TABLE OF CONTENTS

Contents
TABLE OF CONTENTS ........................................................................................................ 1

ACKNOWLEDGEMENT ....................................................................................................... 2

CASE COMMENT ON M.S.M SHARMA V. SRI KRISHNA SINHA .............................. 3

INTRODUCTION................................................................................................................ 3

BACKGROUND INFORMATION ................................................................................... 3

FACTS ................................................................................................................................. 3

LEGAL HISTORY ................................................................................................................ 3

LEGAL ISSUES .................................................................................................................... 5

JUDGEMENT ....................................................................................................................... 5

CASE ANALYSIS................................................................................................................ 6

REASONING OF THE JUDGE ............................................................................................... 6

CONCLUSION .................................................................................................................... 7

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 ACKNOWLEDGEMENT

The importance of research in Academics cannot be emphasized enough. While classroom

teaching helps a student with understanding the fundamental concepts of a subject, research

papers like this push one towards the detailed analysis of particular topics.

The fundamentals of my understanding of this topic were established with the classroom

lectures of ???????at this University. He has since guided me on this topic for which I am very

grateful. I am also grateful to ????????which provided me with the required support both in

the form of books and online database which has been of immense value to this project.

Finally, I acknowledge the support of my peers, the blessings of my parents and the never

ending grace of the almighty which has been the driving force of everything good in my life

including this research paper.

??????

????

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 CASE COMMENT ON M.S.M SHARMA V. SRI KRISHNA SINHA

INTRODUCTION

Parliamentary Privilege enable the members to discharge their functions without fear and are
necessary for democratic functioning. Article 105 and 194 are identical containing the
privileges of Parliament and State legislature respectively. The privileges given to the members
are necessary for exercising constitutional functions. These privileges are essential so that the
proceedings and functions can be made in a disciplined and undisturbed manner.

Freedom of the press is as an essential part of the freedom of speech and expression as
guaranteed in Article 19 (1) (a) of the Constitution. To preserve the democratic way of life it
is essential that people should have the freedom to make their views known to the people at
large. The press, a powerful medium of mass communication, should be free to play its role in
building a strong viable society.

The parliamentary privileges restrict the freedom of the press, which is a fundamental right.
Caution to a great extent has to be taken by the press while publishing any report of the
proceedings of the parliament or the conduct of any member.

BACKGROUND INFORMATION

FACTS

The editor of a newspaper Searchlight had published a report of the proceedings of Bihar
Legislative Assembly which had been expunged by the Speaker. The editor was held guilty of
contempt of the House. He sought injunction from the court against the contempt proceedings
on the ground of his fundamental right to freedom of speech under Article 19 (1) (a) of the
Constitution.

LEGAL HISTORY

The Legislature of Bihar had not made any law with respect to the powers, privileges and
immunities of the House of Legislature as enumerated in Entry 39 List II of the
Seventh Schedule to the Constitution of India. Therefore, as per Article 194(3), each House of
the Legislative Assembly of Bihar enjoyed the powers, privileges and immunities enjoyed by
the House of Commons at the time of commencement of the Constitution (i.e. 26 January

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1950). Hence, the Court examined the privileges of the House of Commons at the time of
commencement of the Constitution.

The House of Commons had asserted the right to control and, if necessary, to prohibit the
publication of the debates and the proceedings since 1641. In 1641, the House of Commons of
the Long Parliament framed standing order that no 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 the House.1 The aforementioned standing order had not been
abrogated or repealed and continued to remain in force. Consequently, as per Article 194(3) of
the Constitution, the Bihar State Legislative Assembly was to have the same powers, privileges
and immunities as the House of Commons until it enacted a law providing for the same.

Article 19(1)(a) guarantees to all citizens freedom of speech and expression but does not
specifically or separately provide for liberty of the Press. It is in Romesh Thappar v. State of
Madras2 the SC has held that freedom of speech and expression includes the freedom of
propagation of ideas and that freedom is ensured by the freedom of circulation.

Further in Brijbhushan case,3 the SC has been laid down by this Court that the imposition of
precensorship on a journal is a restriction on the liberty of the Press which is an essential part
of the right to freedom of speech and expression declared by Article 19(1)(a).

The relevant portions of Article 194 are as follows:

“19. (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(2) Nothing in sub-clause (a) of clause (1) shall 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 incitement to an offence.”

