any publica­

tion of its debates made in contravention of its orders

would be a

matter between the house and the publisher.

For the present purpose, we must treat such

publica­

tion as in every respect Ia:wful, and hold that, while

honestly

and faithfully carried on, those who

_publil!h

them will be free from legal responsibility, though the

character of individuals may incidentally be injurio­

usly affected."

With the facilities now accorded to the reporters, the

practice of reporting has improved, and the House,

sensible

of the advantage whichjt derives from a full

and clear account of its debates, has even encouraged

the publication of reports of debates and proceedings

that take place in the House. From this it does not

at all follow that the House has given up this valuable

privilege. The following

passa.ge in Anson's Law and

Custom of the Constitution at p. 174 is significant and

correctly states the position :-·

" We are accustomed, therefore, to be •daily in­

formed, throughout the Parliamentary Session, of

every deta.il of events in the House of Commons; and

so we are apt to forget two things.

The first is,

that these reports are made on

suffer­

ance, · for the House can at any moment exclude

strangers

and clear the reporter's

ga.Ilery ; and that

they are also published on sufferance, for the House

may at any time resolve that publication is a breach

of privilege and deal with it accordingly.

(1) S.C.R. SUPREME COURT REPORTS 849

The second is, that though the privileges of the r9_sa

House confer a right to privacy of debate they do not d"

confer a corresponding_ right to the publication of M. s.~~ s';arma

debate." v.

Frank Thayer at pp. 31-32 expresses the same view Shri Sri Krishna

in the following terms :- Sinha and Othm

" Parliamentary privilege as part of the unwritten

English Constitution is the exclusive

right of either

House to decide

what constitutes interference with its

duties, its dignity,

and its independence. Its power

to exclude strangers so as to secure privacy of debate

closely follows

the right of Parliament to prevent the

publication of debates. Attendance at Parliamentary

debates and the publication of debates are by suffer-

ance only, although

it is now recognized that dis-

semination

of information on debates and Parliamen-

tary proceedings is advantageous to English demo-

cracy and, in fact, necessary to public safety.

By

judicial dictum it has been stated that there is a right

to publish fair and accurate

repJ)l'ts of Parliamentary

debates, but actually the traditional privilege of

Parliament continues in conflict witkjudicial opinion.

There is still a standing order forbidding

the publica-

tion

of Parliamentary debates, an order that by

custom and the right of sufferance has become prac-

tically obsolete;

yet the threat of such an order and

the possibility of a contempt citation for its abuse,

should Parliament deem

it advantageous to withhold

some particular discussion,

serve as a check upon

careless reporting

and distorted

comment."

May in his Parliamentary Practice, 16th Edu., p. l18

puts the matter thus :-

"Analogous to the publication of libels upon

either House is

the publication of false or perverted,

or of partial and injurious reports of debates or

pro­

ceedings of either House or committees of either House

or misrepresentations of

the speeches of

particuli.i.r

members. But as the Commons have repeatedly made

orders forbidding

the publications of the debates or

other proceedings of their House or

any committee

thereof which, though

not renewed in any subsequent

Das C. ].

850 SUPREME COURT REPORTS [1959) Supp.

1

9.!B session, are considered to be still in force, it has been

I' . rnled that an alleged misrepresentation is not in itself

,\J. s. ;~~"'"'" a proper matter for t.he consideration of the House,

v. the right course being to call attention to the report

:;n.i Sri K•islma as an infringement of the orders of the House, and

Sinha and Others then to complain of the misrepresentation as an aggra­

Das C. ].

vation of the offence."

The fact that the House of Commons jealously guards

this particular priVilege is amply borne out by the

fact that as late as May 31, 1875, when Lord Harting­

ton sponsored a motion in the House of Commons

" that this House will not entertain any complaint in

respect of the publication of the debates or proceed­

ings of the House, or of any committee thereof, except

when such debates or any proceedings shall have been

conducted within closed doors or when such publica­

tion aha.II have been expressly prohibited by the

House or any committee or in case of wilful misrepre­

sentation or other offence in relation to such publica­

tion " the House of Commons rejected the same out­

right. The conclusion deducible from this circum­

stance is thus summarised ·in May's Parliamentary

Practice at p. 118 :-

"So Jong as the debates are correctly and faith­

fully reported, the orders which prohibit their publica­

tion are not enforced; but when they are reported

ma.la fide the publishers of newspa.pers are liable to

punishment .. "

Several instances are given in May's Parliamentary

Practice at pp. 118-19 where proceedings have been

taken for breach of privilege including a case of the

publication in 1801 of a proceeding which the House

of Lords had ordered to be expunged from the journal.

It is said that that was a case of privilege of the

House of Lords and not a case of privilege of the

Honse of Commons and it is pointed out that there

has been no instance of such a claim of privilege

having been made by the House of Commons for over

a century. In the first place, it should be remembered

that this privilege, as stated in Halsbury's Laws of

England, 2nd Edn., Vol. 24, p. 351, is a common privi­

lege claimed by both Houses and, if the House of

(1) S.C.R. SUPREME COURT REPORTS 851

Lords could assert and exercise it in 1801, there is no r958

reason to suppose that the House of Commons will not, P .

be able. to do so if any occasion arises for its assertion .v. s. i(;~~·~arma

or exercise. If the House of Commons has not done v.

so for a long time it must rather be assumed that no Shri Sri Krish11a

occasion had arisen for the assertion and exercise of Sinha and 01her.•

this power than that it had ceased to have the power

at all (Cf. the observations in Wason v. Walter) (1)

and In re: Banwarilal Roy (2)). Purther the fact that

the House of Commons in 1875 rejected Lord Harting-

ton's motion referred to above also clearly indicates

that the House of Commons is anxious to preserve this

particular privilege. It is interesting also to note the

new point that arose in the House of Commons regard-

ing

the publication of certain proceedings in August

1947

.• A Committee of Privileges found that one

Mr.

Evelvn Walkdeu, member for Doncaster, had

revealed

the proceedi11gs of a private party meeting

to a newspaper. The Committee thought that-the

practice of holding party meetings of a confiden-

tial

character had become well.established and must

be taken as a normal

and everyday incident of

parliamentary procedure. The Committee felt that

attendance at such meetings within the precincts of

the Palace of Westminster during the session was

part of the member's normal duties

and the public:J.-

tion by the handing out of a report of the proceedings

a.mounted to a breach

of the privilege of the House. It

is true that the House only resolved that

Mr. Walkden

was guilty

of dishonourable conduct, but did not expel

him but it also passed

a resolution that in future any

person offering payment for the disclosure of such in-

formation would incur

the House's grave displea-

sure

(

3

). In this case the inquiry was with regard to the

conduct of a member for having committed a breach

of the privilege of the House by publishing the pro-

ceedings to

an outsider. The point, however, to note

is

that whatever doubts there might have been as to

whether

the proceedings of the private party meetings

could be equated with

the regular proceedings of

(I)

(1868) L.R. IV Q.B. 73- (2) 48 C. W. N. 766, 787.

(3) Ridge's Constitutional Law, 8th Edn., p. 70 and May's Parlia­

mentary Practice, 16th Edn., p. 52.

Das C.].

852 SUPREME COURT REPORTS [1959] Supp.

z95B the House of Commons, there was, nevertheless, no

Pandit question or doubt about the existence of the power or

M. s. M. Sharma privilege of the House to forbid publication oft.he pro-

v. ceedings of the House. This case also shows that the

Shri Sri Krishna House of Commons had not only not abandoned its

Sinha and Others power or privilege of prohibiting the publication of its

Das C.J.

proceedings proper but also considered the question of

applying this power or privilege to the publication by

a member of the proceedings that took place in a

private party meeting held within the precincts of the

House.

As to (b): It has already been said that the free·

dom of speech claimed .by the House and granted by

the Crown is, when necessary, ensured by the secrecy

of the debate which in its turn is protected by prohi­

biting publication of the debates and proceedings as

well as by excluding strangers from the House. Any

member could in the old days "spy a stranger" and

the Speaker had to clear the House of all strangers

which would,

of course, include the

Press reporters.

This

right was exercised in 1849 and after

20 years in

1870 and again in 1872 and 1874. In 1875, however,

this rule was modified by a resolution of the House

only t9 this extent, namely, that, on a member spying

a stranger, the Speaker would put the matter to the

vote of the House('). This right was exercised in

1923

and a.gain as

late as on November 18, 1958 (').

This also shows that there has been no diminution in

the eagerness of the House of Commons to protect

itself by securing the secrecy of debate by excluding

strangers from the House when

any occasion a.rises.

The object of excluding strangers is to prevent the publication of the debates and proceedings in the

House and, if the House is tenaciously clinging to this

power or privilege of excluding strangers, it is not

likely that it has abandoned its power or privilege to

prohibit the pub!icat.ion of reports of debates or pro­

ceedings that take place within its precincts.

The result of the foregoing discussion, therefore, is

that the House of Commons had at the commencement

(1) Taswell-Langmead, p. 660.

(:z) The. Statesman dated November 20, 1958.

(l) S.C.R. SUPREME COURT REPORTS 853

of our Constitution the power or privilege of prohibit- '95

8

ing the publication. of even a true and faithful report P d't

of the debates or proceedings that take place within M. s. ~~ ;harma

the House. A fortiori the House had at the relevant v.

· time the power or privilege of prohibiting the publica-Shri Sri Krishna

tion of an inaccurate or garbled version of such deba-Sinha and Othm

tes or proceedings. The latter part of Art. 194(3) D-;

1

confers all these powers, privileges and immunities on as • ·

the House of the Legislature of the States, as Art.

105(3) does on the Houses qf Parliament. It is said

that the conditions that prevailed in the dark days of

British history, which led to the Houses of Parliament

to claim their powers, privileges and immunities, do

not now prevail either in

the

United Kingdom or in

. our country and that there is, therefore, no reason

why

we

should adopt them in these democratic days.

Our Constitution clearly provides that until Parlia.

ment or the State Legislature, as the case may be,

makes a law defining the powers, privileges and im·

munities of the House, its members and Committees,

they shall have all the powers, privileges

and

immun­

ities of the House of Commons as at the date of the

coinmericement

of our Constitution

and yet to deny

them those powers, privileges and immunities, after

finding

that the House of

Commons had them at the

relevant time, will be not to interpret the Constitution

but to re-make it. Nor do we share the view that it

will not be .right to entrust our Houses with these

powers, privileges and immunities, for

we are well

persuaded

that our Houses, like the House of

Com­

mons, will appreciate the benefit of publicity and will

not exercise the powers, privileges and immunities

except in gross cases.

Re. II: Assuming that the petitioner, as a citizen and an editor of a newspaper, has under Art. 19(l)(a)

the fundamental right to publish a true and faithful

·report of the debates or proceedings that take place in

the Legislative Assembly of Bihar and granting that

that Assembly under Art. 194(3) has all the powers,

·privileges

and immunities of the House of

Commons

. which include, amongst others, the right to prohibit the

publication

of

any report of the debates or proceedings,

854 SUPREME COURT R.EPORTS [1959] Supp.

whose right is to prevail? Learned advocate for

P•ndi• the petitioner contends that the powers, privileges

M. s. M. Sharma and immunities of the Legislative Assembly under

v.

