JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES: FUNCTIONAL RELATIONSHIP OF

COURTS AND LEGISLATURES IN INDIA

Author(s): D. C. Jain
Source: Journal of the Indian Law Institute, Vol. 9, No. 2 (APRIL-JUNE 1967), pp. 205-222
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43949934
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 NOTES and COMMENTS

JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES:

FUNCTIONAL RELATIONSHIP OF COURTS AND
LEGISLATURES IN INDIA

I. Introduction

In modern democratic societies the question of the relationship

the courts and the legislatures has posed very difficult and d
problems. There appears frequently an inherent conflict in the
the one legislating for the better ordering of society and the
umpiring implementation of that legislation within the bounds of
mentals of natural justice preventing arbitrary action. Thi
becomes much more delicate in countries where the Constitution itself
embodies a certain area beyond the reach of the legislatures themselves
and where the need of a complete transformation of society from the
traditional to the modern calls for continuous action. The U.P. case is
a sad and unfortunate culmination of that process. It is possible that in
a democratically more mature and literate country the tensions generated
could have found a much more extra-legal solution and, therefore, a
more functional solution. To put in simple legal terms the case purports
an answer to question as to who is to determine in case of a conflict
legality or otherwise of a particular action taken by the legislature.
Articles 105 and 194 of the Constitution confer the same powers,
privileges and immunities on the legislatures in India as were enjoyed
by the British House of Commons at the commencement of the Consti-
tution.1 While the Constitution definitely confers the privileges of the
1. Ind . Const, art. 105 :
(1) Subject to the provisions of this Constitution and to the rules and stand-
ing orders regulating the procedure of Parliament, there shall be freedom of
speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in
any court in respect of anything said or any vote given by him in Parliament
or any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House
of Parliament, and of the members and the committees of each House,
shall be such as may from time to time be defined by Parliament 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 Constitution.
(4) The provisions of clauses (I), (2) and (3) shall apply in relation to
persons who by virtue of this Constitution have the right to speak in,
and otherwise to take part in tne proceedings of, a House of Parliament
or any committee thereof as they apply in relation to members of Parliament.
Article 194 deals with the legislature of a state and reads exactly like
article 105.

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206 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

House of Commons, there is no definiteness about these privileg

themselves. Thus, they must be discovered through a study of the un
written law of the privileges of the House of Commons developed i
judicial decisions and reported in the Hansard.
II. Categorization of Privileges

It is necessary to identify some of the well-known privile

the House of Commons and categorize them to focus attention
tension areas of relationship between courts and the legislatur
following three categories may be adopted for this purpose :

A. Privileges claimed by the legislature and recognize

the courts.

B. Privileges claimed by the legislature but not accepted by

the courts.

C. Privileges claimed by the legislature which have not yet

been brought before the courts.

A. Privileges Claimed by the Legislature

and Recognized by the Courts

These privileges may be conveniently dealt with under the heads

(i) privileges of members, and (ii) privileges of the House.
Freedom of speech in the legislature, freedom from arrest in civil
causes, exemption from jury service and exemption from being sum-
moned as witnesses are some of the well recognized privileges of members
which do not require any elaboration.
Right to settle its own procedure, right to publish debates and
proceedings and right to restrain publication by others are some of the
main privileges of the House. The courts will not interfere with the
interpretation of a statute so far as it regulates internal proceedings of
the legislature. Each House has unquestionable authority as regards its
internal procedure.
Articles 122 (l) and 212 (2) of the Indian Constitution are
to the same effect.2 But the immunity from judicial interference is
confined to matters of irregularity of procedure. There would be no
immunity if the proceedings are held in defiance of the mandatory
provisions of the Constitution or if the House exercises powers which
the legislature does not possess under the Constitution.3
Until the historical case of Stockdale v. Hansard 4 it was understood
that at common law the right of the House to publish its proceedings
2. Articles 122(1) and 212(1) lay down that the validity of any proceeding in
Parliament or legislature of a state shall not be called in question on the ground of any
alleged irregularity of procedure. See, also, Janardan Reddy v. State of Hyderabad,
A.I.R. 1951 S.C. 344.
3. Vinod v. State of H.P., A.I.R. 1959 S.C. 223.
4. 11 Adolph. & E. 253, 113 Eng. Rep. 411 (K.B. 1840).