1
ERSKINE MAY, PARLIAMENTARY PRACTICE 55 (16th ed.).
2
Romesh Thappar v. State of Madras, (1950) SCR 594.
3
Brijbhushan v. State of Delhi, (1950) SCR 605.
4
INDIA CONST. art. 19.

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The relevant portions of Article 1945 are as follows:

(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 Parliament of the United Kingdom, and of its
members and committees, at the commencement of this Constitution.

LEGAL ISSUES

(i) Whether the privilege of the House under Article 194(3) of the Constitution include the
privilege to prohibit the publication of proceedings that took place in the House and which had
been directed to be expunged?

(ii) Whether the privilege of the House under Article 194(3) would prevail over the
fundamental right of the petitioner under Article 19(1)(a)?

(iii) Whether the right to the protection of personal liberty guaranteed under Article 21 would
be violated if the petitioner was produced before the Privileges Committee of the House which
could order his imprisonment?

JUDGEMENT

The majority judgement was delivered by Sudhi Ranjan Das. The court by the ratio of 4:1 held
that held that the privileges under Article 194(3) would not be subject to Article 19(1) (a) and
in case of conflict between Article 19(1) (a) and 194(3) the latter will prevail.

As regards the argument based on Article 21 the court held that in case the Editor was produced
before the Committee of Privileges in the Bihar Legislature, the rules framed by the assembly
under Article 208 would constitute a procedure established by law and there would be no
violation of Article 21.

The minority judgment was delivered by K. Subba Rao. He was of the opinion that the
petitioner's fundamental right under Article 19(1) is preserved despite the provisions of Article
194(3) of the Constitution.

5
INDIA CONST. art. 194.

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CASE ANALYSIS

REASONING OF THE JUDGE

Justice Suba Rao judgement was reasonably based on the reasoning that Article 194(3) do not
import the law of a foreign country in to India. The Parliament either make the existing law or
declare a particular law to be in force unless modified by it. He emphasised that Article 194(3)
is a transitory provision and unless there is a contrary intention, it cannot be given a higher
sanctity than that of the first part of Clause (3). Now the power to make laws regarding
“Powers, privileges and immunities of the Legislative Assembly” falls in list II of Seventh
schedule and State under Article 246 (3) has power to make laws on the same. Further Article
13(2), prohibits the State from making any law which takes away the rights conferred by Part
III and declares that void to the extent of the contravention. It is, therefore, manifest that the
law made by the Legislature in respect of the powers, privileges and immunities of a House of
the Legislature of a State, would be void to the extent the law contravened the provisions of
Article 19(1)(a) of the Constitution, unless it is saved by Article 19(2) which put very narrower
limits on Freedom speech and expression.

Even the Chief Justice S.R. Das noted in the present case that if privileges are codified by
"law", that law, like any other, would be subject to fundamental rights.

Justice Suba Rao further says that the Constitution adopted different and well-understood
phraseology to resolve conflicts and prevent overlapping of various provisions. Some Articles
are expressly made subject to the provisions of the Constitution. Some articles are made
effective notwithstanding other provisions in the Constitution. In case of any conflict it is the
duty of this Court to give a harmonious construction of the conflicting provisions so that full
effect may be given to both, without the one excluding the other.

He reasoned that there is no inherent inconsistency between the two provisions i.e. Art. 194(3)
and Art. 19(1)(a). 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.
When there is a conflict, the privilege should yield to the extent it effects the fundamental right.
This construction gives full effect to both the Articles. For this he relied on the judgement S.C.
in Gunapati Keshavaram Reddy case6held that the order of arrest of Mr Mistry and his

6
Gunapati Keshavaram Reddy v. Nafisul Hasan, AIR (1954) SC 636.

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detention in the Speaker's custody was a clear breach of the provisions of Article 22(2) of the
Constitution indicating thereby that Article 194 was subject to Articles of Part III of the
Constitution.

With regard to the privileges of the House of Commons he relied on the Halsbury's Laws of
England, and May's Parliamentary Practice. Halsbury's Laws of England states that:

“At the present time, however, neither 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.”7

At p. 118 (May's Parliamentary Practice),8 the same result is described in different words thus:

“So long as the debates are correctly and faithfully reported, the orders which prohibit their
publication are not enforced; but when they are reported mala fide, the publishers of
newspapers are liable to punishment.”