Shri Sri Krishna

Sinha and Others

Dos C.j.

Art. 194(3) must give way to the fundamental right of

the petitioner under Art. l9(l)(a). In other words,

Art. 194

(3), according to him, is subject to Art.

19 (l)(a).

Learned advocate for

the petitioner seeks to support

his client's claim in a variety

of ways which may now

be noted seriatim

:-

(i) that though cl. (3) of Art. 194 has not, in

terms, been made

"subject to the provision of the

Constitution", it does not necessarily mean that it is

not

so subject, and that the several clauses of Art. 194

or Art.

105 should not be treated as distinct and sepa­

rate provisions but should be read as a whole and that,

so read, all the clauses should be taken a.s subject to

the provisions

of the Constitution, which, of course,

would include Art. 19(l)(a);

(ii)

that Art. 194(1), like Art.

105(1), in rea.ltty

operates as an abridgement of the fundamental right

of freedom of speech conferred by Art. 19(l)(a) when

exercised in

Parliament or the

State Legislatures res­

pectively, but Art. 194(3) does not, in terms, purport

to be an exception to Art. 19(l)(a.);

(iii)

that Art. 19, which enunciates

a. transcend­

ental principle and confers on the citizens of India

indefeasible and fundamental rights of a. permanent

nature, is enshrined in Pa.rt III of our Constitution,

which, in view

of its subject matter, is more important,

enduring

and sacrosanct than the rest of the provi­

sions of the Constitution, but that the second pa.rt of

Art. 194(3) is of the nature of a. transitory provision

which, from its very nature, cannot override the

fundamental rights ;

(iv)

that if, in

pursuance of the provisions of Art.

105(3), Parliament makes a law under entry 74 in List

I to

the

Seventh Schedule defining the powers, privi­

leges and immunities of the House or Houses of Par­

liament and its members and committees or if, in

pursuance

of the provisions of Art. 194(3), the

State

Legislature makes a. law under entry 39 in List II to

(1) S.C.R. SUPREME COURT REPORTS 855

the Seventh Schedule defining the powers, privileges r95a

and immunities of the House or Houses of the Legisla-

ture

of

a State and its members and committees and M s 1;;"~;~

if, in either case, the powers, privileges and immuni-. . ~. arma

ties so defined and conferred on the House or Houses Shri Sri Krishna

are repugnant to the fundamental rights of the Sinha and Others

citizens, such law will, under Art. 13, to the extent of -

such repugnancy, be void

and that such being the

Das c. f.

intention of the Constitution makers in the earlier

part of Art. 194(3) and there being no apparent indi-

cation

of a different intention in the latter part of the

same clause,

the powers, privileges and immunities of

the House of

Commons conferred by the latter part of

cl.

(3) must also be taken as subject to the fundamen-

tal rights;

(v) that the observations in Anand Bihari Mishra

v. Ram

Sahay (

1

)

and the decision of this

Court in

Gunupati K eshavram Reddy v. N afisul Hasan (

2

)

clearly establish that Art. 194(3) is subject to the

fundamental rights.

The arguments, thus formulated, sound plausible

and

even attractive, but do not bear close scrutiny, as will

be presently seen.

Article 194 has already been quoted

in extenso. It

is quite clear that the subject matter of each of its

four clauses is different.

Clause (1) confers on the

members freedom

of speech in the Legislature, subject,

of course, to certain provisions therein referred to. Clause (2) gives immunity to the members or any

person authorised by the House to publish any report

etc. from legal proceedings. Clause (3) confers certain

powers, privileges

and immunities on the House of the

Legislature of a

State and on the members. and the

committees thereof

and finally cl. (4) extends the

pro­

visions of els. (1) to (3) to persons who are not mem­

bers of the House, but who, by virtue of the Constitu­

tion, have the right to speak and otherwise to take

pa.rt in the proceedings

of the House or any committee

thereof.

In the second place, the fact that cl. (1)

has

been expressly made subject to the provisions of the

Constitution

but els. (2) to (4) have not been stated to (1) A.I.R. (1952) M.B. 31, 43• (2) A.I.R. (1954) &.<;. 636.

Pandit

.+.1. S. M. Sha1mt1

v.

:)h1·i S1·i Krishna

5inlul and Other:>

Da' C. j.

856 SUPREME COURT REPORTS [1959) Supp.

be

HO subject

indicates that the Constitution makers

did not intend els. (2) to (4) to be subject to the provi­

sions of the Constitution. If the Constitution makers

wanted that the provisions of all the clauses should be

subject to the provisions of the Constitution, then the

Article would have been drafted in a different way,

namely, it would have started with the words: "Sub­

ject to the provisions of this Constitution and the rules

and standing orders regulating the procedure of the

Legislature-" aud then the subject matter of the four

clauses would

have been set out as sub-els. (i), (ii), (iii)

and (iv)

rm as to indicate that the overriding provi­

sious of the opening words qualified each of the sub­

clauses. In the third place, in may well be argued that

the words "regulating the procedure of the Legisla­

ture" occurring in cl. (1) of Art. 194 should be read as

governing both "the provisions of the Constitution"

and " the ru !es and standing orders ". So read free­

dom of speech in the Legislature becomes subject to

the provisions of the Constitution regulating the pro­

cedure of the Legislature, that is to say, subject to the

Articles relating to procedure in Part VI including

Arts. 208 and 211, just as freedom of speech in Parlia­

ment under Art. 105(1), on a similar construction, will

become subject to

the Articles relating to procedure in Part V including Arts. ll8 and 121. The argument

that the whole of Art. 194 is subject to Art. 19(l)(a)

overlooks

the provisions of cl. (2) of Art. 194. The

right conferred on a citizen under Art. 19(l)(a) can be

restricted

by law which falls within cl. (2) of that

Article and he may be made liable in a court of law

for breach

of such law, but cl. (2) of Art.

194 categori­

cally lays down that no member of the Legislature is

to be made liable to any proceedings iu any court in

respect of anything said or any vote given by him in

the Legislature or in committees thereof and that no

person will be liable

in respect of the publication by or

under

the authority of the House of such a Legishture

of any report, paper or proceedings. The provisions

of cl. (2) of Art. 194, therefore, indicate that the

free­

dom of speech referred to in cl. (1) is difforent from

the freedom of speech and expression guaranteed

(1) S.C.R. SUPREME COURT REPORTS 857

under Art. 19(l)(a) and cannot be cut down in any r958

way by anv law contemplated by cl. (2) of Art. 19. .

" Pandit

As to the second head of arguments noted above it M. s. M. Sharma

has to be pointed out that if the intention of cl. (1) of v.

Art. 194 was only to indicate that it was an abridge-S~ri Sri Krishna

ment of the freedom of speech which would have been Srnha and Others

available to a member of the Legislature as a citizen -

Das C.].

under Art. 19(l)(a), then it would have been easier to

say in cl.

(1) that the freedom of speech conferred by

Art. 19(l)(a), when exercised in the Legislature of

a

State, would, in addition to the restrictions permissible

by law under cl. (2) of that Article, be further subject

to

the provisions of the Constitution and the rules and

standing orders regulating procedure of that Legisla-

ture. There would have been no necessity for confer-ring anew the freedom of speech as the words " there

shall be freedom

of speech in the Legislature of every State" obviously intend to do.

Learned advocate for

the petitioner has laid great

emphasis on

the two parts of the provisions of cl. (3)

of Art. 194, namely, that the powers, privileges and

immunities of a House of the Legislature of a

State and

of the members and committees thereof shall be such

as

may from time to time be defined by the Legislature

by law and that until then they shall be those of the

House of

Commons of the Parliament of the United

Kingdom and of its members and committees. 'The

argument is that a law defining the powers, privileges

and immunities of a House or Houses and the members

and committees thereof can be made by Parliament

under

entry 74 in List I and by the

State Legislature

under

entry 39 of List II and if a law so made takes

away or abridges the right to freedom of speech

guaranteed under Art. 19(1)(a)

and is not protected

under Art. 19(2),

it will at once attract the operation

of the peremptory provisions of Art. 13 and become

void to

the extent of the contravention of that Article.

But it is pointed out that if Parliament or the

State

Legislature does not choose to define the powers,

privileges

and immunities and the Houses of

Parlia­

ment or the House or Houses of the State Legislature

108

858 SUPREME COURT REPORTS (1959] Supp.

'958 or the members and committees thereof get the powers,

. privileges

and immunities of the House of Commons,

M.

s.~~~~f.arma there can be no reas?n why, in ~nch e'.'e.nt, the last

. v. mentioned powers, privileges and 1mmumties should be

Sh,i s,; Ifrishna independent of and override the provisions of Art. 19

Sinha and Othm (l)(a). The conclusion sought to be pressed upon us is

that that could not be the intention of the Constitu-

Das c. J. tion makers and, therefore, it must be held that the

powers, privileges and immunities of the House of Com­

mons and of its members and committees that are

conferred by the latter part of Art. 105(3) on each

House

of Parliament and the members and committees

thereof and by the latter part of Art. 194(3) on a

House

of the Legislature of a State and the members

and committees thereof must be, like the powers,

privileges

and immunities defined by law, to be

mad~

by Parliament or the State Legislature as the case

may be, subject to the provisions of Art. 19(l)(a). ·we

are unable to accept this reasoning. It is true that a

law

made by Parliament in pursuance of the earlier

part of Art.

105(3) or by the State Legislature in

pursuance of the earlier part of Art. 194(3) will not be

a law made in exercise of constituent power like the

law which was considered in Sankari Prasad Singh

Deo v. Union of India (

1

)

but will be one made in

exercise

of its ordinary legislative powers under

Art. 246

read with the entries referred to above and

that consequently if such a law takes away or abridges

any of the fundamental rights it will contravene the

peremptory provisions of Art. 13(2) and will be

yoid to

the extent of such contravention and it may well be

that that is precisely the reason why our Parliament

and the State Legislatures have not made any law

defining

the powers, privileges and immunities just as

the Australian

Parliament had not made any under

s. 49 of their Constitution corresponding to Art. 194(3)

up to 1955 when the case of '1-'he Queen v. Richards(')

was decided. It does not, however, follow that if the

powers, privileges or immunities conferred by the

latter part of those Articles are repugnant to the

fundamental rights, they must also be void to the

(t) [1952] S.C.R. 89, 90. (2) (1955) 92 C.L.R. 57.

~.