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 1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 207

otherwise than among its own members was restricted by the ordinary
law of defamation. But the Parliamentary Papers Act, 1840, passed to
override the decision in the above case, laid down that no proceeding
for defamation lies for any publication made under the authority of
either House of Parliament.

The decision of Mr. Chief Justice Cockburn in Wason v. Walter 5 is

a landmark in the reporting of parliamentary proceedings. ' Under the
authority of this case, any fair and accurate report of parliamentary
proceedings is protected under the doctrine of qualified privilege.6

B. Privileges Claimed by the Legislatures

and Mot Recognized by the Courts

The legislatures and the courts have, however, not been able to
agree on all matters relating to privileges. There are some privileges
which the legislatures assert to be their legitimate claims but which have
been denied by the courts. The decisions reported in the law reports
and the Hansard in such matters run counter to one another creating
confusion and uncertainty.

(1) Power to Punish for Contempt and Judicial Review

The power of a House to punish for contempt has been described

as "the keystone of parliamentary privileges."7 In India the power of
the legislature to commit for contempt has been recognized,8 though
there is no express provision for this in the Constitution. Since under
the Constitution a legislature is not a court, no power to punish for its
contempt is mentioned under article 19(2) where exceptions to the right
of freedom of speech are enumerated. There is no mention of
"contempt of a legislature," although "contempt of court" is mentioned.
The power to punish for contempt is enjoyed by the legislature in India
by virtue of articles 105(3) and 194(3). There is a controversy over
the issue of whether the power to punish for its contempt is enjoyed by
the House of Commons because of its being a superior court or as a
privilege of Parliament. This question was examined at length in the
U.P. controversy.9

( 2) Extra- Territorial Power to Punish for Contempt

The question that has yet to be settled is whether the warrant for
committal for contempt can be executed beyond the limits of such state.

5. (1868) L.R. 5 Q..B.D. 73.

6. Frank Thayer, Legal Control of the Press 31 (1st ed. 1952). But in Jotish Chandra
v. Harisadhan , A.I.R. 1956 Gal. 433, the Calcutta High Court held that the principle of
the decision in the Wason case cannot be extended to this country in view of the Indian
law of defamation which does not exempt publication of the proceedings of the legisla-
ture from the purview of the law.
7. Beauchesne, Rules and Forms of the House of Commons of Canada 97 (4th ed. 1958).
8. Barua v. Barua , A.I.R. 1958 Assam 160. Also see Mistry v. Hasan, (1957)
I.L.R. Bom. 218.

9. In re , Under Art. 143, Constitution of India, A.I.R. 1965 S.C. 765, 780-81.

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208 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

The Constitution confers extra-territorial jurisdiction on Parliament

and not on state legislatures.10 But it was held in Medhiv.
Moraes 11 that state legislature has power to punish a person outs
state territory. The argument advanced was that it is inconc
that although the privilege can be exercised against every citizen
the border of that state, yet every citizen outside the border o
state can assail the dignity of the House with impunity.12
It is true that by article 194(3) the power, privileges and im
nities of the House of legislature will be the same as those of th
of Commons. But the Indian Parliament and state legislatures h
entirely different character in comparison to the House of Com
It is the Constitution which is supreme and sovereign. The sover
which is claimed by the Parliament in England, cannot be claim
any legislature in India in the literal and absolute sense.13
powers, privileges and immunities are to be regulated subject t
limitations prescribed in the Constitution. The form and struc
Indian society with its peculiar traits and social mileu should a
be ignored. A wholesale borrowing of English parliamentary pri
and their adherence and application has created constitutional cr
may create more of them in future. Keeping in view the powe
the legislatures under the Constitution the better view is that th
legislatures in India do not have extra-territorial jurisdiction in
This view was taken by the Privileges Committee of the Andhra
Vidhan Sabha. It was observed :
[T]he House of Commons has the power to commit any person for contempt of
the House and can issue a warrant of arrest of any person alleged to be guilty
of contempt. As a writ of our State legislature can run only within the
jurisdiction of the State we cannot, therefore, get any precedent in the matter
from the House of Commons.14

