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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.873 OF 2006

Shri Manjit Singh

S/o Moolsingh Sethi

aged 57 years, Occ: Business

R/o C/o Karishma Restaurant &

Bar Naigon Cross Road,

Dadar (East), Mumbai 400 014. ....Petitioner.

V/s

1. Maharashtra Assembly,

Maharashtra Legislative Assembly

Secretariat (Vidhan Bhavan)

Mumbai-32

2. The Honourable Speaker

Maharashtra State Legislative

Assembly,

Legislative Secretariat,

"Vidhan Bhavan, Assembly

Secretariat, Mumbai. ....Repondents.

----

Shri S.B. Talekar with Mr. J.G. Reddy for the

petitioner.

Shri Ravi Kadam, Advocate General, appointed as amicus

curiae.

Shri Iqbal Chagla, Senior Counsel, appointed as amicus

curiae.

None for the Respondents, though served.

CORAM:CORAM:CORAM: V.G. PALSHIKAR V.G. PALSHIKAR V.G. PALSHIKAR

Dr.Dr.Dr. S. RADHAKRISHNAN & S. RADHAKRISHNAN & S. RADHAKRISHNAN &

V.M.V.M.V.M. KANADE, JJ. KANADE, JJ. KANADE, JJ.

DATEDATEDATE : 4th July, 2006 : 4th July, 2006 : 4th July, 2006

ORAL JUDGMENT : (Per V.M. Kanade, J.)

1. The Petitioner has filed this petition under

Article 226 of the Constitution of India and is ::: Downloaded on - 30/08/2025 11:37:30 :::

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seeking appropriate writ to quash the impugned order

dated 11th/12th April 2006 whereby the petitioner was

sentenced to undergo imprisonment of 90 days for the

breach of privilege by the petitioner.

FACTS:FACTS:FACTS:

2. Brief facts which are relevant for the purpose of

deciding this Writ Petition are as under:-

3. The petitioner is a citizen of India and President

of Fight for Right Bar Owners' Association, Mumbai. A

decision was taken by the Government of Maharashtra

imposing a ban on the Dance Bars in various hotels in

Mumbai. A meeting was organized by the Dance Bar

Girls Association and it is alleged that the

petitioner was invited to attend the meeting. Large

number of bar girls attended the said meeting. A news

item appeared in daily "Sakal" in its issue dated

31/3/2005. In the said news-paper, a report was

published under the caption of "Wives of the Ministers

shall not be allowed to move on streets". The news

report further reported that the petitioner had used

unparliamentary words and had abused the Deputy Chief

Minister and the Home Minister of State Shri R.R.

Patil. One Sudhir Mungantiwar, Member of Legislative ::: Downloaded on - 30/08/2025 11:37:30 :::

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Assembly Chandrapur, submitted a breach of privilege

motion under Rule 272 on 31/3/2005. The Hon'ble

Speaker referred the matter for further examination

and inquiry and directed the Special Privilege

Committee to submit its report. A show-cause notice

was issued to the petitioner which was received by him

alongwith a copy of the breach of privilege motion

which was filed by Shri Sudhir Mungantiwar dated

25/4/2005. The petitioner submitted reply to the

show-cause notice on 6/6/2005.

4. The petitioner also filed separate application in

which he expressed his desire to engage an advocate to

defend himself. He also requested that summons may be

issued to Editor, Printer, Publisher who had given the

news item in daily "Sakal" for having committed breach

of privilege or, in the alternative, requested that he

may be called as a witness. He also requested that

some of the witnesses such as Dance Bar Girls

mentioned by him in the list of witnesses may also be

summoned during the inquiry. The petitioner also

requested that he may be supplied a copy of the rule

which is applicable to the inquiry before the

privilege Committee.

5. The extract of the relevant rules of the ::: Downloaded on - 30/08/2025 11:37:30 :::

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Maharashtra Legislative Rules (New Edition)

[hereinafter called "the said Rules] was supplied to

the petitioner. Further, the relevant extracts of the

directives issued by the Speaker were also supplied to

him. The Privilege Committee held several meetings

and notices of the meetings were served upon the

petitioner and the petitioner participated in the said

inquiry whenever the Privilege Committee held its

meetings. The Privilege Committee, however, did not

accept the request made by the petitioner for engaging

an advocate and framed four issues which are as

under:-

(1) Whether the petitioner gave a warning that

the girls performing in Dance Bar will come on

streets and would not allow the wives of

Ministers to move on streets?

(2) Whether the statement of the petitioner

was a critical note on the proceedings of the

House which prevented the members and the

House from discharging their functions

fearlessly and further prevented them from

discharging their statutory functions?

(3) Whether statement of the petitioner ::: Downloaded on - 30/08/2025 11:37:30 :::

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amounted to breach of special privileges of

members and contempt of the House?

(4) If so, what punishment shall be

recommended against Shri Manjeethsingh Sethi?

6. The Privilege Committee examined two witnesses (1)

Editor of Sakal and (2) one reporter Shri Patil of

daily "Sakal" who was examined on 6/9/2005. The

petitioner cross-examined both these witnesses. The

petitioner also produced his witnesses on 26/10/2005.

In the petition, petitioner has made averments of

number of instances of irregularity of procedure which

shall be discussed in detail later on.

7. The Privilege Committee submitted its report to

the Assembly recommending 90 days jail term for the

breach of privilege of the House. This report was put

before the House and it was accepted unanimously. The

petitioner applied for the copy of the report of the

Privilege Committee which was tabled on the floor of

the Legislative Assembly. The petitioner, thereafter,

made an application under the Right to Information Act

and asked for the copy of the documents which were

mentioned in the said letter. ::: Downloaded on - 30/08/2025 11:37:30 :::

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8. The Member Secretary of the Maharashtra

Legislative Secretariat supplied the report of the

Privilege Committee and also furnished proceedings

including depositions recorded and other evidence

adduced before the Privilege Committee to the

petitioner. The Hon'ble Speaker issued warrant of

arrest and the petitioner was arrested on 12/4/2006.

On 21/6/2006, the Division Bench of D.G. Deshpande

and S.A. Bobde, JJ directed that the matter may be

placed before Hon'ble the Chief Justice for

constituting a larger Bench. The Hon'ble Chief

Justice accordingly constituted this Bench and taking

into consideration the urgency, as made out by the

petitioner, the matter was kept for final hearing on

Monday i.e. 26/6/2006. The learned Counsel for the

petitioner, however, took time and, therefore, the

matter was fixed for final hearing on 28/6/2006. None

appeared on behalf of the Government or the Hon'ble

Speaker of the Maharashtra Legislative Assembly though

the notice was served.

SUBMISSIONS:SUBMISSIONS:SUBMISSIONS:

9. The learned Advocate General Shri Ravi Kadam

appeared as amicus curiae to assist the Court. We

also requested Shri Iqbal Chagla, Senior Advocate, to ::: Downloaded on - 30/08/2025 11:37:30 :::

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appear as friend of the court as amicus curiae to

assist the court.

10. We have heard the learned Counsel appearing on

behalf of the petitioner, the learned Advocate General

Shri Ravi Kadam and the learned Senior Counsel Shri

Iqbal Chagla.