I

(1) S.C.R. SUPREME COURT REPORTS 859

extent of such repugnancy. It must not be overlooked z95B

that the provisions of Art. 105(3) and Art. 194(3) are P a·

constitutional laws and not ordinary laws made by M. s. A:~s~arma

Parliament or the Stiite Legislatures and that, there- v.

fore, they are as supreme as the provisions of Part III. Shri Sri Krishna

Fmther, quite conceivably our Constitution makers, Sinha and Ollie's

not knowing what powers, privileges and immunities

Parliament or the Legislature of a State may arrogate

and claim for its Houses, members or committees,

thought fit not to take any risk a.nd accordingly made

such laws subject

to the provisions of Art. 13; but

that knowing and being

satisfied with t.he reasonable-

ness

of the powers, privileges and immunities of the

Honse of

Commons at the commencement of the Con-

stitution, they did not, in their wisdom, think fit to

make such powers, privileges and immunities subject

to the fundamental right conferred by Art. 19(l)(a).

\Ve must, by applying the cardinal rules of construc-

tion ascertain

the intention of the Constitution makers

from

the language used by them. In this connection

the observations

made in Anantha Krishnan v. State of

Madras (1) by VenkQ,tarama Aiyar, J., appear to us to

be apposite and correct:-

" As against this the learned Advocate for the

petitioner urges that the fundamental rights are under

the Constitution in a paramount position, that under

Art.

13 the Legislatures of the country have no power

to abrogate or abridge them, that the power to tax is

the power to destroy

and that, therefore, part 12 is

inoperative

in respect of the rights conferred under

Part III. I am unable to agree. Art. 13 on which

this

argument is mainly founded does not support such

a wide contention.

It applies in terms only 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

docs not apply to the Constitution itself. It does not

enact that the other portions of the Constitution should

be void as against

the provisions in Part III and it

would be surprising if it did, seeing that all of them

(1) A.1.R. (1952) Mad. 395, 405.

Das C. ].

860 SUPREME COURT REPORTS (1959) Supp.

'95

8

are parts of one organic whole. Article 13, therefore,

P d·e cannot be read so as to render any portion of the Con-

M. s. ;~;harm• stitution invalid. This conclusion is also in accordance

v. with the principle adopted in interpretation of statutes

Shri Sri Krishna that they should be so construed as to give effect

§inha and 01hers and operation to all portions thereof and that a con-

- struction which renders

any portion of them inopera-D•s c. J. tive should be avoided. For these reasons I must hold

that the operation of Part 12 is not cut down by Part

III and that the fundamental rights are within the

powers of the taxation by the State."

Article 19(l)(a) and Art. 194(3) have to be reconciled

and the only way of reconciling the same is to read

Art. 19(l)(a) as subject to the latter part of Art. 194(3),

just as Art. 31 has been read as subject to Art. 265 in

the cases of Ramjilal v. Income-tax Officer, Mohin­

dargarh (

1

)

and Laxmanappa Hanumantappa v. Union

of India ('), where this

Court has held that Art. 31(1)

has to be read as referring to deprivation of property

otherwise than by way of taxation. In the light of

the foregoing discussion, the observations in the

Madhya Bharat case (

3

)

relied on by the petitioner, can­

not,

with respect, be supported as correct.

Our decision

in Gunupati Keshavram Reddy v. Nafisul Hasan('),

also relied on by learned advocate for the petitioner,

proceeded entirely on a concession

of counsel and

cannot be regarded as

a considered opinion on the

subject. In our judgment the principle of harmonious

construction must be adopted and so construed, the

provisions of Art. 19(l)(a), which are general, must

yield to Art. 194(1) and the latter part of its cl. (3)

which are· special. .

Seeing

that the present proceedings have been

initiat­

ed on a petition under Art. 32 of the Constitution and

as the petitioner may not be entitled, for. reasons

stated above, to avail himself of Art. l9(1Xa) to

support this application, learned advocate for the

petitioner falls back upon Art. 21 and contends that

the proceedings before the Committee of PriYileges

threaten to deprive him of personal liberty otherwise

(1) [1951] S.C.R. 127. (2)(1955] I S.C.R. 76<).

(3) A.LR. (1952) M.B. 31, 43, (4) A.I.R. (1954) S.C. 636.

(1) S.C.R. SUPREME COURT REPORTS 861

than in accordance with procedure established by law. x95s

The Legislative Assembly claims that under Art. P d.

1

194(3) it has all the powers, privileges and immunities M. s. ;~ 5~,.,, ••

enjoyed by the British House of Commons at the com- v.

mencement of our Constitution. If it has those powers, Shri Sri Krlsll ..

privileges and immunities, then it can certainly en-Ssnha ••d Otlt.,,

force the same, as the House of Commons can do. Das c. J.

Article 194(3) confers on the Legislative Assembly

those powers, privileges

and immunities and Art.

208

confers power on it to frame rules. The Bihar Legis-

lative Assembly

has framed rules in exercise of its

powers under

that Article. It follows, therefore, that

Art. 194(3) read with the rules so framed has laid

down

the procedure for enforcing its powers, privileges

and immunities. If, therefore, the Legislative Assem-

bly has the powers, privileges and immunities of the

House of

Commons and if the petitioner is eventually

deprived of his personal liberty

as a result of the pro-

ceedings before

the

Committee of Privileges, such

deprivation will be in accordance with procedure esta-

blished

by law and the petitioner cannot complain of

the breach, actual or threatened, of his fundamental

right under Art. 21.

.

We now proceed to consider the other points raised

by learned counsel for the petitioner. He argues that

assuming that the Legislative Assembly has the

powers, privileges and immunities it claims and that

they override the fundamental right of the petitioner,

the Legislative Assembly, nevertheless, must exercise

those privileges

and immunities in accordance with

the standing orders laying down the rules of procedure

governing

the conduct of its business made in exercise

of powers under Art.

208. Rule 207 lays down the

conditions as to the admissibility of a motion of privi­

lege. According to cl. (ii) of this rule the motion must

relate to a specific matter of recent occurrence. The

speech was delivered on May 30, 1957, and Shri Nawal

Kishore Sinha M.L.A. sent his notice of motion on

June 10, 1957, that is to say, 10 days after the speech

had been delivered. The matter that occurred 10 days

prior to the date of the submission of the notice of

motion cannot be said to be a specific matter of recent

}'andit

1\1. S. Al. Shanna

v.

Shri Sri Iish11a

SiHha a11d Others

Das C.j.

862 SUPREME COURT REPORTS [1959] Supp.

occurrence.

It is impossible for this Court to prescribe

a particular period for moving a privilege motion so

as to make the subject matter of the motion a specific

matter of recent occurrence. This matter must

obviously be left to the discretion of the Speaker of the

House of Legislature to determine whether the subject

matter of the motion is or is not a specific matter of

recent occurrence. The copies of the proceedings

marked as Annexure D in Annexure III to the peti­

tion do not disclose that any objection was taken by

any member on the ground that the matter was not a

specific

matter of recent occurrence.

VI' e do not con­

sider that there is any substance in this objection.

Reference is

then made to rr.

208 and 209 which

lay down the procedure as to what is to happen if any

objection is taken to leave beiug granted to the mover

to move his motion. It is said that Shri Ramcharitra

Sinha !ILL.A. had raised an objection to leave being

granted to Shri Nawal Kishore Sinha to moYe the pri­

vikge motion. This allegation in the petition docs

not appear to be borne out by the account of proceed­

ings in the House to which reference has been made.

~hri Hamcharitra Sinha only wanted to know the

conn~ntion refating to the question of admissibility of

such a motion and the Speaker accordingly read out

el. (ii) of r. 208. Afkr that Shri Ramcharitra Sinha

did uot say anything further. The Speaker then sttid

that he uuderstood that there was no opposition in the

matter and, therefon', the Hon'ble member was to be

understood

as having received the leave of the House _and called upon him to say what he wanted to say.

Tlwreupon, as stated earlier, Shri Karpuri Thakur

nnted to know what had bPen published in the

l:learchlight of May 31, l!l57, and what ought not to

ha Ye been published. The Speaker thereupon read

out the notice submitted by Shri Nawal Kishorc Sinha

which concisely referred to the subject matter of the

motion and contained a reference to the issue of the

Searchlight of May 31, 1957, a copy of which was filed

along with

the notice. After the notice had been read

the

SpeakP.r permitted Shri Nawal Kishore Sinha to

move his privilege motion, which

the latter did. There

(I) S.C.R. SUPREME COURT REPORTS 863

was no amendment proposed and the Speaker then r95B

stated what the question before the House was. No-p--:i·,

body having indicated his opposition, he declared the M. s. ~~ s~anna

motion to be carried. There was, in the circumstances, v.

no non-compliance with the provisions of r. 208 read Shri Sri f(rishna

with r. 209. Sinha and Others

The next argument founded on non-compliance with

the rules is based on r. 215. Clause (i) of that rule

provides

that the

Committee of Privileges should meet

as soon as may be after the question has been referred

to it and from time to time thereafter till a report is

made within the time fixed by the House. In this case

the House admit~edly did not fix a time within which

the report was to be made by the Committee of Privi-

leges. This circumstance immediately attracts the

proviso, according to which where the House does not

fix

any time for the presentation of the report, the

report has to be presented within one month of the

date on which the reference to the

Committee was

made. Learned advocate for

the petitioner argues

that one month's time had long gone past and, there-

fore,

the

Committee of Privileges became functus officio

and cannot, under the rules, proceed with the refer-

ence. There is no substance in this contention, because

the second proviso to cl. (i) of r. 215 clearly provides

that the House may at any time on a motion being

made direct

that the time for the presentation of the

report by the

Committee be extended to a date speci-

fied in

the motion. The words

"at any time" occur-

ring in the second proviso quite clearly indicate that

this extension of time may be within the time fixed by

the House or, on its failure to do so, within the time

fixed by

the first proviso or even thereafter, but before

the report is actually made or presented to the House (Cf. Raja Har Narain Singh v. Chaudhrain Bhagwant

J{ uar) (1). :Further, the question of time within which

the Committee of Privileges is to make its report to

the House is a matter of internal management of the

affairs of the House and a matter between the House

and its Committee and confers no right on the party

whose conduct is the subject matter of investigation

(1) (1891) L.R. 18 I.A. 55, 58.

Das C. ).

Pandit

ll1. S. M. Sharma

v ..

Shri Sri Krishna

Sinha and OJ!urs

Das C. ].

864 SUPREME COURT REPORTS [1959] Supp.

and this is so particularly when the House has the

power to extend time "at any time".

The next argument is that the Committee cannot

proceed to investigate what has not been referred to

it. Heference is made to the resolution of the Com­

mittee (Annexure II to the petition) and the notice

issued

to the petitioner (Annexure I to the petition).