10. Clause (2) of article 245 provides: "No law made by Parliament shall be
deemed to be invalid on the ground that it would have extra-territorial operation."
11. A.I.R. 1954 Assam 201.
12. This view was followed in the Rajagopalachari case, 4 Privileges Digest 39 (195
13. In the advisory opinion the Supreme Court observed :
In a democratic country governed by a written Constitution, it is the Constitu-
tion which is supreme and sovereign. It is no doubt true that the Constitution
itself can be amended by the Parliament, but that is possible because Art. 368
of the Constitution itself makes a provision in that behalf and amendment of
the Constitution can be validly made only by following the procedure
prescribed by the said Article. That shows that even when the Parliament
purports to amend the Constitution it has to comply with the relevant mandate
of the Constitution itself. Legislators, Ministers and Judges all take oath of
allegiance to the Constitution, for it is by the relevant provisions of the
Constitution that they derive their authority and jurisdiction and it is to the
provisions of the Constitution that they owe allegiance. Therefore, there can
be no doubt that the sovereignty which is claimed by an legislature in India in
the literal absolute sense.

A.I.R. 1965 S.C. at 763.

14. 1 Privileges Digest 2 (1957).

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 209

The view taken by the Bombay High Court in Mistry v. Hasan

overlooks that our Constitution is federal and that the limitations to the
powers of all the organs of a state follow from that basic fact. The doct-
rine of "implied" and "ancilliary" powers may be available for enlarging
the ambit of a legislative power which a legislature possesses under a
constitutional grant but not for enlarging the territorial jurisdiction of
a legislature which is limited by the Constitution.
The matter had come up for decision in the Supreme Court in
Gunupati Keshavram v. Nafisul Hasan 16 but as the Court disposed of the
case on the ground that there was no infringement of article 22(2),
the question of jurisdiction to execute a U.P. warrant in Bombay was
not considered.

There are, however, possible remedies. Under article 245 '

Parliament may make laws for the whole or part of the territory
of India. Parliament is, therefore, certainly competent to make a law
making a warrant of contempt of one legislature executable anywhere
within the Union of India. In the alternative, Parliament may make
a law to the above effect under article 252 which empowers the
Parliament to legislate for two or more states and adoption of any
such legislation by any other state.

C. Privileges Claimed But Mot Tet Raised in a Court

An important privilege of the House of Commons is the right to

provide for the proper constitution of the body of which it consists, by
the issue of writs when vacancies occur during the existence of a
Parliament, and by enforcing disqualifications for sitting in Parliament.
If it is alleged that any candidate who has been elected is disqualified,
his right to sit and vote in the House of Commons must be decided by
the House itself.

Contrary to the English practice, articles 1 03( 1 ) and 1 92 ( 1 )

provide that questions as to disqualifications of members are to be
decided by the President or the Governor acting on the advice of the
Election Commissioner.

A claim may be made in future by a legislature that on analogy

from the practice of the House of Commons, they have a right to
enforce disqualifications for sitting in the legislature and the courts
have no right to interfere.
A reference to these categories suggests that in cases affecting
parliamentary privilege the tracing of boundary between the compe-
tence of the courts and the exclusive jurisdiction of either House is a
difficult constitutional question which has raised many controversies.
The following are some of the propositions which emerge :

15. (1957) I.L.R. Bom. 218.

16. A.I.R. 1954 S.C. 636.

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 210 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

( 1 ) Neither House of Parliament has the right to do anythi

in contravention of the law, in the assertion of its
privileges, so as to affect the rights of persons exercisable
outside the four-walls of each House.17

(2) Each House is the sole judge of the question, whether any
of its privilege has been infringed,18 and the courts have
no jurisdiction to interfere with the decision of the House
on this point.19 But whether either House does in fact
possess a particular privilege is a question for the court
to decide.20

(3) The courts deny the right of the House to define its own
privileges21 but given an undoubted privilege it is for the
House to be the judge of the occasion and of the manner
of its exercise.

(4) The courts will not interfere with the interpretation of a

statute so far as the regulation of internal proceedings
are concerned. Each House has unquestionable authority
as regards regulation of internal procedure. Courts of
law have no jurisdiction to interfere on the ground that
the rules of procedure of the House relating to proceed-
ings for breach of privilege have not been complied
with.22 Under the Indian Constitution it would be an
irregularity of procedure within the purview of clause (l)
of article 122 or 212. But if the matter goes to the root
of the jurisdiction the courts will interfere.23

These propositions disclose that there is hardly any controversy

pertaining to privileges enumerated in category A. However, the
privileges falling in category B insofar as they relate to the power to
puniśh for contempt being unfettered and absolute still seem to be
subject of controversy. The advisory opinion in the U.P. case involved
a number of implications relating to privileges referred to in category
B and have to be carefully examined.24 The privileges falling in
category C will also not be without serious implications whenever they
are brought before a court for their recognition.