11. The learned Counsel appearing on behalf of the

petitioner submitted that there was a clear breach of

the principles of natural justice. He submitted that

though the application was made by him for permitting

him to engage an advocate, that application was not

accepted. He further submitted that the Privilege

Committee did not follow the procedure which was laid

down under the Rules and adopted the procedure which

was clearly in breach of the provisions of the

Evidence Act and the Code of Criminal Procedure. He

then submitted that the complainant who had filed the

breach of privilege motion had taken part in the

proceedings and thus had acted as a prosecutor and a

judge in his own case. He submitted that he also

examined himself as witness and also asked questions

to the petitioner and cross-examined him as a member

of the Privilege Committee. It was submitted that,

therefore, on this ground, the report of the Privilege ::: Downloaded on - 30/08/2025 11:37:30 :::

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Committee itself was liable to be set aside. It was

lastly submitted that the findings of the Privilege

Committee were based on extraneous material and no

notice of this material was given to him. He

submitted that the Writ Petition, challenging the

order communicated to the petitioner by the Hon'ble

Speaker, convicting him for having committed breach of

privilege and contempt of the House was maintainable

under Article 226 of the Constitution of India and

that this Court has power to judicially review the

said order. He relied upon the judgment of the

Supreme Court in the case of M.S.M. Sharma Vs. Sri

Krishna Sinha and others , reported in AIR 1959 SC 395AIR 1959 SC 395AIR 1959 SC 395

and also on 7 judges Bench of the Supreme Court in the

case of Special Reference No.1 reported in AIR 1965 SCAIR 1965 SCAIR 1965 SC

745745745 He also relied upon the other judgments in support

of the said submissions. He also relied upon the

judgment of the Supreme Court in the case of Rameshwar

Prasad Vs. Union of India & Anr reported in 2006 AIR2006 AIR2006 AIR

SCWSCWSCW 494 494 494

12. The learned Senior Counsel Shri Iqbal Chagla

submitted that the law on the question of

maintainability of the Writ Petition is quite well

settled and he submitted that the petition under

Article 226 of the Constitution of India, challenging ::: Downloaded on - 30/08/2025 11:37:30 :::

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the conviction on the ground of breach of privilege of

the members of the Legislative Assembly was

maintainable under Article 226 of the Constitution.

He submitted that this Court has jurisdiction to

decide whether a particular privilege existed or not.

He, however, submitted that it was not open to the

Court to examine the internal proceedings of the house

in view of the specific bar under Article 212 of the

Constitution of India. He submitted that this Court

did have jurisdiction to set aside the order of breach

of privilege if it found that the said order which was

passed was malafide or was capricious. He further

submitted that it was not open for the High Court to

set aside the order on the ground of violation of

Article 19(1)(A) of the Constitution of India.

However, it was open for the Court to interfere in

case it found that there was violation of Article 21

of the Constitution of India. He invited our

attention to various paragraphs in the judgment of

M.S.M. Sharma (supra) and judgment of the Supreme

Court in Reference No.1, Keshavsingh's case repored in

1965 SC 745.

13. The learned Advocate General Shri Ravi Kadam

submitted that it was open for this Court to consider

the extent and existence of the privilege but not the ::: Downloaded on - 30/08/2025 11:37:30 :::

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merits of the decision. He submitted that this Court

also could examine whether the provisions of Article

21 have been complied with or nor. He submitted that,

however, in view of the specific bar imposed by

Article 212, the Court did not have jurisdiction to

look into the internal procedure adopted by the

Assembly and that it was open for the House for the

Privilege Committee to deviate from the procedure

which was prescribed under the Rules which were framed

in view of the provisions of Article 208 of the

Constitution of India. He submitted that since the

Rules which were framed under Article 208 of the

Constitution of India was creation of the Assembly, it

was open for the House to adopt such procedure as it

thought fit and proper. He submitted that it was not

open for this Court to consider whether the order was

malafide because malafide could not be attributed to

the House which had voted after the report was tabled

before it. He submitted that, in the present case,

the petitioner had intimidated the members of the

Legislative Assembly and, therefore, there was a

breach of freedom of speech which was a privilege

enjoyed by the members of the Legislature in view of

the specific provision of Article 194 subclause (1).

He submitted that a right to be represented by a

lawyer was a statutory right and it was the discretion ::: Downloaded on - 30/08/2025 11:37:30 :::

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of the Privilege Committee whether to allow the

petitioner to engage the advocate. It was settled law

that in cases where such discretion was vested by an

act of giving permission to a person to engage an

advocate, it was held that such a discretion if

exercised against the petitioner would not be

justiciable in the Court of law. The learned Advocate

General invited our attention to the extract from Kaul

& Shakdhar's Practice and Procedure of Parliament, 5th

Edition and extract from Erskine May's Treatise on the

Law, Privileges, Proceedings and Usage of Parliament.

He also invited our attention to the judgment of the

Division Bench of this Court (A.C. Agarwal and D.K.

Deshmukh, JJ) dated 28th/29th April 1999 in Writ

Petition No. 2224 of 1999 in the case of Dnyandeo

Chairman & Others Vs Maharashtra State Assembly

through its Chairman and Others. Our attention was

also invited to the Judgments in the cases of Keshav

Singh Vs. Legislative Assembly U.P. reported in AIR

1965 All 365 and M.S. Sharma Vs. Shri Krishna Sinha

[Searth Light II] reported in AIR 1960 SC 1186 and

also in the cases of Yashwantrao Meghawale Vs. M.P.

Legislative Assembly and others reported in AIR 1967

MP 95, A.M. Allison Vs. B.L. Sen reported in AIR

1957 SC 227, Full Bench decision of the Madras High

Court in the case of K.A. Mathialagan Vs. P. ::: Downloaded on - 30/08/2025 11:37:30 :::

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Srinivasan (FB) reported in AIR 1973 Madras 371 Then

he invited our attention to the case of Board of

Mining Examination vs Ramjee reported in 1977 SC 965

and also the Judgment in the case of Pradip Port Trust

Vs. Their Workmen reported in AIR 1977 SC 36 He also

invited our attention to the judgment in the case of

Lingappa P. Appealwar Vs. State of Maharashtra

reported in AIR 1985 SC 389.

FINDINGSFINDINGSFINDINGS AND CONCLUSION: AND CONCLUSION: AND CONCLUSION:

14. We have given our anxious consideration to the

submissions which were made by the learned Counsel for

the petitioner and the learned Advocate General Shri

Ravi Kadam and the learned Senior Counsel Shri Iqbal

Chagla, both of them appeared as amicus curiae to

assist the Court. The following questions arise for

determination are :-

(i) Whether a Writ Petition under article 226

of the Constitution of India, challenging the

decision which is taken by the House,

convicting a person on the ground of breach of

privilege of the Assembly is maintainable?

(ii) Whether this Court can determine the ::: Downloaded on - 30/08/2025 11:37:30 :::

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existence or otherwise of a privilege which is

enjoyed by the members of the Assembly?

(iii) What is the scope and extent of judicial

review by this Court while exercising its

jurisdiction under Article 226 of the

Constitution of India?

(iv) Whether this Court can go into the

question of the procedure which is followed in

the House in respect of the breach of

privilege?

(v) Whether any case is made out by the

petitioner for interfering with the impugned

order?

15. So far as question No.(i) is concerned, the

position in this regard is now quite well settled.

The Supreme Court while deciding the Reference which

was made by the President of India under Article

143(1), has held that the High Court is entitled to

entertain a petition under Article 226 of the

Constitution of India where the order is passed by the

House, alleging breach of privilege and such a

petition need not be thrown out at the threshold which ::: Downloaded on - 30/08/2025 11:37:30 :::

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view has been taken by the Supreme Court in

Presidential Reference in the case of Keshav Singh Vs.