It is said that

while

1

the Committee's resolution speaks

of publishing " a perverted and unfaithful report of

the proceedings of the Assembly relating to the speech

of Maheshwar Prasad Narayan Sinha M.L.A." includ­

ing the expunged portion thereof, the notice simply

refers to "a question involving breach of privilege of

the Bihar Legislative Assembly arising out of the

publication of the news item" and calls upon the peti­

tioner to show cause why

appropriate action should

not be recommended against him

" for breach of privi­

lege

of the Speaker aii.d the

Assembly". We fail to

perceive how the two documents can be read as re­

ferring to two different charges. The notice served on

the petitioner is couched in terms which cover the

matters referred to in the Committee's resolution. The

effect in law of the order of the Speaker to expunge a

portion

of the speech of a member may be as if that

portion had not been spoken. A report of the

whole

speech in such circumstances, though factually correct,

may, in law, be regarded as perverted and unfaithful

report and the publication of such a perverted and un­

faithful report of a speech, i.e., including the expung­

ed portion

in derogation to the orders of

the Speaker

passed in

the House may, primafacie, be regarded as

constituting a breach of the privilege of the House

arising

out of the publication of the offending news item

and that is precisely the charge that is contemplated

by the Committee's resolution and which the petitio­

ner is by the notice called upon to answer. We prefer

to express no opinion as to whether there has, in fact,

been

any breach of the privilege of the House, for of

that the House alone is the judge.

The next argument urged by learned advocate for

the petitioner is that, after the House had referred the

matter to the committee of

privileges, nothing was

(1) S.C.R. SUPREME COURT REPORTS 865

done for

about one year, ai1d after such a lapse of

time the committee has suddenly woke

up and resus- Pandit

citated the matter only with a. view to penalise the M. s. M. Sha11na

petitioner. In paragraph 17 of the petition the charge .. ~· .

of mala fides is thus formulated :-

5

~" Sri K11Slma

17 Th h C

. te f p . .

1

.c "d Sinha and Others

" . at t e omm1t e o riv1 eges a1oresa1 _

is proceeding against the petitioner mala fide with a Das c. J.

view to victimise and muzzle him since the petitioner

has been through his newspaper unsparingly criticis-

ing

the administration in the

State of Bihar of which

opposite

party No. 1 is the

Chie~ Minister."

It will be noticed that the allegation of mala fides is

against the Committee of Privileges and not against

the Chief Minister and, therefore, to controvert this

allegation

an affidavit affirmed by the Secretary to the

Bihar Legislative Assembly has been filed. In the

affidavit in reply reference is made to certain issues of

the Searchlight indicating that charges were being

made by the paper against the

Chief Minister and the

suggestion is that it is at the instance of the Chief

Minister that the Committee has now moved in the

matter. This is a new allegation. That apart, the

Chief Minister is but one of the fifteen members of the

Committee and one of the three hundred and nineteen

members of

the House. The Committee of

Privileges

ordinarily includes members of all parties represented

in

the House and it is difficult to expect that the

Com­

mittee, as a body, will be actuated by any mala fide

intention against the petitioner. Further the business of

the Committee is only to make a report to the House

and the ultimate decision will be that of the House

itself.

In the circumstances, the allegation of bad faith

cannot be readily accepted. It is also urged that the Chief Minister should not take part in the proceedings

before

the

Committee because he has an interest in the

matter and reference is made to the decision in Queen

v. Meyer (1). The case of 'bias of the Chief Minister

(respondent

2) has not been made anywhere in the

petition and we do not think it would be right to

per­

mit the petitioner to raise this question, for it depends

(I) L.R. (1876) I Q.B.D. 1]3.

109

866 SUPREME COURT REPORTS [1959] Supp.

r958 on facts which were not mentioned in the petition but

. were put forward in a rejoinder to which the respon-

M

5

P;/~': dents had no opportunity to reply.

· · ;. arma Finally, the petitioner denies that the expunged

Shri Sri Krishna portions have been published. We do not think we

Sinha and Others should express any opinion on this controversy, at any

Das C.j.

Subba Rao }.

rate, at this stage. If the Legislative Assembly of

Bihar has the powers and privileges it claims and is

entitled to

take proceedings for breach thereof, as we

hold it is, then it must be left to the

House itself to

determine whether th~re has, in fact, been any breach

of its privilege. Thus, it will be for the House on the

ad vice of its Committee of Privileges to consider the

true effect of the Speaker's directions that certain por­

tions of the proceedings be expunged and whether the

publication

of the speech, if it has included the portion

which

had been so directed to be expunged, is, in the

eye

of the law, tantamount to publishing something

which

had not been said and, whether such

a publica­

tion cannot be claimed to be a publication of an accu­

rate and faithful report of the speech. It will, again,

be for

the House to determine whether the Speaker's

ruling made distinctly

and audibly that

a portion

of the proceedings be expunged amounts to a direc­

tion to the Press reporters not to publish the same,

and whether the publication of the speech, if it

has included the portion directed to be so expunged, is

or is not a violation of the order of the Speaker and a

breach of the privilege of the House a.mounting to a

contempt

of the

Speaker and the House.

]'or reasons stated above we think that this petition

should

be dismissed. In the circumstances, there will

be no order for costs. SuBBA RAo, J.-I have had the advantage of perus-

ing

the well considered judgment of my Lord the

Chief

Justice. It is my misfortune to differ from him and

my learned brethren. I would not have ventured to

do so but for my conviction that the reasoning adopt·

ed therein would unduly restrict and circumscribe the

wide scope and content of one of the cherished funda­

mental rights, namely, the freedom of speech in its

application to the Press.

(l} S.C.R. SUPREME COURT REPORTS 867

This is an application under Article 32 of the Con- r95B

stitution for quashing the proceedings before the Com- .

mittee

of

Privile.g~s of the Bihar Legisla_tive Assembly M. s.P;n~:.arma

and for · restrammg the respondents, I.e., the Chief v.

Minister of Bihar and the said Committee of Privi-Shri Sri Krishna

leges, from proceeding against the petitioner for the Sinha and Others

publication in the issue of the "Searchlight " dated

May 31, 1957, an account of the debate in the House Subba Rao J.

(The Legislative Assembly, Bihar) on May 30, 1957,

and for other incidental reliefs. The petitioner, Pandit

M. S. M. Sharma, is the editor of the "Searchlight'',

an English daily newspaper published from Patna in

the State of Bihar. On May 30, 1957, Shri Maheswara

Prasad Narayan Singh, a member of the State Assem-

bly made a bitter attack in the Assembly on the Chief

Minister, Shri Sri Krishna Sinha, and on Shri Mahesh

Prasad Sinha, a minister in the previous cabinet, who

was defeated

at the last General Elections. It is said

that in regard to that speech the

Speaker gave a rul-

ing that certain portions thereof should be expunged

from

the proceedings. In the issue of the

" Search-

light" dated May 31, 1957, an accurate and faithful

account of the proceedings of the Bihar Legislative

Assembly

of May 30, 1957, was published under the

caption

"BITTEREST ATTACK ON CHIEF MINIS-

TER". It was also indicated in the report that the

Speaker had disallowed the member to name Mr.

Mahesh

Prasad

Sinha in respect of the Ministry forma-

tion and confined him to his remarks in regard to his

chairmanship of the Khadi Board. It is alleged in the

affidavit that till May 31, 1957, it was not known to

any member of the staff of the "Searchlight", includ-

ing

the petitioner, that any portion of the debate in

question

had been expunged from the official record of

the

AsRembly proceedings of May 30, 1957, and that in

fact the petitioner did not publish the expunged re-

marks. This fact was denied by

the respondents in

their counter, but it was not alleged that the

Speaker

made any specific order or gave any direction prohibit-

ing the publication of any part of the proceedings of

the Assembly in any newspaper. On June 10, 1957,

Shri Nawal Kishore Sinha moved a privilege motion-

'

868 SUPHEl\IE COURT REPOltTS [l!J59] Supp.

1

95

8 in

the House and it was carried, as, presumably, no

Pandit one had opposed it. 011 the same day, the House re-

. , ., forred the matter to the Committee of Privileires with-

,11. ,S. ,d . .Sr1arma .._,

v. out fixing any date for the presentation of the report

Shri S•i l<rUma of the Committee. The Committee in due course. held

s;""" and Otltm its meeting presided over by the Chief Minister and

- found that a prima jacie case of breach of privilege

Subbu Uao ].

hat! been made out against the petitioner. Then, the

Secretary to the Legislative Assembly issued a notice

to the petitioner informing him of the fact that the

Committee had found a prima facie case of breach of

privilege made out against him and asking him to

show cause, if any, on or before September 8, 1958,

why

appropriate action

should not lie taken against

him. Along with that not.ice, a copy of the motion as

adopted

by the

Committee of Privileges in its meeting

held

on August IO, 1958, and a copy of a booklet

con­

taining a collection of the papers relating to the privi­

lege motion moved by Shri Nawal Kishore Sinha,

M.L.A., on June IO, 1957, wer·c enclosed for ready

reference. The booklet accompanying the notice con­

tained the motion moved in the House, the report pub­

lished in the "Searchlight" dated May 31, 1957, and

the rules oft.he Assembly. relating to t.lie Committee of

Privileges. Though there was some argument on the

construction of the terms of the resolution passed by

the Committee on account of the unhappy language

in which

it was couched, .it is manifest that the breach

of privilege pleaded was that the petitioner, by

includ­

ing the expunged portion of the speech of Maheshwar

Prasad Narayan Singh, published a perverted and

unfaithful report of the proceedings of the Assembly.

The petitioner, thereafter, filed a petition under Art. 32

of the Constitution for the aforesaid reliefs.

On the aforesaid facts, the learned Counsel for the

petitioner, raised the following points in support

of the petition: (I) The petitioner, as a citizen of

India, has the fundamental right under Art .. 19 (I) of

the Constitution to freedom of speech and expression,

which includes

the freedom of propagation of ideas

and their publication and circulation ; and the

Legis­

lature of a State cannot claim a privilege in such a

.. •

(1) S.C.R. SUPHEME COURT HEPOHTS 869

way as to infringe

that right. This contention is put

in two ways: (i) The privilege conferred on the

Legis­

la.ture of a State is subject to the freedom conferred on

a citizen under

Art. 19 ( l) of the Constitution ; and

(ii) that even if the privilege was not expressly made

subject to the fundamental right under Art. 19 (I),

having regard to the

n·ature of the fundamental right

and the rules of interpretation, this Court should so

construe the provisions as to giv,e force to both the

provisions. (2) Even if Art. 194 (3) overrides the

provisions of Art. 19,

the powers, privileges and

immu­

nities of the House of Legislature arc only those of the

House of Commons of the Parliament of the United

Kingdom, at the commencement of the Constitution,

i. e., January 26, 1950; and the House of Commons

on that date had no privilege to prevent the publica­

tion of its proceedings or portion expunged by the

Speaker in respect of the proceedings. (3) Under Art.