17. May, The Law of Privileges, Proceedings and Usage of Parliament 171 (16th ed.
1957).
18. M. S. M. Sharma v. Sri Krishna Sinha, A.I.R. 1960 S.C. 1186 (second Searchlight
case) •
19. Barua v. Barua , A.I.R. 1958 Assam 160 ; Rajnarain v. Atma Ram , A.I.R. 1954
All. 319.
20. Burdett v. Abot , 14 East 1, 109, 104 Ene. Rep. 501. 543 ÍK.B. 1811Ì.
21. Case of Aylesbury Men , (1705) 2 Raym. 1105.
22. Piarelal v. State of M. P., A.I.R. 1955 Nag. 11.
23. Vinod v. State of H.P., A.I.R. 1959 S.C. 223.
24. For a brilliant examination of these implications, see P. K. Tripathi,
"Mr. Justice Gajendragadkar and Constitutional Interpretation," 8 J./.L./. 479, 532-83
(1966).

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 211

III. The Advisory Opinion and Its Ramifications

The various points that were raised and decided by the Suprem
Court in the reference under article 143 on the conflict of jurisdicti
between the Legislative Assembly and the High Court of Uttar Prade
mainly deal with the privileges enumerated in category B. The even
leading to the presidential reference may be briefly stated : On March 14
1964, one Keshav Singh was summoned by the Speaker of the Uttár
Pradesh Legislative Assembly to be reprimanded for having committ
contempt of the House for breach of the privilege of a member as
result of his publishing a vile and defamatory pamphlet. He appear
at the bar of the House but refused to give his name and stood wit
his back to the Speaker. He challenged the validity of the order
applying for a writ of habeas corpus and was releasd on bail by the
Lucknow bench of the Allahabad High Court, pending disposal of h
case. On March 21, 1964, the Legislative Assembly passed a reso
tion demanding Keshav Singh's re-arrest. It also demanded the
appearance under custody, at the bar of the House, of the two High
Court judges who haà granted bail, as well as Mr. Solomon, coun
for Èeshav Singh, to answer charges of contempt. Two days late
full bench of twenty-eight judges of the Allahabad * High Cou
excluding the two judges who had become parties to the case, issued
interim order staying the implementation of the order of the Legislative
Assembly to the effect that the two judges, and counsel for Keshav
Singh should be given an opportunity to explain. The warrants
arrest were withdrawn and the Speaker asked them to appear befor
the Committee of Privileges. On March 26, 1964, the two judg
moved the Allahabad High Court to quash this resolution. A
constitutional crisis was precipitating when the President intervened and
under article 143 asked the Supreme Court to advise on questions
which he referred to it. The following two questions form the
main theme of the case :

( 1 ) Has a court in India power of judicial review of an order

passed by a House of a legislature imposing punishment
for its contempt ?

(2) Who is to finally decide as to what are the privileges of

the House of Commons - court or legislature.
We shall now critically examine the answers to these questions
given by the Supreme Court.

A. Committal for Contempt and Judicial Review

The Supreme Court (majority opinion) was of the view that

legislatures in India do not discharge any judicial functions. Their
historical and constitutional background does not support their claim of
being regarded as courts of record. The very" basis on which the

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212 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205-