U.P. State Legislative Assembly reported in AIR 1965AIR 1965AIR 1965

SCSCSC 765 765 765. This view has been approved by the Supreme

Court in its subsequent judgments and the other High

Courts also have consistently held that the Writ

Petition under Article 226 is maintainable. Reference

can be made to the judgment in the case of A.M.

Paulraj Vs. The Speaker, Tamil Nadu Legislative

Assembly, Madras and another reported in AIR 1986AIR 1986AIR 1986

MadrasMadrasMadras 248 248 248 in which in para 25 the Court has observed

as under:-

25........................ The question of

punishment for a breach of privileges is a

matter exclusively within the jurisdiction of

the Legislature and Art. 212 of the

Constitution forecloses any scrutiny by the

Court with regard to the procedure adopted by

the Legislature. We may also point out that

the Supreme Court in M.S.M. Sharma V. Sri

Krishna Sinha, AIR 1959 SC 395 has clearly

pointed out that where a person is deprived of

his personal liberty as a result of proceedings

before the Committee of Privileges, such

deprivation will be in accordance with the ::: Downloaded on - 30/08/2025 11:37:30 :::

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procedure prescribed by law....................

These observations give a complete answer to

the contention raised by the learned counsel

that he was entitled to relief from this Court

under Article 226 of the Constitution of India

on the ground that he was deprived of his

liberty otherwise than in accordance with the

procedure established by law."

. The Supreme Court in the case of Keshavsingh

(supra) has observed as under:-

"59 Let us first take Art. 226. This Article

confers very wide powers on every High Court

throughout the territories in relation to which

it exercises jurisdiction, to issue to any

person or authority, including in appropriate

cases any Government within those territories

directions, orders or writs, including writs in

the nature of habeas corpus, mandamus,

prohibition, quo warranto, certiorari or any of

them for the enforcement of any of the rights

conferred by Part III and for any other purpose.

It is hardly necessary to emphasise that the

language used by Art. 226 in conferring power

on the High Courts is very wide. Art. 12 ::: Downloaded on - 30/08/2025 11:37:30 :::

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defines the "State" as including the Legislature

of such State, and so, prima facie, the power

conferred on the High Court under Art. 226(1)

can, in a proper case, be exercised even against

the Legislature. If an application is made to

the High Court for the issue of a writ of habeas

corpus, it would not be competent to the House

to raise a preliminary objection that the High

Court has no jurisdiction to entertain the

application because the detention is by an order

of the House. Art. 226(1) read by itself, does

not seem to permit such a plea to be raised.

Art. 32 which deals with the power of this

Court, puts the matter on a still higher

pedestal; the right to move this Court by

appropriate proceedings for the enforcement of

the fundamental rights is itself a guranteed

fundamental right, and so, what we have said

about Art. 226(1) is still more true about Ar.

32(1)."

60. Whilst we are considering this aspect of

the matter, it is relevant to emphasise that the

conflict which has arisen between the High Court

and the House is, strictly speaking, not a

conflict between the High Court and the House as ::: Downloaded on - 30/08/2025 11:37:30 :::

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such,but between the House and a citizen of this

country. Keshav Singh claims certain

fundamental rights which are guaranteed by the

Constitution and he seeks to move the High Court

under Art. 226 on the ground that his

fundamental rights have been contravened

illegally. The High Court purporting to

exercise its power under Art. 226 (1), seeks to

examine the merits of the claims made by Keshav

Singh and issues an interim order. It is this

interim order which has led to the present

unfortunate controversy. No doubt, by virtue of

the resolution passed by the House requiring the

Judges to appear before the Bar of the House to

explain their conduct, the controversy has

developed into one between the High Court and

the House; but it is because the High Court in

the discharge of its duties as such Court

intervened to enquire into the allegations made

by a citizen that the Judges have been compelled

to enter the arena. Basically and fundamentally,

the controversy is between a citizen of Uttar

Pradesh and the Uttar Pradesh Legislative

Assembly. That is why in dealing with the

question about the extent of the powers of the

House in dealing with cases of contempt ::: Downloaded on - 30/08/2025 11:37:30 :::

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committed outside its four walls, the provisions

of Art. 226 and Art. 32 assume significance.

We have already pointed out that in the case of

M.S.M Sharma (1959) Supp (1) SCR 806 : (AIR

1959 SC 395) (supra), this Court has held that

Art. 21 applies when powers are exercised by

the legislature under the later part of Art.

194(3). If a citizen moves the High Court on

the ground that his fundamental right under Art.

21 has been contravened, the High Court would be

entitled to examine his claim, and that itself

would introduce some limitation on the extent of

the powers claimed by the House in the present

proceedings."

The first question therefore will have to be answered in

the affirmative.

16. So far as question No (ii) is concerned, it would

be relevant to consider Articles 105 and 194 of the

Constitution of India. Article 105 deals with powers

and privileges which are enjoyed by the members of the

Parliament and Article 194 deals with the Privileges

which are enjoyed by the State Assembly. The words

which are used in Article 194 are identical as those

which are used in Article 105 and these provisions apply ::: Downloaded on - 30/08/2025 11:37:30 :::

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mutatis mutandis to those which are found in Article

105. When the Constituent Assembly was drafting the

Article the questions regarding the privileges which

were to be enjoyed by the members of the House were

being considered. Dr. Babasaheb Ambedkar felt that it

would be in the best interest of the House not to codify

these privileges and it was not possible to contemplate

the privileges which could be claimed by the House in

order to ensure that the dignity of the House is not

lowered in any manner. It was, therefore, felt that the

privileges which were enjoyed by the House of Commons

would be available to the Parliament and the State

Assembly, which later on amended and now in the two

Articles, it is mentioned that the members would be

entitled to have the privileges which were available to

them before 44th amendment came into force. This

discussion is referred in the case of K. Anbazhagan and

others vs. The Secretary, The Tamil Nadu Legislative

Assembly, Madras and others reported in AIR 1988 MadrasAIR 1988 MadrasAIR 1988 Madras

275275275 in which in para 61, the Court has observed as

under:-

61...........................................

When the provision in Art. 194(3) was being

debated and a similar suggestion was once

again made Dr. Ambedkar pointed out that the ::: Downloaded on - 30/08/2025 11:37:30 :::

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privileges in relation to Parliament are much

wider than the privilege of freedom of speech

and immunity from arrest. He then said as

follows:

"For instance, under the House of Commons

powers and privileges it is open to Parliament

to convict any citizen for contempt of

Parliament and when such privilege is

exercised the jurisdiction of the court is

ousted. That is an important Privilege. Then

again, it is open to Parliament to take action

against any individual member of Parliament

for anything that has been done by him which

brings Parliament into disgrace. These are

very grave matters e.g. to commit to prison...

... .... NOR IS IT EASY TO SAY WHAT ARE THE

ACTS AND DEEDS OR INDIVIDUAL MEMBERS WHICH

BRING PARLIAMENT INTO DISREPUTE (underlining

ours )

Dr. Ambedkar then proceeded to observe:

"It is not easy, as I said, to define what are

the acts and deeds which may be deemed to

bring Parliament into disgrace. That would ::: Downloaded on - 30/08/2025 11:37:30 :::

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require a considerable amount of discussion

and examination. That is one reason why we

did not think of enumerating these privileges

and immunities.