21 of the Constitution, no person is to be deprived of

his personal liberty except in accordance with the pro­

cedure established by Jaw and that the Privilege Com­

mittee, by calling upon the petitioner to appear at the

Bar of the Legislatu!e after making an enquiry in vio­

lation of the rules, particularly the rr. 207 (2), 208 (3)

and 215 of the rules of the Assembly relating to the

Committee of Privileges, has infringed his right under

that Article. ( 4) Mr. laheshwara, Prasad Karayan

Singh made a bitter attack on the Chief l\Iinister and

that report was published in the "Searchlight". The

Chief Minister, who has admittedly control over the

Legislature or at any rate over the majority of the

members of the Assembly, was actuated by mala fides

in securing 'the initiation of the proceedings against

the petitioner for breach of privilege, and therefore

his presiding over the meeting of the Sub-Committee

would vitiate its entire proceedings. (5) The Committee

of Privileges enquired into an allegation not referred

tu it by the House. The learned Solicitor General,

appearing for the respondents, countered the said

arguments and his contentions may be summarized

thus: Under the Constitution, no particular Article

has rnure sanctity than the other, even though that

P<mdit

M. S. 1\1. Sharma

v.

Shri Sri Krishna

Sinha and Others

Sttbba Rao ].

870 SUPREME COURT REPORTS [1959] Supp.

'95

8

Article deals with fundamental rights. Article 194 (3)

Pandit is not made subject to Art. 19 of the Constitution, and,

M. s. JI. Sharma therefore, if the House of Commons of the Parliament

v. of the United Kingdom has the power or privilege to

Shri Sri l(dshna prevent the publication of its proceedings, or at any

Sinha and Others rate of the expunged portions of it, the Legislatnre of

- a State in India has also a similar privile

0

ae or power

Subba Rao ].

and it can exercise it, notwithstanding the fact that

it infringes the fundamental right of a citizen. The

House of Commons of the United Kingdom has such a

privilege

and therefore the Legislature of Bihar can

exercise it and take action against the person

commit­

ting a breach thereof. While a Court of Law can

decide on the question of the existence and the extent

of the privilege of a House, it has no power or juris­

diction to consider whether a particular person in fact

committed a breach thereof.

The Legislature in this

case has not broken any of the rules of the Assembly

relating to the Committee of Privileges, and even if

it did, by reason of Art. 212 (1) of the Constitution,

the validity of its proceedings cannot be questioned on

the ground of any alleged irregularity of the

proce­

dure. There was no allegation in the petition that the

Committee

or the Assembly was actuated by mala

fides

and even if the

Chief Minister was acting with

mala fides-which fact was denied-, the proceedings

of the Committee or of the Legislature, which is the

final authority in the matter of deciding whether

there was a breach of privilege, would not be vitiated.

It was also denied that the Committee of Privileges

enquired into any allegation not referred to it by the

House.

At

the outset it would be convenient to clear the

ground of the subsidiary ramifications falling outside

the field of controversy and focus on the point that

directly arises in this case. We are not concerned

here

with the undoubted right of a

State Legislature

to control and regulate its domestic affairs. In " Cases

in Constitutional Law" by Keir and Lawson, it is

stated, at page 126, as follows :

"The undoubted privileges of the House of Com­

mons are of three kinds. They include (i) exclusive

(1) S.C.R. SUPREME COURT REPORTS 871

jurisdiction over all questions which arise within the

walls of the house, except, perhaps, in case of felony ...

........................................................................

(ii) Certain personal privileges which attach to mem­

bers of Parliament. The most important

of these are

freedom of debate,

a.nd immunity from civil arrest

during the sitting of Parliament and for forty days

before

and after its assembling ............................. .

'

That the freedom of speech and debates or proceed­

ings in

Parliament ought not to be impeached or

questioned in

any

Court or place out of Parliament'.

(iii) The power of executing decisions on matters of

privilege by committing members of Parliament, or

any other individuals, to imprisonment for contempt

of the House."

Nor we are called upon to decide on the scope of a

Court's jurisdiction to set aside the orders

of contempt

made by

the Legislature or warrants issued to imple­

ment the said orders. Reported decisions seem to

suggest

that if the order committing

a person for con­

tempt or the warrant issued pursuant thereto discloses

the reasons, the Court can decide whether there is a

privilege

and

also its extent; but, when it purports to

issue a bald order, the Court has no power to decide,

on

the basis of other evidence, whether in fact

a breach

of privilege is involved. As this question does not

arise in this case, I need not express any opinion there­

on.

The stand taken by the Legislature, as disclosed

in

the notice issued, the enclosed records sent to the

petitioner, in

the counter-affidavit filed and the argu­

ments advanced by the respondents, is

that the Legis­

lature of a State has the privilege to prevent any

citizen from publishing the proceedings of the Legisla­

ture or at any rate such portions of it as are ordered

to be expunged

by the Speaker,

and therefore it has a

right to take action against the person committing a

breach of such a privilege. The main question, there­

fore,

that falls to be decided is whether the Legislature

has such

a privilege. If this question is answered

against the Legislature, no other question arises for

consideration.

Pandil

M. S. M. Sharma

v.

Shri Sri Krishna

Sinha and Othets

S11bba Rao ] .

872 SUPREME COURT REPORTS [1959] Supp.

I95

8

The powers, privileges, and immunities of a State

;;;::;lit Legislature are governed Ly Art. 194 of the Constitn-

M. s. M. Sharma tion and the freedom of propagation of ideas, their

v. publication and circulation by Art. 19(l)(a) thereof.

Shri Sri Krishna For convenience of reference, both these articles may

Sinha and Othm Le read in juxtaposition. ·

Subba Rao J. Article 19 reads : .

"(1) All citizens shall have the right-

( a) to freedom of~peech and expression;

(2) Nothing .in sub-clause (a) of clause (I) sha.11

affect the operation of any existing law, or prevent

the State from making any law, in so far as such law

imposes reasonable restrictions on

the exercise of the

right conferred by the said sub-clause in the interests

of the security of the

State, friendly relations with

foreign States, public order, decency or morality, or in

relation to

contempt of court, defamation or incite­

ment to an

offence."

Article 194 states :

"(1) Subject to the provisions of this Constitution

and to the rules and standing orders regulating the

procedure of the Legislature, there shall be freedom of

speech in the Legislature of every State.

(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, pa per, 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

the Parliament of the United Kingdom, and of its

members

and committees, at the commencement of

this

Const~tution.

(1) S.C.R. SUPREME COURT REPORTS 873

(4) The provisions of clauses (1), (2) and (3) shall 1958

apply in relation to persons who by virtue of this a·

Constitution have the right to speak in, and otherwise M. s. ~~.:~arma

to take part in the proceedings of, a House of the v.

Legislature of a State or any committee thereof as Shri Sri Krishna

they apply in relation to members of that Legisla-Sinha and Others

tu re."

In Romesh Thappar v. The State of Madras (

1

), this Subba Rao f.

Court ruled that freedom of speech and expression

includes freedom

of propagation of ideas and that

freedom is ensured by the freedom of circulation.

This freedom is, therefore, comprehensive enough to

take in the freedom of the press. The said view is

accepted

and followed in Brij Bhushan v. The

State of

Delhi (

2

). To the same effect is the decision of this

Court in Express Newspapers Ltd. v. Union. of India (

3

),

where Bhagwati, J., delivering the judgment of the

Court, held that freedom of speech and expression in-

cludes within its scope

the freedom of the

Press. In

Srinivasan v. The State of Madras(') it was held, on

the basis of the view expressed by this Court, that the

terms " freedom of speech and expression " would

include

the liberty to propagate not only one's own views but also the right to print matters which are not

one's own views

but have either been borrowed from

someone else or

are printed under the direction of that

person. I would, therefore,

. proceed to consider the

argument advanced on the basis· that the freedom of

speech in Art. 19(1)(a) takes in also the freedom of the

Press in the comprehensive sense indicateq by me

supra.

The importance of the freedom of speech in a

democratic country

cannot be over-emphasized, and

in recognition thereof, cl. (2) of Art. 19 unlike other

clauses of

that Article, confines the scope of the restric-

tions on

the said freedom within comparatively narro-

wer limits.

Clause (2) enables the State to impose

reasonable restrictions

on the

extlrcise of the said right

in the interest of the security of the State, friendly rela-

tions with foreign States, public order, decency or

(1) [1950] S.C.R. 594. (2) [1950] S.C.R. 605.

(3) [1959] S.C.R 12, 118. (4) A.LR. (1951) Mad. 70.

110

874 SUPREME COURT REPORTS (1959) Supp.

1958 morality, or in relation to contempt of Court defama­

tion or incitement to an offence. The said Article

Pandit finds place in Part III under the heading "Funda-

M. s. M~.Sharma mental Bights". Article 13 makes laws that are

Shri S•i T<.ishna inconsistent with or in derogation of the fundamental

Sinha and Others rights void and clause (2) thereof expressly prohibits

the State from mal1ing laws in contravention of the

Subba Rao J. said rights. In the words of Patanjali Sastri, C. J., the

said rights in Part III are "rights reserved by the

people after delegation of the rights by the people to

the institutions of government". It is true, nnd it

cannot be denied, that notwithstanding the transcen­

dental nature of the said rights, the Constitution

may empower the Legislature to restrict the scope of

the said rights within reasonable bounds, as in fact it

did under els. (2) to (6) of Art.. 19. Such restrictions

may be by express words or by necessary implication.

Bu't the Court would not and should not, having re­

gard to the nature of the rights, readily infer such a

restriction unless there are compelling reasons to do so.

The Constitution

adopted different and well-under.

stood phraseology to resolve conflicts and

prevent

overlapping of various provisions.

Some Articles are

expressly made subject to the provisions of the Con­

stitution-vide Arts. 71(3), 73(1 ), 105, 131, etc.-, and

some to specified Articles-vide Arts. 81, 107(1), 107(2)

114(3), 120(1), etc. Some Articles are made effective

notwithstanding other provisions in. the Constitution

-vide Arts. 120(1), 136(1), 143(2), 169(1), etc. Where

the Constitution adopts one or other of the said two

devices,

its intention is clear and unambiguous; but,

there are other Articles which are not expressly made

subject to provisions of the

Constitution or whose

operation is

not made effective notwithstanding any

other provisions. In such cases,

a duty is· cast upon

the Court to ascertain the intention of the Constituent

Assembly. Cooley in his "Constitutional Law"

points out that " however carefully constitutions may

be made, their meaning must be often drawn in q1ies­

tion ". He lays down, at page 427, the following rule,

among others,

as

a guide to the construction of these

ilrnt.rnments:

(1) S.C.R. SUPREME COURT REPORTS 875

"The whole instrument is to be e~amined, with a

1

95

8

view of determining the intention of each part.

More- P d.

1

over, effect is to be given, if possible, to the whole in- M. s. ;~ dhanna

strument, and to every section and clause. And in v.

interpreting clauses it must be presumed that words Shri s,; I<rishna

have been used in their natural and ordinary mean-Sinha and Others

ing."

1 1 d f

SubbaRao ].

The ru e may a so be stated in a ifferent way : I

two Articles appear to be in conflict, every attempt

should be made to reconcile them or to make them to

co-exist before excluding

or rejecting the operation of

one.

Article

194(3} of the Constitution, with which we

are concerned, does not in express terms make that

clause subject to the provisions of the Constitution or

to those of Art. 19. Article 194 has three clauses.