English courts25 treated a general warrant issued by the Hous

Commons on the footing that it was a warrant issued by a superio
court of record was absent in the present case. The Court, therefo
held that "it would be unreasonable to contend that the relevant po
to claim a conclusive character for the general warrant with the Ho
of Commons, by agreement, is deemed to possess, is vested in
House."26 Thus, the courts in India have a right to examine even t
general warrant issued by the legislature.
The assumption that the power to punish for contempt is enjoy
by the House of Commons as a court of record is assailable. Th
is evident from those very cases examined in the majority opinion
Mr. Justice Sarkar, in his dissenting opinion, therefore, very righ
came to the conclusion that writers of undoubted authority27 treated th
power to commit by a general warrant with the consequent depriva
of the court's jurisdiction to adjudicate on the legality of the impris
ment, as a matter of privilege of the House and not as a right posses
by it as a superior court.28
To ascertain whether the courts in India have power of judicia
review it is essential to consider whether or not the latter part of a
cles 105(3) or 194(3) is consistent with the material provisions of t
Constitution. For instance, article 32 emphatically brings out
significance of the fundamental rights conferred on the citizens o
India, to move the Supreme Court if their fundamental rights
contravened. Article 32 contemplates no exception in regard to
encroachment. It would, thus, appear illogical that the individual's
right to move the Supreme Court is whittled down if the privileg
claimed by the House contravenes the fundamental rights of t
citizens. The majority asserted that to the absolute constitutional ri
given by "article 32 no exception can be made and no exceptio
intended to be made by the Constitution by reference to any power
privilege, vesting in the Legislature of this country."29
This view is also open to criticism. There should be no artifici
or laboured limitation on the clear implications of the languag
articles 105(3) and 194 (3). 30 By virtue of these constitutional pro
sions, the court of law in India has the same position in relatio
privileges of legislature as the court of law in England has in regar

25. The English position, briefly stated, in the words of Anson is that íťthe co
of law in England would accept as conclusive a statement by the House of Comm
that a contempt has been committed without asking what that contempt may
been." 1 Anson, Law and Custom of the Constitution 197-98 (5th ed.).
26. A.T.R. 1965 S.C. at 786.
27. Ibid.
28. A.I.R. 1965 S.C. at 789.
29. A.I.R. 1965 S.C. at 786.
30. D. N. Banerjee, The Supreme Court on the Conflict of Jurisdiction Between
Legislative Assembly and the High Court of Uttar Pradesh: An Evaluation 58 (1966).

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 213

parliamentary privileges there.31 The Supreme Court's following

observation in the Searchlight 32 case seem to support this view :
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 extent of such repugnancy. It must not
be overlooked that the provisions of Art. 105(3) and Art. 194(3) are constitu-
tional laws and not ordinary laws made by Parliament or the State Legislatures
and that, therefore, they are as supreme as the provisions of Part III.88

This leads to the inference that the privileges shall override the
fundamental rights. In other words, it would mean that the privileges
which the legislatures in India are entitled to enjoy are the same as
that of the House of Commons notwithstanding the fact that it may
mean violation of or conflict with other provisions of the Constitution.
It is respectfully submitted that this general observation of their lord-
ships in the i Searchlight case has created much confusion. This is
evident from the advisory opinion's explanation regarding its implica-
tions :
We do not think it would be right to read the majority decision as laying
down a general proposition that whenever there is conflict between the provi-
sions of the latter part of Article 194(3) and any of the provisions of the
fundamental rights guaranteed by Part III, the latter must always yield to the
former. The majority decision, therefore, must be taken to have settled [only]
that Art. 19(1) (a) would not apply, and Art. 21 would.84

As regards the applicability of article 22, the question was left

open. It was observed that in an earlier case35 decided by the Supreme
Court it was held that article 22(2) also applied in matters of
detention on an order of the Speaker. The majority in the U.P. case
observed that in the Searchlight case it was not called upon to decide
the applicability of article 22(2). The Court, therefore, made it clear
that the obiter observations in the Searchlight case about the validity of
the decision in the Gunupati case should not be taken as having decided
the point in question. In other words, the majority opinion meant that
the question as to whether article 22(2) would apply to such a case
may have to be considered by the Court in a future case.36

To us the conclusion does not appear logical. When it is ad-

mitted that the observations about the correctness of the decision in the
Gunupati case were obiter and also not accurate, there is hardly any
necessity of saying that the matter will be considered in future case,
since the Gunupati case is already there to serve as a precedent. It is
binding on all courts in India till the Supreme Court itself overrules it.
31. Id. at 37.
32. M. S. M. Sharma v. Sri Krishna Sinha , A.I.R. 1959 S.C. 395.
33. Id. at 419.
34. A.I.R. 1965 S.C. at 766.