But there is not the slightest doubt in my

mind and I am sure also in the mind of the

drafting Committee that Parliament must have

certain privileges, when that Parliament would

be so much exposed to calumny, to unjustified

criticism that the Parliamentary institution

in this country might be brought down to utter

contempt and may lose all the respect which

Parliamentary institutions should have from

the citizens for whose benefit they operate."

Dr. Ambedkar also referred to the

difficulties in enumerating all the privileges

of the Parliament and made particular

reference to May's Parliamentary Practice as

will be clear from the following paragraph.

"It seems to me, if the proposition was

accepted that the Act itself should enumerate

the privileges of Parliament, we would have to

follow three courses. One is to adopt them in ::: Downloaded on - 30/08/2025 11:37:30 :::

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the constitution, namely to set out in detail

the privileges and immunities of Parliament

and its members. I have very carefully gone

over May's Parliamentary Practice which is the

source book of knowledge with regard to the

immunities and privileges of Parliament. I

have gone over the index to May's

Parliamentary Practice and I have noticed that

practically 8 or 9 columns of the index are

devoted to the privileges and immunities of

Parliament. So that if you were to enact a

complete code of the privileges and immunities

of Parliament based upon what May has to say

on this subject, I have not the least doubt in

my mind that we will have to add not less than

twenty five pages relating to immunities and

privileges of Parliament. I do not know

whether the members of this House would like

to have such a large categorical statement of

privileges and immunities of Parliament

extending over twenty or twenty five pages.

That I think is one reason why we did not

adopt that course."

He justified the present form of Art. 194(3)

in the following words : ::: Downloaded on - 30/08/2025 11:37:30 :::

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"The third course open to us was the one which

we have followed, namely, that the privileges

of Parliament shall be the privileges of the

House of Commons. It seems to me that except

for the sentimental objection to the reference

to the House of Commons I cannot see that

there is any substance in the argument that

has been advanced against the course adopted

by the Drafting Committee. I therefore

suggest that the article has adopted the only

possible way of doing it and there is no other

alternative way open to us. That being so, I

suggest that this article be adopted in the

way in which we have drafted it".

17. Since these privileges are not codified, this

Court is entitled to consider whether the privilege

claimed by the House, exists or not.

18. This proposition cannot be disputed in view of

decision of the Supreme Court in the case of M.S.M.

Sharma Vs. Sri Krishna Sinha and others reported in

AIRAIRAIR 1959 SC 395 1959 SC 395 1959 SC 395 Therefore, we are of the view that

this Court can decide whether the privilege claimed by

the House exists or not. ::: Downloaded on - 30/08/2025 11:37:30 :::

:24:

19. The Supreme Court in Keshav Singh's case [AIR

1965 SC 745] in para 42 of its judgment observed as

under:-

"42. There is another aspect of this matter

which must also be mentioned; whether or not

there is distinct and rigid separation of

powers under the Indian Constitution, there is

no doubt that the Constitution has entrusted

to the Judicature in this country the task of

construing the provisions of the Constitution

and of safeguarding the fundamental rights of

the citizens. When a statute is challenged on

the ground that it has been passed by a

Legislature without authority, or has

otherwise unconstitutionally trespassed on

fundamental rights, it is for the Courts to

determine the dispute and decide whether the

law passed by the legislature is valid or not.

Just as the legislature are conferred

legislative authority and their functions are

normally confined to legislative functions, and

the functions and authority of the executive

lie within the domain of executive authority,

so the jurisdiction and authority of the

Judicature in this country lie within the ::: Downloaded on - 30/08/2025 11:37:30 :::

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domain of adjudication. If the validity of

any law is challenged before the courts, it is

never suggested that the material question as

to whether legislative authority has been

exceeded or fundamental rights have been

contravened, can be decided by the

legislatures themselves. Adjudication of such

dispute is entrusted solely and exclusively to

the Judicature of this country; and so, we

feel no difficulty in holding that the

decision about the construction of Art.

194(3) must ultimately rest exclusively with

the Judicature of this country. That is why we

must over-rule Mr. Seervai's argument that

the question of determining the nature, scope

and effect of the powers of the House cannot

be said to lie exclusively within the

jurisdiction of this Court. This conclusion,

however, would not impair the validity of Mr.

Seervai's contention that the advisory opinion

rendered by us in the present Reference

proceedings is not adjudication properly

so-called and would bind no parties as such."

The question No. (ii), therefore, also will have to

be answered in the affirmative i.e. this Court can ::: Downloaded on - 30/08/2025 11:37:30 :::

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determine whether a particular privilege exists or

not.

20. So far as the question No.(iii) is concerned, a

consistent view which has been taken by the Supreme

Court is that it is not open for a citizen to claim

breach of his fundamental right under Article 19(1)(a)

i.e. his freedom of speech and expression and this

fundamental right cannot override the right which is

given to the Legislature under Article 194. This

majority view in the case of M.S.M. Sharma has been

accepted by the Supreme Court in Keshav Singh's case

(supra). It would be relevant to note here that in

M.M. Sharma's case Subbarao, J. had given a

dissenting judgment on this aspect. In N. Ravi's

case, reported in (2005) 1 SCC 603, the Supreme Court

has referred Keshavsingh's case and M.S.M. Sharma's

case to its 7 Judges' Bench. We must mention here

that though the opinion which is given by the Supreme

Court on a presidential reference may not have a

binding force as a judgment which is given in a case

decided by it as per Article 141, yet this advise and

opinion has been referred to in the other judgments of

the High Courts. This can also be noticed in case of

the opinion given by the Supreme Court in Re Delhi's

Laws Act 1912 reported in (1951) SCR 747. ::: Downloaded on - 30/08/2025 11:37:30 :::

:27:

21. The Supreme Court in the case of M.S.M.

Sharma(supra) in its judgment in para 29 and 29a

observed as under:-

"29.......................Article 194(3)

on the Legislative Assembly those powers,

privileges and immunities and Art. 208

confers powers on it to frame rules. The

Bihar Legislative 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 Assembly 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 proceedings

before the Committee of Privileges, such

deprivation will be in accordance with

procedure established by law and the

petitioner cannot complain of the breach,

actual or threatened of his Fundamental

Right under Art. 21." ::: Downloaded on - 30/08/2025 11:37:30 :::

:28:

"29a.................. 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.

22. It is further held that right from M.S.

Sharma's case (supra) [Search Light-1 and Search

Light 2], AIR 1960 SC 1186, Keshav Singh's case

(supra), it would be open for the High Court under

its writ jurisdiction to consider and examine

whether there is breach of the provisions of Article

21 of the Constitution of India which mandates that

life and liberty of an individual cannot be taken

away without following the procedure established by

law.

23. Th e High Court, similarly, in our view, can

also consider and examine whether the order which is

passed is ex facie malafide or is utterly

capricious. It would be relevant in this context to

consider the observations made by the Supreme Court

in the case of Keshav Singh (supra) wherein the

Supreme Court in para 127 has observed as under:- ::: Downloaded on - 30/08/2025 11:37:30 :::

:29:

"127. As we have already indicated we do

not propose to enter into a general

discussion as to the applicability of all

the fundamental rights to the cases where

legislative powers and privileges can be

exercised against any individual citizen

of this country, and that we are dealing

with this matter on the footing that Art.

19(1)(a) does not apply and Art. 21

does. If an occasion arises, it may

become necessary to consider whether Art.