The first clause declares

that there shall be freedom of

speech in the Legislature of every State and that

freedom is expressly made subject to the provisions of

the Constitution and to the rules and the standing

orders regulating

the procedure of the Legislature.

Clause

(2) gives protection to members of the Legisla­

ture of a

State from any liability to any proceedings

in any Court in respect of anything said or any vote

given by him in

the Legislature or any committee

thereof and to every person in respect of

the publica­

tion

by or under the authority of a House of such a

Legislature of

any report, paper, votes or procedure.

The third clause, with which we are now directly con­

cerned, confers upon a House

of the Legislature of a

State and of the members and the committees thereof

certain powers, privileges

and immunities. It is in

two parts. The first part says that the powers,

privileges

and immunities of a House of the Legis­

lature 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 the second part declares that

until so defined, they shall be those of the House of

Commons of the Parliament of the United Kingdom

and its members and committees, at the commence­

ment of the Constitution. The question is whether

876 SUPREME COURT REPORTS [1959] Supp.

1938 this clause confers on the Legislature powers, privile­

ges

and immunities so as to infringe the fundamental M

5

P;'~~ right of a citizen under Art. 19(l)(a) of the Constitu-

. · v". arma tion. The first thing to be noticed is that while Art.

Shri Sri Krishna 19(l)(a) of the Constitution deals with the freedom of

Sinha and 01hers speech and expression of a citizen, Art. 194(1) declares

that there shall be freedom of speech in the Legisla-

Subba Rao J. ture of every State While Art. 19(1) is general in

terms and is subjecf only to reasonable restrictions

made under clause (2) of the said Article, Art. 194(1)

makes

the freedom of speech subject to the provisions

of the Constitution and rules and standing orders

regulating

the procedure of the Legislature.

Clause (2)

flows from cl. (1) and it affords protection from lia­

bility to any proceedings in a Court for persons in

respect of the acts mentioned therein. But these two

provisions do

not touch the fundamental right of a

citizen to publish proceedings which he is

entitled to

do under Art. 19(1) of the Constitution. That is dealt

with by cl. (3). That clause provides for powers,

privileges

and immunities of a House of the

Legisla­

ture of a State and of the members and the commit­

tees of a Ho.use, other than those specified in cl. (2).

It is not expressly made subject to the provisions of

the Constitution. I find it difficult to read in that

clause the opening words of cl. (1), viz., "subject to

the provisions of this Constitution ", for two reasons:

(i) cl. (3) deals with a subject wider in scope than cl.(l)

and therefore did not flow from cl. (1); and (ii) gram­

matically it is not possible to import the opening

words

of cl. (I) into cl. (3). Therefore, I shall proceed

on

the basis that cl. (3) is not expressly made subject

to Art. 19

or expressly ma.de independent of other

Articles of the Constitution. We must, therefore,

scru­

tinize the provisions of that clause in the context of

the other provisions of the Constitution to ascertain

whether by necessary implication it excludes .the

operation of Art. 19. The first thing to be noticed in

cl. (3) of Art. 194 is that the Constitution declares that

the powers, privileges and immunities of a House of

Legislature of a. St&te and of the members a.nd com­

mittees of a House of such Legislature a.re such as

(1) S.C.R. SUPREME COURT REPORTS 877

defined by the Legislature by law.

In the second

I95B

part, as a t~ansitory measure, it directs that till they Pa,,ail

are so defined, they shall be those of the·House of M .s. M. Sharma

Commons of the Parliament of the United Kingdom v.

and of its members and committees, at the commence-Sh•i Sri Krishna

ment of the Constitution. I find it impossible to accept Sinha ana Others

the contention that the second part is not a transitory -.

Subba Rao ].

provision; for, the said argument is in the teeth of the

express words used therein. It is inconceivable that

the Constituent Assembly, having framed the Con-

stitution covering various fields of activity in minute

detail, should have

thought fit to leave the privileges

of the Legislatures in such a vague and nebulous posi-

tion compelling

the Legislatures to ascertain the con-

tent of their privileges from those obtaining in the

House

of Commons at tlie commencement of the

Con-

stitution. The privilege of the House of Commons is

an organic growth. Sometimes a particular rule

persists in

the record but falls into disuse in practice.

Privileges, just like other branches

of common law,

are results of compromise depending upon the particu-

lar circumstances of a given situation. How difficult

it is to ascertain the privilege of the House of

Com-

mons and its content and extent in a given case is

illustrated by this case.

Reliance is placed upon other Articles of the Con­

stitution in support of the contention that the second

part of cl. (3) is not intended to be transitory in nature.

Under Art. 135 of the Constitution, until Parliament

by law otherwise provides, the Supreme Court shall

have certain appellate jurisdiction. Under Art. 137,

subject to

the provisions of any law made by

Parlia­

ment or any rules made under Art. 145, the Supreme

Court shall have power to review any judgment pro­

nounced or order made by it. Article 142(2) says:

"Subject to the provisions of any law made in this

behalf by Parliament, the Supreme C6urt shall, a.s

respect the whole of the territory of India., have all

and every power to make any order for the purpose

of securing

the attendance of any person, the discovery

or production

of any documents, or the investigation

or punishment of

any contempt of

itself." Article 145

878 SUPREME COURT REPORTS [1959] Supp.

1

95

8

reads: "Subject to the provisions of any law made

P d't by Parliament, the Supreme Court may from time to

M. s. IV~~s~arma time, with the approval of the President, make rules

v. for regulating generally the practice and procedure of

Shri Sri Krishna the Court ......... ". Under Art. 146(2), "Subject to

Sinha and Othm the provi~ions of any lavy made by Parliament, the

- conditions of service of officers' and servants of the

Subba Rao ].

Supreme Court shall be such as may be prescribed by

rules made by the Chief Justice of India or by some

other Judge or officer of the Court authorised by the

Chief Justice of India to make rules for the purpose."

Under Art. 187(3), "Until provision is made by the

Legislature of the State under clause (2), the Governor

may,

after consultation with the

Speaker of the Legis­

lative Assembly or the Chairman of the Legislative

Council,

as the case may be, make rules regulating

the recruitment, and the conditions of service of pet.

sons appointed, to the secretarial staff of the Assembly

or the Council, and any rules so made shall have effect

subject to

the provisions of any Jaw made under the

said

clause". Clause (2) of Art. 210 says "Unless the

Legislature of the State by law otherwise provides,

this article shall,

after the expiration of

a period of

fifteen years from the commencement of this Constitu­

tion, have effect as if the words 'or in English' were

omitted therefrom."

I do not see any analogy between the first part of

Art. 194(3) and the provisions of the aforesaid Arti­

cles. Firstly, the said Articles do not import into

India the Jaw of a foreign country ; secondly, they

either make the existing law subject to the provisions

of any faw made by Parliament, or declare a particu­

lar law to be in force unless modified by Parliament ;

whereas in Art. 194(3)

the

Constitution expressly de­

clares that the Jaw in respect of powers, privileges and

immunities is that made by a House of the Legislature

from

time to time and introduces

a rider as a transi­

tory measure that till such Jaw is made, the powers,

privileges

and

immunit.ies of the House of Commons

should be those

of the Legislature also. I have no

doubt, therefore,

that part two of cl. (3) of Art. 194 is

intended

to be

a transitory provision and ordinarily,.

(1) S.C.R. SUPREME COURT REPORTS 879

unless there is a clear intention to

the contrary, it

cannot be given a higher sanctity

than that of the

first part of cl. (3). The first part of cl. (3) reads :

•

Pandit

M. S. M. Sharma

" In other respects, the powers, priv.ileges and v.

immunities of a House of the Legislature of a State, Shri Sri f(rishna

and of the 'members and the committees of a House Sinha and _Otlters

of such Legislature, shall be such as may from time Subha Rao J.

to time be defined by the Legislature by law ......... ".

Article 245 enables a State to make laws for the

whole or any part of the State. Article 246(3) pro­

vides that the Legislature of any State has exclusive

power to make laws with respect to

any of the matters

enumerated in List II in the

Seventh Schedule (in the

Constitution referred to as the " State List"). Item 39

of List II of the Seventh Schedule enumerates the

following matters among others: "Powers, privileges

and immunities of the Legislative Assembly and of

the members and the committees thereof.. ........ ".

Clause (2) of Art. 13, which is one of the Articles in

Part III relating to fundamental rights, prohibits the

State from making any law which takes away or

abridges the rights conferred by that Part and declares

that any law made in contravention of that clause

shall to

the extent of the contravention be void. It

is, therefore, manifest that the law made by the

Legis­

lature in respect of the powers, privileges and immu­

nities of a House of t.he Legislature of a State, would

be void to the

extent the law contravened the

provi­

sions of Art. 19(l)(a) of the Constitution, unless it is

saved

by any law prescribing reasonable restrictions

within

the ambit of Art. 19(2).

So much is conqided

by the learned Solicitor General. Then, what is the

reason or justification for holding that the second part

of that clause should be read in a different way as to

be free from

the impact of the fundamental rights.

When the Constitution expressly made the

la.ws pres­

cribing the privileges of the Legislature of a State of

our country subject to the fundamental rights, there

is no apparent reason why they should have omitted

that limitation in the case of the privileges of the

Parliament of the United Kingdom in their applica­

tion to a State Legislature. We cannot assume that

•

880 SUPREME COURT REPORTS [1959] Supp.

i95s the framers of the Constitution thought that the privi-

. leg~s of the House of Commons were subject to the

11 5

r;;·•~: fundamental rights in that country; for, to assume

' · · '~.' '°'"'" that is to impute ignorance to them of the fact that

Shri s,; J(rishna the Parliament of the United Kingdom was supreme

Sinha and 01hers and there were no fetters on its power of. legielation.

The contention also, if accepted, would lead to the

S1tbba Rao J. anomaly of a law providing for privileges made by

Parliament or a Legislature of our country being struck

down as infringing the fundamental rights, w bile the

same privilege or privileges, if no law was made,

would be valid.

Except the far-fetched suggestion

that the Constitution-makers might have thought that

all the privileges of the House of

Commons, being the

mother of Parliaments, would not in fact offend the

fundamental rights and that, therefore, they design­

edly left them untouched

by

Part III as unnecessary

or the equally untenable guess that they thought that

for a temporary period the operation and the extent

of the said privileges need not be curtailed, no con­

vincing or even plausible reason is offered for

the

alleged different treatment meted out to the said privi­

leges

in the said two parts of cl. (3). If the

Constitu­

tion intended to make the distinction, it would have

opened

the second part of cl. (3) with the words

" Not­

withstanding other provisions of the Constitution or

those of Art. 19 ".

I cannot also appreciate the argument that Art. 194

should

be preferred to Art. 19(1) and not vice versa. Under the Constitution, it is the duty of this Court

to give a harmonious construction to both the provi­

sions so

that full effect may be given to both, without

the one excluding

the other. There is no

foherent in­

consistency between the two provisions. Article 19(1)

(a) gives freedom

of speech and expression to a citizen,

while

the second part of Art. 194(3) deals with the

powers, privileges and immunities of the Legislature

and of its members and committees. The Legislature

and its members have certainly a wide range of powers

and privileges and the said privileges can be exercised

without infringing

the rights of

a citizen, and particu­

larly of one who is not a member of the Legislature.