35. Gunupati Keshavram v. Nafisul Hasan , A.I.R. 1954 S.C. 636.

36. A.I..R. 1965 S.C. at 766.

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 214 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

On March 10, 1965, the Allahabad High Court37 delivered its

judgment on the writ petition of Keshav Singh which was pending
before it since March 19,1 964. The High Court while dismissing the
writ petition surprisingly did not make any reference to the advisory
opinion of the Supreme Court in the above matter. It held that the
provisions of article 22(2) of the Constitution would not apply to a
detention in pursuance of a conviction and imposition of a sentence of
imprisonment by a competent authority.38
This apparently runs counter to the Supreme Court decision in
the Gunupati case where it was observed that this "is a clear breach of
the provisions of Article 22(2) of the Constitution . . . which is quite
peremptory in terms."39 It may, however, be noted that the two cases
are easily distinguishable. In the Gunupati case the petitioner was taken
into custody to be produced before the Speaker of the Uttar Pradesh
Legislative Assembly to answer a charge of breach of privilege. In
the Allahabad case, the petitioner had been held guilty of contempt
and was sentenced to a week's imprisonment. The reasoning of the
Allahabad judgment is, therefore, logical and sound. The latest posi-
tion, therefore, seems to be that as regards the privileges article 19(l)(a)
and ina proper case article 22(2) will not apply but article 21 would.
The majority opinion that the guarantee under article 21 itself
would be an enough safeguard merits examination. It would plainly
be the duty of the Court to examine the question as to whether the
personal liberty of the citizen has been taken away according to the
procedure established by law. If, in a given case, the allegation made
by the citizen is that he has been deprived of his liberty not in accord-
ance with law, but for capricious or mala fide reasons, the court will
have the competence to examine its validity. And, it would be no
answer in such a case to say that the warrant issued against the citizen
was a general warrant and that a general warrant must stop all further
judicial inquiry and scrutiny.
This observation confuses ordinary legislation with a constitutional
provision.40 It is submitted that it is applicable only when there is
codification of the privileges. As long as Parliament and state legisla-
tures do not exercise their legislative power to codify privileges, the
latter part of clause (3) of articles 105 and 194 will operate to make
the privileges of the British House of Commons available regardless of
any limitations imposed by the fundamental rights. But as soon as the
privileges are codified all the fundamental rights in part III will
37. Keshav Singh v. Speaker , Legislative Assembly, U.P. , Lucknow , 1965 A.L.J. 18.
38. Id. at 20,
39. A.I.R. 1954 S.C. 636.
40. Irani, "The Courts and Legislatures in India," 14 Inťl & Comp. L.Q. 950,.
967 (1965).

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 215

operate as limitation on the legislative power by reasons of

article 13(2).41
The presidential reference relates to the conflict between arti-
cles 194(3) and 211. It is, therefore, necessary to examine their
implications to appreciate the functional relationship of courts and the
legislatures in India. The answers given by the Supreme Court hardly
offer any satisfactory clue as to how the above seemingly conflicting
provisions of the Constitution should be reconciled. Mr. Chief Justice
Gajendragadkar observed that clause (2) of article 194 emphasizes
that the freedom of speech conferred on the legislature is intended to be
absolute and unfettered. In other words, even if a legislator exercises
his right of freedom of speech in violation of article 211 he would not
be liable in any action in any court.
Does this mean that article 2 1 1 is meaningless ? In fact, arti-
cle 211 is in itself a sufficient defence. Articles 121 and 211 provide
that no discussion shall take place in Parliament or the legislature of
a state "with respect to the conduct of any Judge of the Supreme
Court or of a High Court in the discharge of his duties." Under these
articles a restriction is imposed by the Constitution itself on Parliament
or a legislature discussing the conduct of the judges of the Supreme
Court or High Court. This provision precludes political criticism of
the members of the judiciary from a privileged forum and ensures the
independence of the judicial organ of the state from political pressure
or influence.42

The unqualified and absolute terms in which the constitutional

prohibition is couched in articles 1 2 1 and 211 unambiguously indicate
that the conduct of a judge in the discharge of his duties can never
become the subject matter of any action taken by the House in exercise
of its powers or privileges conferred by the latter part of articles 105(3)
or 194(3). If a judge in the discharge of his duties commits contempt
of the House, the only step that can be taken against him is prescribed
under articled 11, i.e., upon a motion for presenting an address to the
President praying for the removal of the judge.
On a reading of articles 1 2 1 and 2 1 1 together two points clearly
emerge. First, if the judicial conduct of a judge cannot be discussed
in the House it is inconceivable that the same conduct can legitimately
be made the subject matter of action by the House in exercise of iti
powers under article 194(3). Second, although article 211 did not
give an enforceable right in view of article 194(2) it did indicate the
intention of the Constitution-makers that a judge is to be immune from
liability for contempt of the Assembly. The Constitution-makers
attached so much importance to the independence of the judiciary in
41. M. S. M . Sharma v. Sri Krishna Sinha , A.I.R. 1959 S.G. at 410.
42. The effect of article 211 was stated by the President of the Constituent
Assembly in these words : "Discussion on the conduct of judges is ruled out."