22 can be contravened by the exercise of

the power of privilege under Art.

194(3). But for the moment, we may

consider Art. 20. If Art. 21 applies,

Art. 20 may conceivably apply, and the

question may arise, if a citizen

complains that his fundamental right had

been contravened either under Art. 20 or

Art. 21, can he or can he not move this

Court under Art. 32? For the purpose of

making the point which we are discussing

the applicability of Art. 21 itself

would be enough. If a citizen moves this

Court and complains that his fundamental ::: Downloaded on - 30/08/2025 11:37:30 :::

:30:

right under Art. 21 had been

contravened, it would plainly be the duty

of this Court to examine the merits of

the said contention, and that inevitably

raises the question as to whether the

personal liberty of the citizen has been

taken away according to the procedure

established by law. In fact, this

question was actually considered by this

Court in the case of Sharma, (1959) Supp

(1) SCR 806 : (AIR 1959 SC: 395). It

is true that the answer was made in favour

of the legislature; but that is wholly

immaterial for the purpose of the present

discussion. If in a given case the

allegation made by the citizen is that he

has been deprived of his liberty nor in

accordance with law, but for capacious or

mala fide reasons, this Court will have

to examine the validity of the said

contention, and it would be no answer in

such case to say that the warrant issued

against the citizen is a general warrant

and a general warrant must stop all

further judicial inquiry and scrutiny.

(Underlining supplied by us) In our ::: Downloaded on - 30/08/2025 11:37:30 :::

:31:

opinion, therefore, the impact of the

fundamental constitutional right

conferred on Indian citizens by Art. 32

on the construction of the latter part of

Ar. 194(3) is decisively against the

view that a power or privilege can be

claimed by the House, though it may be

inconsistent with Art. 21. In this

connection, it may be relevant to recall

that the rules which the House has to

make for regulating its procedure and the

conduct of its business have to be subject

to the provisions of the Constitution

under Art. 208(1)."

24. It will also be profitable to consider the

observations made by the Allahabad High Court

Keshavsingh's case in para 17 and 18 of the said

Judgment which have been referred to and relied

upon by the Division Bench of this Court in the

case of Dnyandeo Ingale (supra), read as under:-

"17. The petitioner is not entitled to

challenge the commitment either on the

ground of violation of the principles of

natural justice or on the ground that the ::: Downloaded on - 30/08/2025 11:37:31 :::

:32:

facts found by the Legislative Assembly do

not amount to its contempt. Once we come

to the conclusion that the Legislative

Assembly has the power and jurisdiction to

commit for its contempt and to impose the

sentence passed on the petitioner, we

cannot go into the question of the

correctness, propriety or legality of the

commitment. This Court cannot, in a

petition under Article 226 of the

Constitution, sit in appeal over the

decision of the Legislative Assembly

committing the petitioner for its contempt.

The Legislative Assembly is the master of

its own procedure and is the sole judge of

the question whether its contempt has been

committed or not. In this connection, we

may mention that learned counsel for the

petitioner also contended that Rules 74 and

76 of the Rules of Procedure and Conduct of

Business of the U.P. Legislative Assembly

are ultra vires. Rule 74 reads as

follows:-

. "74. Opportunity to person charged -

Except where the breach of privilege is ::: Downloaded on - 30/08/2025 11:37:31 :::

:33:

committed in the actual view of the House,

the House shall give an opportunity to the

person charged to be heard in explanation

or exculpation of the offence against him,

before the sentence is passed:

. Provided that if the matter has been

referred to the Committee on privileges and

the person charged has been heard before

the Committee, it will not be necessary for

the House to give him that opportunity

unless the House directs otherwise"

The validity of this rule was challenged

on two grounds namely,

(1) that it violated the principles of

natural justice: and

(2) that it violated the provisions of

Article 22(1) of the Constitution.

With respect to the first ground, it is

sufficient to say that rules of natural

justice only apply when the statute or

statutory rules are silent as to the

procedure but no statutory provision or ::: Downloaded on - 30/08/2025 11:37:31 :::

:34:

statutory rule can be struck down where it

makes a provision excluding the application

of rules of natural justice. Rule 74 has

been framed in pursuance of the power

conferred by Article 208(1). It cannot be

challenged on the ground of violation of

the principles of natural justice. With

regard to the second ground, it is

unnecessary in the present case either to

consider whether Article 22(1) applies to

proceedings before the Legislative Assembly

or to consider whether Rule 74 violates

Article 22(1) for the reason that no

complaint has been made in the writ

petition that the petitioner desired to

consult and to be defended by any legal

practitioner. Indeed, from his attitude

before the Legislative Assembly it is clear

that he had no desire to participate at all

in the proceedings. Rule 76 lays down the

punishments that may be inflicted upon a

person found to have committed a breach of

privilege of the Legislative Assembly. We

cannot appreciate how the striking down of

Rule 76 can help the petitioner. Under

Article 194(3) the Legislative Assembly has ::: Downloaded on - 30/08/2025 11:37:31 :::

:35:

the power to inflict the same punishments

which the House of Commons can inflict for

breach of its privilege and Rule 76 does

not provide for any punishment which may be

said to be severer than that which the

House of Commons can inflict. Even if Rule

76 had not been there, the Legislative

Assembly could very well have inflicted the

punishment upon the petitioner which it has

imposed on him in the present case. It is,

therefore, unnecessary to consider the

question of the validity of this Rule."

"18. The fourth contention of learned

counsel for the petitioner is that the

Superintendent, District Jail, Lucknow,

respondent No.4, had no power to receive and

detain the petitioner in the District Jail

on the basis of the warrant issued by the

Speaker of the Legislative Assembly. In

support of this contention, he relies upon

section 3 of the Prisoners Act, 1900 (Act.

No. 3 of 1900) which runs as follows:

. "3. The officer in charge of a prison

shall receive and detain all persons duly ::: Downloaded on - 30/08/2025 11:37:31 :::

:36:

committed to his custody under this Act or

otherwise by any court according to the

exigency of any writ, warrant or order by

which such person has been committed, or

until such person is discharged or removed

in due course of law."

He relies upon the words "by any Court" and

contends that the Superintendent could

receive and detain only those persons who

are committed to his custody by any Court

and could not receive persons sent by any

other authority. We cannot agree with his

contention. Section 3 is not exhaustive.

It contains no prohibition against the

Superintendent of a jail receiving persons

sent by a competent authority other than a

Court of law. Since the House of Commons

has the power to commit any one for its

contempt and to confine him in one of Her

Magesty's prisons, the Legislative Assembly

also has a similar power to confine any

person, whom it commits for breach of its

privilege, in any prison. Since the

Legislative Assembly has, under Article

194(3), the constitutional right to direct ::: Downloaded on - 30/08/2025 11:37:31 :::

:37:

that the petitioner, who has been committed

for its contempt, be detained in the

District Jail, Lucknow, the Superintendent

of that jail was bound to receive the

petitioner and to detain him in accordance

with the warrant issued by the Speaker.

The detention by respondent No.4 cannot be

said to be illegal on this ground."

25. Keeping in view the observations which are made

by the Supreme Court in these cases and the

observations made by the Full Bench of the Madras

High Court in its judgment and also the Judgment of

the Division Bench of this Court, it is abundantly

clear that the scope and power of the High Court is

very limited and the High Court while exercising its

writ jurisdiction cannot sit in appeal over the

decision which is taken by the House and can only

examine the decision within the narrow parameters

which have been discussed in the preceding paragraphs.