(1) S.C.R. SUPREME COURT REPORTS 881

When there is a conflict, the privilege should yield x95B

to the extent it affects the fundamental right. This P a·i

construction gives full effect to both the Articles. M. s. ;~ ;harma

This Court in Gunupati Keshavram Reddy v. Nafisul v.

Hasan (

1

)

held that the order of arrest of Mr. Mistry ShriSri Krishna

and his detention in the Speaker's custody was a Sinha and

Others

breach of the provisions of Art. 22(2) of the Constitu--

Subba Rao ].

tion. In that case, the said Mistry was directed by

the Speaker of the U. P. Legislative Assembly to be

arrested

and produced before him to answer a charge

of breach of privilege. Though the question was not

elaborately considered, five judges of this

Court un-

animously held

that the arrest was a clear breach of

the provisions of Art. 22(2) of the

Constitution indi-

cating thereby

that Art. 194 was subject to Articles of Part III of the Constitution. I am bound by the deci-

sion of

this

Court. In the result, I hold that the peti-

tioner has the fundamental right

to publish the report

of the proceedings of the Legislature and that, as no

reasonable restrictions were imposed by law on

the

said fundamental right, the action of the respondents

infringes his

right entitling him to the relief asked for.

This case does not,

as it is supposed or suggested

illustrate

any conflict between the Legislature and the

Court,. but it is one between the Legislature and the

citizens of the State whose representatives constituted

the Legislature. I yield to none in my respect for that

august body, the Legislature of the State; but, we are

under a duty, enjoined on this Court by Art. 32 of the

Constitution, to protect the rights of the citizens who

in theory reserved to themselves certain rights

and

parted only the others to the Legislature. Every

institution created by the Constitution, therefore,

should function within its allotted field

and cannot

encroach upon the rights of the people who created

the institutions. It may not be out of place to suggest

to the appropriate

authority to make

a law regulating

the powers, privileges and immunities of the Legisla­

ture instead of keeping this branch of law in a nebu­

lous state, with the result that a citizen will have to

(1) A.LR. (1954) S.C. 636.

III

882 SUPREME COURT REPORTS [1959] Supp.

r958 make a research into t.he unwritten law of the privi-

leges

of the House of

Commons at the risk of being

M. s. ~;~~~"'"'" called before the Bar of the Legislature.

v. The said conclusion would be sufficient to dispose of

Shd Sri l<rishua this petition. But as it was argued at some length, it

Sinha and Others . would be as well that I expressed my opinion on the

question of the existence and the extent of the relevant

Stthba Rao j. J f H f C h

privi eges o the ouse o ommons at t e commence-

ment

of the

Constitut.ion. Before considering that

question, it would be convenient to notice brirfly the

scope of a Court's jurisdiction to investigate the natme

and the extent of the privilege claimed by the House

of Commons. It is often said that each House of

Piirliament is the sole judge of its own privileges. But

early in the history of British Parliament the question

of the scope of that equivocal statement was raised

and .it was contended that the House's jurisdiction

was coufi'ned only within the limits of the privileges

as defined by the Courts of Common Law. The said

question was raised

and decided in Ashby v. White (

1

), Paty's Gase('), Stockdale v. Hansard(') and in the Gase

of the Sheriff of Middlesex('). In the said cases, the

Common Law rights of a citizen were threatened by

the House of Commons on the ground that the person

concerned committed a breach of the privilege of tho

House. The combined effect of these decisions is that

" the Courts deny to the Houses the right to determine

the limits

of their privileges, while allowing them

within those limits exclusive

jurisdiction". In Anson's

Law

and

Custom of the Constitution, the principle has

been neatly stated, at page 190, thus:-

"The Privileges of Parliament, like the preroga.

tive

of the

Crown, are rights conferred by Jaw, and as

such their limits a.re ascertainable and determinable,

like

the limits of other rights, by the

Courts of Law."

As the learned Solicitor General conceded the said legal

position,

it would be unnecessary to pursue the matter

further or consider the decisions in greater detail.

The main question, therefore,

that falls to bl) decid­

ed is the existence a11d the extent of the privilege

(1) (1jo3) 2 Ld. Ray1n. 938. (l} (170.of) 2 Ld. Raym. 1105.

(J) (ISJ•J) 9 A. & E. J. (.t) (1840) II A. & E. 8119.

(1) S.C.R. SUPREME COURT REPORTS 883

claimed

by the respondents. As the privilege claimed I958

by the respondents is in derogation of the fundamen-

.

tal right of a . citizen, the burden lie.s heavily upon M. s.~;~~!arma

them to establish by clear and unequivocal evidence v.

that tho House of Commons possessed such a privilege. Shri Sri Krishna

In the words of Coke " as the privilege is part of the

Jaw of custom of the Parliament, they must be collect­

ed out of the rolls of Parliament and other records

a.ncl by precedent and continued experience". They

can be found only in the Journals of tho House com­

piled in the Journal Office from the manuscript

minutes and notes of proceedings made by the clerks

at tho table during the sittings of the House. Decided

cases

and the text-books would also help us to

ascer­

tain the privileges of the Houses. The words " at the

commencement of the Constitution " indicate that tho

privileges intended to be

attracted are not of the dark

and.difficult days, when the House of

Commons pass­

ed through strife and struggle, but only those obtain­

ing in 1950, when it was functioning as a model

Legislature in a highly democratized country.

In the

circumstance, a duty is cast upon the respondents to

establish with exactitude

that the House of

Commons

possessed the particular privilege claimed a.t the com­

mencement of the Constitution.

The respondents claimed two privileges: (i) that the

House of Commons has the privilege of preventing. the

publication of its proceedings; and (ii) that it has the

privilege to prevent the publication of that part of the

proceedings directed by the Speaker to be expunged.

Indeed the secor(d privilege is in fact comprehended

by

the first, which is larger in scope.

A history of the said privilege is given in May's

Parliamentary Practice as well as in Halsbury's Laws

of England. In Halsbury's Laws of England,

2nd

Edition, Volume;24 (Lord Hailsham's. Edition), it is

stated at pages 350-351 as follows:

"It is within the power of either House of Parlia­

ment, should it deem it expedient, to prohibit the

publication of its proceedings.

. In the House of Lords, it is a breach of privilege

for any person to print or publish anything relating to

Sinha and Others

S11bba Rao J.

884 SUPREME COURT REPORTS [1959] Supp.

z95a the proceedings of the House without its permission.

.

The House of Commons, upon many occasions, has

M.

s.P;~~~arma declared the publication of its proceedings without the

v. authority of the House to be a breach of privilege, and

Shri Sri Krishna the House has never formally rescinded the orders

Sinha and Others which from time to time it has made with regard to

this subject. At the present time, however, neither

Subba Rao J. House will consider a .report of its proceedings in a

newspaper

or other publication to be a breach of its

privileges, unless such report is manifestly inaccurate

or

untrue."

At page 350 in the foot-note (d) the history of the

said privilege is given thus:-

"The jealousy of the House of Commons with

regard

to the privacy of its proceedings dates from the

Long Parliament, and

was, due to the antagonism

which existed between

that assembly and the King.

The object

of the House at that time was to prevent

its own members or officers from supplying

the King

with information which might incriminate its

mem­

bers; see Resolutions of the House of Commons of

July 13, 1641 (Journals of the House of Commons,

1641, Vol. II, page 209). It was not until after the

Revolution of 1689 that the House came in contact

with unofficial reporters who furnished, for

the news IEJtters of the day, reports, often prejudicial and gene­

rally inaccurate, of the proceedings of the Commons.

In 1738 the House passed a resolution stating that it

was "an high indignity to, and a notorious breach of

privilege of, this House, for any news writer, in letters

or other papers (as minutes, or under any other deno­

mination), or for any printer or publisher of any

printed newspaper of any denomination to insert in

the said letters or papers, or to give therein any

account of the debates or other proceedings of this

House or any committee thereof, as well during the

recess, as the sitting of Parliament; and that this

House will proceed with the utmost severity against

such offenders (Journals

of the House of

Commons,

1738, Vol. XXIII, p. 148; Parliament1uy History,

Vol.

X, pp. 799-811). This resolution was repeated in

1753 and 1762; see Journals of the House of

(1) S.C.R. SUPREME COURT REPORTS 885

Commons, 1753, Vol.

XXVI, p. 754; 1762, Vol. XXIX,

r9s

8

pp. 206, 207. But, in spite of the attitude of the P a·i

House, unofficial reports of the proceedings of the M .s. ;~ dharma

House of Commons were still published, and in 1771, v.

during the disturbances caused by John Wilkes, the Shri Sri Krishna

claim of the House to forbid the publication of its Sinha and Others

debates led to a struggle between the Commons and Subba Rao J.

the City of London which, although it resulted in the

committal

to prison of the Lord Mayor and two alder-

men, practically

put an end to the attempts of the

House

of

Commons to prevent the publication of its

debates."

Much to the same effect it is stated in May's Parlia­

mentary Practice: at page 54, the learned author,

under the heading " Right to control publication of

Debates and Proceedings", observes :

"Closely connected with the power to exclude

strangers, so

as to obtain, when necessary, such

pri­

vacy as may secure freedom of debate, is the right of

either House to prohibit the publication of debates or

proceedings. The publication of the debates of either

House

has been repeatedly declared to be a breach of

privilege, and especially false and perverted reports

of them; and no doubt can

exist that if either House

desire

to withhold their proceedings from the public, it

is within the strictest limits of their jurisdiction to do

so,

and to punish any violation of their

orders."

After tracing the history of the privilege, the practice

obtaining in modern times is described thus :

"The repeated orders made by the House forbid­

ding the publication of the debates and proceedings of

the House, or of any committee thereof, and of com­

ments thereon, or on the conduct of Members in the

House, by newspapers, newsletters, or otherwise, and

directing the punishment of offenders against such

rules,

have long since fallen into disuse. Indeed, since 1909, the debates have been reported and issued by an

official reporting staff under the authority of Mr.

Speaker,

and are sold to the public by Her Majesty's Stationery Office."

The same idea is repeated at page 56 as follows:-

886 SUPREME COURT H.EPORTS [1959] Supp.

1958 "So long as the debates are correctly and faith-

fully reported, however,

the privilege which prohibits

l

1

<HldiJ

M. s. M. Sharma their publication is waived."

v. At p•1ge ll8, the same result is described in different

Shri Sti li.sh11a words thus :

Si

11

h• •

11

d Oil"'' "So long as the debates arc correctly aud faith-

SuUl,. iiao J. fully reported, the orders which prohibit thl'ir publica­

tion are not enforced ; but when they are reported

ma/a fide, the publishers of newspapers are liable to

punishment."