So by referring to above clauses he points out that mala fides intention is a necessary ingredient
of the publication to attract the doctrine of privilege. Further C.J. Cockburn,
in Wasan v. Walter9 pointed out the irrelevance of the privilege claimed in the modern
democratic set up and Jennings in his book on “The British Constitution” states at p. 52 that
for democratic country, debates in Parliament are public and there should not be any prohibition
against the publication of the said debates.

In the year 1950, it would be unthinkable and indeed would have been an extraordinary
phenomenon for the House of Commons claiming the privilege of preventing the publication
of its proceedings.

On the basis of above reasoning Justice Suba Rao concluded that the Legislature has the
privilege of preventing only mala fide publication of the proceedings of the Legislature and, as
in this case the petitioner is not alleged to have done so, the Legislature has no power to take
any action in respect of the said publication.

CONCLUSION

7
24 LORD HAILSHAM, HALSBURY'S LAWS OF ENGLAND 350-51 (2d ed.).
8
ERSKINE MAY, PARLIAMENTARY PRACTICE 118 (16th ed.).
9
Wasan v. Walter, (1868) LR IV QB 73.

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This situation has arised because of the Founding Fathers' misplaced faith in the commitment
of legislators to the rights of citizens. Members of the Constituent Assembly deeply resented
the reference to the British House of Commons in the Constitution of an independent India. On
behalf of the Drafting Committee, Sir Alladi Krishnaswami Aiyar assured them: "Only as a
temporary measure, the privileges of the House of Commons are made applicable to this
House.”

It was on the faith of this explicit assurance that on May 19, 1949, the Constituent Assembly
adopted the provision. Article 194 contains identical provisions for State legislatures. However,
on October 16, 1949 the President of the Assembly, Dr. Rajendra Prasad, delivered this
warning: "So, it is only a temporary affair. Of course, the Parliament may never legislate on
that point and it is therefore for the members to be vigilant."10

The Press Commission has often taken up the issue of codification of privileges. Even the
National Commission to Review the Working of the Constitution in its report in 2002,
suggested that privileges be “defined and delimited.” But legislatures have been reluctant, as
once privileges are codified they will be subject to judicial scrutiny. Given the vague wording
of the Constitutional provisions, the exact number of privileges is uncertain. The key difference
lies in the usage of such powers. For instance, the last person to be imprisoned by the British
Parliament was Charles Bradlaugh in 1880. In India however, this power has been frequently
resorted to.11

Also the Supreme Court’s jurisprudence in this regard however remains somewhat unclear.
There seems to be no rationale for the Supreme Court holding that certain fundamental rights
override legislative privilege, while others are subservient to it.

Difficulties arise when legislatures act against outsiders, such as the Press. This is correctly
seen as an encroachment on press freedom – a fundamental right guaranteed under Article 19
(1) (a).

A few years later, a certain Keshav Singh was sentenced to a week’s imprisonment for breach
of privilege of the UP legislative assembly. The matter went up before the Supreme Court. In

10
A.G. Noorani, Privilege to Expel Frontline, (Sep. 11, 2019, 13:49 PM),
https://frontline.thehindu.com/static/html/fl2402/stories/20070209003302100.htm
11
Sanjay R. Hedge, When freedom of the press is subject to Assembly privilege, The Indian Express, (Sep. 19,
2019, 20:04 PM), https://indianexpress.com/article/opinion/when-freedom-of-the-press-is-subject-to-assembly-
privilege-4723471/.

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Keshav Singh’s case12, the Supreme Court clarified that Article 21 (Right to Life and Personal
Liberty) would be applicable even when Legislatures exercised their powers in respect of their
privilege. Unfortunately, the court stopped here. It did not proceed to rule, as it ought to have,
that the fundamental rights, particularly the right to free speech, Article 19(1)(a), prevail over
the privileges.

In Raja Ram Pal case,13 another Constitution Bench revisited the conflict. The Court held that
Fundamental Rights under Articles 20 and 21 could prevail over privileges under Articles 105
and 194. However, no mention was made of rights under Article 19 (1) (a) relating to Freedom
of Speech.

All that remains is for the Supreme Court to rule that the fundamental rights prevail over the
privileges; specifically the fundamental right to freedom of speech.

12
Keshav Singh v. Speaker, U.P. Legislative Assembly, AIR 1965 All 349.
13
Raja Ram Pal v. Honble Speaker, Lok Sabha, (2007) 3 SCC 184.

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