26. So far as question No. (iv) is concerned, it is

not possible in our view to consider the correctness

of the decision which is taken by the House in view of

the express bar which is laid down under Article 212

of the Constitution of India. Article 212 reads as ::: Downloaded on - 30/08/2025 11:37:31 :::

:38:

under:-

"212. Courts not to inquire into

proceedings of the Legislature.- (1) The

validity of any proceedings in the

Legislature of a State shall not be called

in question on the ground of any alleged

irregularity of procedure.

(2) No Officer or member of the Legislature

of a State in whom powers are vested by or

under this Constitution for regulating

procedure or the conduct of business, or

for maintaining order, in the Legislature

shall be subject to the jurisdiction of any

court in respect of exercise by him of

those powers."

27. A bare perusal of the said Article discloses

that the procedure which is followed in the House

cannot be the subject matter of the inquiry in any

court of law. So far as the procedure which is

followed in cases of breach of proceedings, rules

have been framed by the House while exercising the

power which is vested in it under Article 208.

Accordingly, the rules have been framed in respect ::: Downloaded on - 30/08/2025 11:37:31 :::

:39:

of the procedure which is followed. Similarly, the

Hon'ble Speaker also has given certain directions

regarding the manner in which the Privilege

Committee has to conduct the proceedings. The

directions which are relevant for the purpose of

this Writ Petition are as under:-

Directions:-

"2. All persons, other than the members of

the Committee, the officers of the Maharashtra

Legislature Secretariat and such other persons

as may be expressly permitted by the Chairman

to attend the meetings, shall withdraw from

the sittings of the Committee."

"6. (a) The proceedings of the Committee

including is report or any conclusions arrived

at, tentatively or finally, shall be treated

as confidential until their presentation to

the House and the Committee may direct that

the whole or a part of the proceedings of the

Committee or a summary thereof may be laid on

the table of the House."

"8. After a question of breach of privilege

has been referred by the Speaker to the ::: Downloaded on - 30/08/2025 11:37:31 :::

:40:

Committee of Privileges either under Rule 277

or 284 the Chairman shall, as soon as

practicable, call a preliminary meeting of the

Committee to consider the said question of

privilege an to determine, subject to the

specific provisions made in this behalf in the

Rules and the directions, the procedure

generally to be followed in regard to the

matter under inquiry, which, in its opinion,

is most suited for the purpose."

"12. The Committee may in the examination of

witnesses be guided, wherever necessary so far

as procedural matters are concerned, by the

principles of ordinary law of the land such as

the Civil Procedure Code, the Criminal

Procedure Code and the Law of Evidence, etc.

and the principles of natural justice."

28. From the above Articles and the Rules which are

framed, it can be seen that the Rules for the purpose

of conducting the breach of privilege proceedings

have been framed by the Maharasthra State Assembly,

the State Legislature and, therefore, it cannot be

said that there is no procedure which is established

by law and on that ground there is a breach of ::: Downloaded on - 30/08/2025 11:37:31 :::

:41:

principles of natural justice.

29. In view of the above position, we will consider

the contentions and submissions which are made by the

learned Counsel for the petitioner. The gist of the

submissions made by the learned Counsel for the

petitioner is that there is breach of principles of

natural justice on account of (a) the petitioner not

being given permission to be represented by a lawyer,

(b) the Privilege Committee did not conduct the

proceedings as per the procedure which is laid down

under the Evidence Act and the Code of Criminal

Procedure and also it has deviated from the Rules

which have been framed by the House and the

directions which are given by the Speaker, (c) that

there was no breach of privilege inasmuch as the

decision which was criticized by the petitioner was

taken by the Hon'ble Home Minister Shri R.R. Patil

while exercising his Executive Function and he had

merely pronounced that decision in the House and,

therefore, the members of the House would not claim a

breach of privilege in respect of the criticism of

executive function, (d) that the complainant Subhash

Mungantiwar was the member of the Privilege Committee

and, therefore was the prosecutor and judge in his

own case, (e) that the decision which is taken by the ::: Downloaded on - 30/08/2025 11:37:31 :::

:42:

Privilege Committee is based on extraneous

consideration and it does not pertain to the recent

occurrence and lastly (f) the petitioner had not made

the said statement but had conveyed it on behalf of

the bar girls through some of the press reporters and

that he had not given any interview to the reporter

of daily "Sakal" and, therefore, he was not the

author of that statement.

30. We are unable to accept the submissions made by

the learned Counsel appearing on behalf of the

petitioner at (a) above. It is settled position in

law that whenever discretion is vested in authority

to decide the application seeking permission to

engage the advocate, it is held that the said

discretion is not justiciable. The Supreme Court in

its judgment in the case of Lingappa Pochanna

Appealwar Vs. State of Maharashtra and another

reported in AIR 1985 SC 389AIR 1985 SC 389AIR 1985 SC 389 has observed in para 34

as under:-

"34. The contention that an advocate

enrolled under the Advocates Act, 1961 has an

absolute right to practise before all Courts

and Tribunals can hardly be accepted. Such a

right is no doubt conferred by S. 30 of the ::: Downloaded on - 30/08/2025 11:37:31 :::

:43:

Advocates Act. But unfortunately for the

legal profession. S. 30 has not been

brought into force so far though the Act has

been on the Statute Book for the last 22

years. There is very little that we can do

in the matter and it is for the Bar to take

it up elsewhere. A person enrolled as an

advocate under the Advocates Act is not ipso

facto entitled to a right of audience in all

Courts unless S. 30 of that Act is first

brought into force. This is a matter which

is still regulated by different statutes and

the extent of the right to practise must

depend on the terms of those statutes. The

right of an advocate brought on the rolls to

practise is, therefore, jut what is conferred

on him by S. 14(1)(a), (b) and (c) of the

Bar Councils Act, 1926. The relevant

provisions reads as follows:

"14(1) An advocate shall be entitled as of

right to practise:

(a) subject to the provisions of sub-s (4)

of S.9 in the High Court of which he is an

advocate, and ::: Downloaded on - 30/08/2025 11:37:31 :::

:44:

(b) save as otherwise provided by sub-s. (2)

or by or under any other law for the time

being in force in any other Court and before

any other Tribunal or person legally

authorized to take evidence, and

(c) before any other authority or person

before whom such advocate is by or under the

law for the time being in force entitled to

practise."

In view of the various authorities on the

subject, we cannot but hold that S. 9A of

the Act is not an unconstitutional

restriction on advocates to practise their

profession."

In view of the above, it cannot be said that refusal

on the part of the Privilege Committee to permit the

petitioner to appoint an advocate would amount to

breach of the principles of natural justice. Apart

from that, the rules and directions which are given by

the Speaker clearly provide a discretion which is

vested in the Privilege Committee either to permit or ::: Downloaded on - 30/08/2025 11:37:31 :::

:45:

not to permit a person to engage an advocate.