Then the following eight instances of misconduct in

connection with the publication of the debates which

is generally

treated as a breach of privilege of the

House are given by the learned author :

(i) Publishing a false account of proceedings of

the House of Lords ;

(ii)

Publishing scandalous misrepresentation of

\v hat had passed in either House or what had been

said

in debate;

(iii) Publishing gross or wilful misrepresentations

of particular Members' speeches;

(iv) Publishing

under colour of a report of a

Member's speech a gross libel

011 the character and

conduct of another Member;

(v) Suppressing speeches

of particular Members;

(vi)

Publishing a proceeding which the House of

Lords had ordered to be expunged from the Journals ;

(vii) Publishing a libel on counsel appearing be­

fore a committee under colour of a report of the proce­

edings of such committee ; and

(viii) Publishing a forged paper, publicly sold as

His ~lajcsty's speech to both Houses.

It would be seen from the instances that ma/a .fides is

a necessary ingredient of the publication to attract

the doctrine of privilege and that the instances given

are of the period between 1756 to 1893. One of the

instances on which strong emphasis is laid by the

learned Solicitor General is the publishing of a pro­

ceeding which the House of Lords had ordered to be

expunged from

the Journals. Apart from the fact

that the instance in question relates to the House of

Lords, the Journal is not available for us to

ascertain

... ' ..

(1) S.C.R. SUPREME COURT REPORTS 887

under

what circumstances the publication was made.

'95

8

Further the Instance was of the year 1801 and no Prmdit

other instances of that kind appear to have occurred M. s.11-r. Sharma

from 1801 to 1950. In the circumstances, on the v.

authority of May, it may be accepted that the House S~ri Sri lishna

of Lords asserted the privilege in 1801 when its pro-

51111

•

0 .,,a Others

ceedings ·were published mala fide, though they were Subba Rao J.

expressly ordered to be expunged.

Co~kburn, C. J., in Wa&an v. Walter(1) forcibly

pointed

out the irrelevance of the privilege claimed in

the modern democratic set up. At page 89, the

learn­

ed Chief Justice observed:

"It seems to us impossible to doubt that it is of

paramount public and national importance that the

proceedings of the houses of Parliament shall be com­

municated to the public, who have the deepest interest

in knowing

what passes within their walls, seeing that

on what is there said and done, the welfare of the

community depends. Where would be our confidence

in

the govemment of the country or in the legislature

by which our laws are framed, and to whose charge·

the great interests of the country are committed,­

w here would be our attachment to the Constitution

under which we live,-if the proceedings of the great

council of the realm were shrouded in secrecy and

concealed from the knowledge of the nation? How

could

the communications between the representatives

of the people and their constituents, which are so

essential

to the working of the representative system,

be usefully carried on,

if the constituencies were kept

in ignorance of what their representatives

a.re doing?

What would become of the right of petitioning on all

measures pending in Parliament,

the undoubted right

of the subject, if the people are to be kept in ignorance

of what is passing in either house ?

Can any man

uring himself to doubt that the publicity given in

modern times to what passes in Parliament is essential

to

the maintenance of the relations subsisting between

the government, the legislature, and the country at

large? It may, no doubt, be

said that, while it may

be necessary as a matter of national interest that the

(1) (1868) L.R. 4 Q.B. 7J.

888 SUPREME COURT REPORTS [1959] Supp.

'

9

'

8

proceedings of Parliament should in general be made

Pandit public, yet that debates in which the character of in-

M. s. M. Sharma dividuals is brought into quest.ion ought to be sup-•

v. pressed. But to this, in addition to the difficulty in

Shri Sri Krishna which parties publishing parliamentary reports would

Sinha and Others be placed, if this distinction were to be enforced and

Subba Rao

1

.

every debate had to be critically scanned to see whe-

ther it contained defamatory matter, it may be

fur­

ther answered that' there is perhaps no subject in

which the public have a deeper interest than in all

that relates to the conduct of public servants of the

State,-no subject of parliamentary discussion which

more requires

to be made known than an inquiry

relating to

it".

•

At page 95, dealing with the contention based upon

the Standing Orders of both the Houses of Parliament

prohibiting the publication of the proceedings, the

learned Chief Justice proceeded to state as follows :

. " The fact, no doubt, is, that each house of Parlia-

. ment does, by its standing orders, prohibit the publi­

cation of its debates. But, practically, each house not

only· permits, but also sanctions and encourages, the

publication of its proceedings, and actually gives

every facility to those who report them. Individual

members correct their speeches for publication in

Hansard or the public journals, and in every debate

reports of former speeches containing therein are con­

stantly referred to. Collectively, as well as individually,

the members of both houses would deplore as a .natio­

nal misfortune the withholding their debates from the

country at large. Practically speaking, therefore, it is

idle to say that the publication of Parliamentary

proceedings is prohibited by Parliament. The stand­

ing orders which prohibit it are obviously main.tained

only

to give to each house the control over the publi­

cation

of its proceedings, and the power of preventing

or correcting any abuse of the facility

afforded."

I have given the said passages in extenso as they

give

neatly and graphically not only the extent of the

privilege in modern times,

but the reasons for and the

process by which the larger concept of the privilege

has been gradually reduced to its present form. These

(1) S.C.R. SUPREME COURT REPORTS 889

are weighty o~servations and, if they were appropriate x95B

to the conditions obtaining in the 19th century, they Pandit

would be more so in 1950, when the parliamentary M. s. M. Shanna

system of government was perfected in England. v.

Jennings in his book on "The British Constitution" Shri Sri Krishna

states at page 82 thus: Sinha and Others

" All this assumes, of course, that the House de-

b 0

• . k S11bba Rao ],

bates in pu lie. Government and pposit10n spea. to

each other,

but for the education of the people. The

criticisms brought against the Government a.re the

criticisms of ordinary individuals ; the answe,rs of the

Government are formally answers to the Opposition,

but substantially they are replies to the questions

raised in

the factory, the

railway carriage and the

office. The members of the House of Commons were

not elected for their special qualifications, but because

they supported the policies which the majority

of

their constituents were prepared to accept. They have

no authority except as representatives, and in order

that their representative character may be preserved

they must debate in public.

Secret sessions were suited

to

the oligarchic government of the eighteenth century.

They are

the negation of democratic principles. No

doubt there

a.re exceptional occasions when secrecy is

justified."

This passage s~ccinctly gives the principles under­

lying the doctrine that in a democratic country,

debates in Parliament

are public and there should not

be any prohibition against the publication of the said

debates.

The extent

of the privilege of the House of

Commons

in regard to the publication of its proceedings may

be stated

thus: In the seventeenth century, the

House of

Commons made standing orders prohibiting

the publication of its proceedings. But that was a

necessary precaution in

that critical period when the

representatives of the people were in conflict with the

crown and they were careful that their proceedings

should not reach the

ear of the

Crown. In the aristo­

cratic eighteenth century, the opposition to publication

was founded

not only on the fear of misrepresentation, 112

890 SUPREME COURT REPORTS [1959] Sµpp.

'95

1

but on impatience of the pressure of.public opinion.

P d't But gradually and imperceptibly, as a result of

M. s. /;~ ;harma conflicts and compromises and as Parliamentary

v. form of government became perfect and broad based,

Shri Sri Krishna not only publication was allowed but actually enCO\Jl'­

Sinha and Others aged by the House of Commons .. In the year 1950, it

would be unthinkable and indeed would have been 1m

Subba Rao ]. d h ,. H f

extraor inary p enomenon 1or the ouse o Commons

claiming the privilege of preventing the publication of

its proceedings. The said orders, though not expresEly

repealed or modified, were no longer enforced in ac­

cordance with their tenor; but were in effect modified

by practice and precedents. The stringent part of the

orders

had fallen into disuse and in practice it

was

restricted to ma la fide publication of the proceedings.

I, therefore, hold that in the year 1950, the House of

Commons had no privilege to: prevent the publication

of the correct and faithful reports of.its proceedings

save those in the case

of secret sessions held under

exceptional circumstances

and had only a limited

privi­

lege to prevent mala fide publication of garbled, un­

faithful or expunged reports of the proceedings.

It follows from my view, namely, that the petitio­

ner's fundamental right under Art. 19(1) is preserved

despite the provisions

of Art. 194(3) of the

Constitu­

tion,

that

the petitioner is entitled to succeed. I am

further of the opinion that even if Art. 194(3) of the

Constitution excludes the operation of Art. 19(1), the

petitioner in the circumstances of the present case

would not be in a worse position. That apart, the charge

as disclosed either in the notice served on the peti­

tioner or in the enclosures annexed thereto .does not

impute any rnala fide intention to the petitioner. The

notice only says

that the Committee of Privileges, on

the basis of the publication of the

news item in the

"Searchlight", found that a prima facie case ofbrea.cl:i.

of privilege has been made out against the petitioner.

The resolution enclosed therein indicates tha.t ~he peti­

tioner committed a breacil of privilege by printing the

expunged portion of the speech of Maheshwara Prasad

Narayan Singh and thereby published a perverted and

unfaithful report of the proceedings. Other documents

(1) S.C.R. SUPREME COUH,T ltEPORTS 891

enclosed with the notice contained a motion moved in z95B

the House by another member charging the petitioner .

for publishing

the expunged portion of the speech. The

Pan~"

t

't' • h' t't' t t th t t'll M 31 • M. S. M. Shanna

pe 1 10ner 111 is pe I 10n s a es a 1 ay , it was v.

not known to any member of the staff of the " Search. Shri Sri Krishna

light", including the petitioner, that any portion of Sinha and Others

the debate in . question had been expunged from the

official record

of the Assembly. Though in the official

Subba Rao J.

record of the proceedings, portions of the speech report-

ed

have been expunged, no order of the

Speaker

expunging any portions of the speech made on May

30, has been produced. Admittedly there was no order

of the Speaker prohibiting the publication of the ex-

punged portion of the speech.

In the counter-affidavit

filed

by the respondents, they did not allege any mala

fides

to the petitioner but they took their stand on the

fact that the Legislature had the privilege of prevent-

ing

the petitioner from publishing the expunged por-

tion

of the speech. In

the circumstances, neither the

notice nor the documents enclosed with the notice

disclose

that the petitioner published the speech,

including

the expunged portion

mp,la fide, or even with

the knowledge

that any portion of the speech was

directed

to be expunged. As I have pointed out, the

Legislature has the privilege of preventing only mala

fide

publication of the proceedings of the Legislature

and, as in this

case th~ petitioner is not alleged to

have done so, the Legislature has no po":'er to take any

action in respect of the said publication.

In the result, the petition is allowed. A Writ of

Prohibition will issue restraining the respondents from

proceeding

against the petitioner for the alleged breach

of privilege by publishing in the issue of the

"Search­

light", dated May 31, 1957, an account of the· debate

of the House (Legislative Assembly, Bihar) of May 30,

1957.

ORDER

In view of the judgment of the majority, the peti­

tion is dismissed. 'fhere will be no order as to costs.