31. So far as the submission of the learned Counsel

for the petitioner at (b) above is concerned, the

same cannot be accepted because it is the prerogative

of the House to prescribe the procedure for the

purpose of conducting the inquiry in respect of the

breach of Privilege Motion and by virtue of the

provisions of Article 208, the power is vested in the

House to frame its own rules. Since the rules are

the creation of the House, in view of the express

power which is given under Article 208, in our view,

it is always open for the House to prescribe the

procedure and the House would not be bound by the

provisions of Criminal Procedure Code and the

Evidence Act. The contention of the petitioner that

two witnesses which were called by the Committee viz.

the Editor and the Reporter of daily "Sakal" were

allowed to remain present throughout the proceedings,

including the time when the petitioner was examined

before the Committee and during his cross-examination

and, therefore, there was a breach of the provisions

of the Evidence Act and the provisions of Criminal

Procedure Code, cannot be accepted. Mere deviation

or irregularity in the procedure would not by itself

vitiate the proceedings which are taken by the Breach ::: Downloaded on - 30/08/2025 11:37:31 :::

:46:

of Privilege Committee. The same is true in respect

of the submission that Subhash Mungantiwar was the

complainant and was also a member of the Privilege

Committee and was, therefore, a prosecutor and a

judge in his own case. This submission, though at

the first blush, appears to be attractive, on the

closer scrutiny of the relevant provisions it falls

to the ground and, therefore, cannot be accepted

which can be seen from the observations which are

made in the following cases:-

. Para 19 of the Full Bench Judgment of the Madras

High Court in the case of K. A. Mathialagan Vs. P.

Srinivasan and others reported in AIR 1973 MadrasAIR 1973 MadrasAIR 1973 Madras

371,371,371, reads as under:-

"19. The Legislative Assembly of a State is

undoubtedly the fountain source of its power

and the rules framed under Article 208 of the

Constitution being the creatures of such

power are succeptible to modification or

deviation at the discretion of the majority

of the member of the Assembly. The power to

make a rule implies a power to deviate from

the rule if the exigencies of circumstances

require and if the party vested with the ::: Downloaded on - 30/08/2025 11:37:31 :::

:47:

power is inclined to so act. B.W. Ridges in

his book "Constitutional Law of Englad"

dealing with the subject "What is the precise

meaning of the terms `proceedings in

Parliament' would say-

. "Another collective right of the House is

to settle its own code of procedure. This is

such an obvious right - it has never been

directly disputed - that it is unnecessary to

enlarge upon it except to say that the House

is not responsible to any external authority

for following the rules it lays down for

itself, but may depart from them at its own

discretion.......This holds good even where

the procedure of a House or the right of its

members or officers to take part in its

proceedings is dependent on statute. For

such purposes the House can `practically

change or practically supersede the law'."

The same author dealing with "jurisdiction of

courts of law in matters of privileges" at

page 176, 18th Edn. observes -

. "The problem thus became one of

reconciling law of privilege with the general ::: Downloaded on - 30/08/2025 11:37:31 :::

:48:

law. The solution gradually marked out by

the courts is to insist on their right in

principle to decide all questions of

privilege arising in litigation before them

with certain large exceptions, in favour of

Parliamentary jurisdiction. Two of these,

which are supported by a great weight of

authority, are the exclusive jurisdiction of

each House over its own internal proceedings,

and the right of either House to commit and

punish for contempt."

It is therefore well settled that over its

own internal proceedings the jurisdiction of

the House was exclusive and absolute and

cannot be interfered with by Courts. Again,

another learned author, Hood Philips in his

`Constitutional and Administrative Law' 3rd

Edn. at page 184, dealing with `exclusive

right to regulate its own proceedings' says-

. "The courts must presume that so august an

Assembly as the House of Commons discharges

its functions lawfully and properly. They

will therefore not take cognisance of matters

arising within the walls of the House, and ::: Downloaded on - 30/08/2025 11:37:31 :::

:49:

they will accept the interpretation put by

the Commons upon a statute affecting their

internal proceedings."

. Para 13 of the Judgment of the Supreme Court in

the case of The Chairman, Board of Mining and anr.

Vs. Ramjee reported in AIR 1977 SC 965AIR 1977 SC 965AIR 1977 SC 965 reads as

under:-

"13. The last violation regarded as lethal

objection is that the Board did not enquire

of the respondent, independently of the one

done by the Regional Inspector. Assuming it

to be necessary, here the respondent has, in

the form of an appeal against the report of

the Regional Inspector, sent his explanation

to the Chairman of the Board. He has thus

been heard and compliance with Reg. 26, in

the circumstances, is complete. Natural

justice is no unruly horse, no lurking land

mine, nor a judicial cure-all. If fairness

is shown by the decision-maker to the man

proceeded against, the form, features and the

fundamentals of such essential processual

propriety being conditional by the facts and

circumstances of each situation, no breach of ::: Downloaded on - 30/08/2025 11:37:31 :::

:50:

natural justice can be complained of.

Unnatural expansion of natural justice,

without reference to the administrative

realities and other factors of a given case,

can be exasperating. We can neither be

finical nor fanatical but should be flexible

yet firm in this jurisdiction. No man shall

be hit below the belt - that is the

conscience of the matter."

. Para 10 of the Judgment of the Supreme Court in

the case of M.S.M. Sharma Vs. Dr. Shree Krishna

Sinha and others reported in AIR 1960 S.C. 1186AIR 1960 S.C. 1186AIR 1960 S.C. 1186

reads as under:-

"10. It now remains to consider the other

subsidiary questions raised on behalf of the

petitioner. It was contended that the

procedure adopted inside the House of the

Legislature was not regular and not strictly

in accordance with law. There are two

answers to this contention, firstly, that

according to the previous decision of this

Court, the petitioner has not the fundamental

right claimed by him. He is, therefore, out

of Court. Secondly, the validity of the ::: Downloaded on - 30/08/2025 11:37:31 :::

:51:

proceedings inside the Legislature of a State

cannot be called in question on the

allegation that the procedure laid down by

the law had not been strictly followed.

Article 212 of the Constitution is a complete

answer to this part of the contention raised

on behalf of the petitioner. No Court can go

into those questions which are within the

Special jurisdiction of the Legislature

itself, which has the power to conduct its

own business. Possibly, a third answer to

this part of the contention raised on behalf

of the petitioner is that it is yet premature

to consider the question of procedure as the

Committee is yet to conclude its proceedings.

It must also be observed that the Legislature

has the jurisdiction to control the

publication of its proceedings and to go into

the question whether there has been any

breach of its privileges, the Legislature is

vested with complete jurisdiction to carry on

its proceedings in accordance with its rules

of business. Even though it may not have

strictly complied with the requirements of

the procedural law laid down for conducting

its business, that cannot be a ground for ::: Downloaded on - 30/08/2025 11:37:31 :::

:52:

interference by this Court under Art. 32 of

the Constitution. Courts have always

recognized the basic difference between

complete want of jurisdiction and improper or

irregular exercise of jurisdiction. Mere

non-compliance with rules of procedure cannot

be a ground for issuing a writ under Art. 32

of the Constitution: Vide Janardan Reddy vs.

State of Hyderabad, 1951 SCR 344 : (AIR 1951

SC 217)."

. Para 34 of the Judgment of the Supreme Court in

the case of M.S.M. Sharma Vs. Sri Krishna Sinha and

others reported in AIR 1959 SC 395AIR 1959 SC 395AIR 1959 SC 395 reads as under:-

"34. Finally, the petitioner denies that the

expunged portions have been published. We do

not think we should express any opinion on

this controversy, at any 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

there has, in fact, been any breach of its ::: Downloaded on - 30/08/2025 11:37:31 :::

:53:

privilege. Thus, it will be for the House on

the advice of its Committee of Privileges to

consider the true effect of the Speaker's

directions that certain portions 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 publication

cannot be claimed to be a publication of an

accurate and faithful report of the speech,

it will, again, be for the House to determine

whether the Speaker's ruling made distinctly

and audibly at a portion of the proceedings

be expunged amount to a direction 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 amounting to a

contempt of the Speaker and the House."

32. The contention of the learned Counsel at (c) above ::: Downloaded on - 30/08/2025 11:37:31 :::

:54:

is also not acceptable. In the present case what is

alleged is a breach of privilege of the freedom of

speech of the members of the legislature. This

privilege is expressly mentioned in Article 194(1) of

the Constitution of India. What is alleged is that the

petitioner had intimidated a member of the House and had

threatened him that if he perused with the decision

which was taken by him as a member of the House, his

wife would not be permitted to walk on the street. The

existence of such a right of freedom of speech which is

enjoyed by a member of the House cannot be disputed as

it is found under the provisions of Article 194(1)

itself. That such intimidation amounts to breach of

privilege also has been accepted in various decisions,

some of which have been discussed by Erskine May in his

book Treatise on The Law, Privileges, Proceedings &

Usage of Parliament, Twentieth Edition, where he has

observed as under:-

Attempted intimidation of Members.- To attempt to

influence Members in their conduct by threats is

also breach of privilege.

Acts tending indirectly to obstruct Members in

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33. What was, therefore, discussed in the House of the

Assembly by the member of the House was not only a

criticism but a threat was given to all the Hon'ble

Ministers of dire consequences if they did not withdraw

their decision. Therefore, in our view, the said

submission that the decision being merely conveyed by

the Hon'ble Home Minister on the floor of the House and,

therefore, it was not the exercise of legislative

function and, therefore, it did not amount to breach of

privilege, cannot be accepted. Apart from that, we have

already held in para 33 above, about the existence of

privilege which is claimed by the House.

34. As far as submission of the learned Counsel at (d)

above is concerned, it cannot be said that the action

was malafide because the complainant also happened to be

the member of the Privilege Committee. The Privilege

Committee had scrutinized each and every aspect which is

evident from the proceedings and, thereafter, the

decision was tabled before the house which was passed

unanimously. It cannot be said in this case that the

House had acted with malafide intention as it is

difficult to attribute malafides to the House.

Secondly, this Court cannot sit in appeal over the

decision which is taken by the Privilege Committee or by

the House. ::: Downloaded on - 30/08/2025 11:37:31 :::

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35. As regards the submission at (e) above is

concerned, we are unable to accept the submission made

by the learned Counsel. What essentially has to be

considered while examining the decision of the House by

this Court is, whether there is a breach of the

provisions of Article 21 of the Constitution of India

and whether the order is malafide or capricious. In the

present case, it cannot be said that no opportunity was

given to the petitioner. A show cause notice was issued

to him. Sufficient time was given to him to give his

reply which was submitted by him to the Secretary of the

Maharashtra Legislative Assembly. All documents on

which reliance was placed by the Privilege Committee

were supplied to him. The application which was filed

under the Right to Information Act was also granted.

Alongwith the show-cause notice, he was also given a

copy of the motion which was moved by Subhash

Mungantiwar The names of all witnesses were tendered to

him. The entire proceedings of the Committee were also

supplied to him. He was allowed to cross-examine the

witnesses. The submission of the learned Counsel for

the petitioner that no proper opportunity was given

cannot be accepted. The proceedings disclose that the

motion which was moved by Subhash Mungantiwar clearly

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Hon'ble Ministers with a view to prevent them and to

dissuade them from perusing their decision. The

Committee also had seen his earlier speeches which were

recorded and on the basis of the earlier statements made

by the petitioner, they had satisfied themselves that

the conduct of the petitioner was such that the threat

which was given now was not a farce and it was essential

to take a serious view of the same. The submission of

the learned Counsel of the petitioner, therefore, that

the decision was based on extraneous consideration

cannot be accepted.

36. As regards the last contention of the learned

Counsel appearing for the petitioner at (f) above is

concerned i.e. he was not the author of the statement

and that he was merely a spokesman and, therefore, the

order has to be set aside on this ground also cannot be

accepted since, as stated above, power of this Court is

very limited and this Court cannot sit in appeal over

the decision taken by the House. This Court, at the

most, can examine whether there is a breach of

provisions of Article 21 and whether the action is

malafide. Apart from that, from the perusal of the

reply which is given by the petitioner to show cause

notice, shows that the petitioner proceeds on the

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to justify the statement so made, the petitioner,

therefore, cannot blow hot and cold at the same time.

In any event, it is not open for this Court to examine

the correctness or otherwise of the decision which is

taken by the House.

37. In the result, it is not possible for this Court

to interfere with the order passed by the House while

exercising its jurisdiction under Article 226 of the

Constitution of India and this petition will have to

be dismissed.

38. Before parting, we would like to quote the

observation made by the Supreme Court in Keshavsingh's

case supra in para 142 of its judgement which reads as

under:-

"142. Before we part with this topic, we would

like to refer to one aspect of the question

relating to the exercise of power to punish for

contempt. So far as the courts are concerned,

Judges always keep in mind the warning addressed

to them by Lord Atkin in Andre Paul V.

Attorney-General of Trinidad, AIR 1936 PC 141.

Said Lord Atkin, Justice is not a cloistered

virtue: she must be allowed to suffer the ::: Downloaded on - 30/08/2025 11:37:31 :::

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scrutiny and respectful even though out-spoken

comments of ordinary men." We ought never to

forget that the power to punish for contempt

large as it is, must always be exercised

cautiously, wisely and with circumspection.

Frequent or indiscriminate use of this power in

anger or irritation would not help to sustain the

dignity or statuts of the court, but may

sometimes affect it adversely. Wise Judges never

forget that the best way to sustain the dignity

and status of their office is to deserve respect

from the public at large by the quality of their

judgments, the fearlessness, fairness and

objectivity of their approach, and by the

restraint, dignity and decorum which they observe

in their judicial conduct. We venture to think

that what is true of the Judicature is equally

true of the Legislatures."

39. In the present case, none appeared on behalf of the

respondents before us. As a result, we had to decide

the case by taking assistance of the Learned Advocate

General Shri Ravi Kadam and the learned Senior Counsel

Shri Iqbal Chagla. The Legislature and the Judiciary

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Constitutional functions and the goal of both these

Organs is ultimately welfare of the citizens. There

cannot be therefore any controversy between the

Legislature and the Judiciary. The controversy, if any,

is between the citizen and the Legislature as is

observed in Keshavsingh's case.

40. The two Organs of the Government have to function

in harmony. Though we do not wish to say anything in

respect of what should and what should not be done by

the respondents, we feel that the best interest of the

Nation and the welfare of the citizens would be ensured

and protected if the Government is represented through

its Counsel so that both the Organs can function

harmoniously.

41. Petition is accordingly dismissed. Rule is

discharged.

42. We would like to express our appreciation to the

Advocate General Shri Ravi Kadam and the learned Senior

Counsel Shri Iqbal Chagla for assisting this Court as

amicus curiae.

(V.G.(V.G.(V.G. PALSHIKAR, J.) PALSHIKAR, J.) PALSHIKAR, J.)

(S.(S.(S. RADHAKRISHNAN, J.) RADHAKRISHNAN, J.) RADHAKRISHNAN, J.)

(V.(V.(V. M. KANADE, J.) M. KANADE, J.) M. KANADE, J.) ::: Downloaded on - 30/08/2025 11:37:31 :::

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