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216 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

this country that they thought it necessary to place it beyond any

controversy.

Let us now examine whether a judge can be held liable for

breach of privilege when his judgment contains reflections on a mem
of a House. In September 1960, a controversy over the appointmen
of a retired official as government pleader developed into a head-o
collision between the judiciary and the legislature in the State
Madras. There was severe personal indictment contained in the
judgment delivered by Mr. Justice Bal Krishna Ayyar who upbraided
the State Law Minister Subramanium (as he then was), for his role in
"unconsciously unworthy dispensation of governmental patronage."43
A resolution was moved in the State Assembly on September 5, 1960,
seeking to commit the court for breach of privilege of the Assembly.
The next day an advocate filed two petitions : one was for the issue
of a writ directing the Speaker to forbear from consideration or discus-
sion of the privilege motion as it would be violative of article 211. The
second petition prayed for action against the mover of the resolution
for contempt of court. The case, thus, took an opposite turn when
compared with the U.P. conflict. The court in the Madras case did
not have the opportunity to discuss the conflict between article 1 94 and
2 1 1 as the Assembly had been prorogued by the Governor and all
pending business including the privilege motion had lapsed. Mr. Chief
Justice Rajamannar, therefore, observed that it had become unneces-
sary to deal with the petition on merits. It was, however, observed
that "a judgment of this Court could not as such involve a breach of
any privilege of legislature."44

It is surprising that this case was not referred to by the Supreme

Court in the advisory opinion at all. As in the Madras case, so also in
the U.P. case the Court could have treated the resolution of the legisla-
ture as its contempt. The Supreme Court would have done well by
considering this eventuality also.

D. Who is Fined Authority ?

The second question as to "who is to finally decide as to what are

the privileges of the House of Commons - court or legislature" involves
the major problem regarding the relationship of courts and legislatures.
The majority opinion in the U.P. case has rightly concluded that
adjudication of such a dispute is entrusted solely and exclusively to the
judiciary of this country. The Court, therefore, held that the decision
about the construction of article 194(3) must ultimately rest exclusively
with the judiciary of this country.45

43. Ramachandra v. Aligiriswamy , A.I.R. 1961 Mad. 450.

44. Link, New Delhi, Sept. 18, 1960.
45. A.I.R. 1965 S.C. at 763-64.

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 217

The majority advisory opinion held that sovereignty which can b

claimed by the Parliament in England, cannot be claimed by any legi
lature in India in the literal and absolute sense. This conclusion was
arrived at after describing Diceyan features of a federal constitution :
[I]t is necessary to bear in mind one fundamental feature of a Federal Consti-
tution. In England, Parliament is sovereign; and in the words of Dicey, the
three distinguishing features of the principle of Parliamentary Sovereignty
are that Parliament has the right to make or unmake any law whatever; that
no person or body is recognised by the law of England as having a right to
override or set aside the legislation of Parliament, and that the right or power
of Parliament extends to every part of the Queen's dominions. On the other
hand, the essential characteristic of federalism is "the distribution of limited
executive, legislative and judicial authority among bodies which are coordinate
with and independent of each other."46

The supremacy of the Constitution is fundamental to the existence of

a federal state in order to prevent either the legislature of the federal
unit or those of the member states from destroying or impairing the
delicate balance of power which satisfies the particular requirements of
states which are desirous of union, but not prepared to merge their
individuality in a unity. This supremacy of the Constitution is pro-
tected by the authority of an independent judicial body to act as the
interpreter of a scheme of distribution of powers. Nor is any change
possible in the Constitution by the ordinary process of federal or state
legislation. Thus the dominant characteristic of the British Constitution
cannot be claimed by a federal constitution like ours.
Our legislatures have undoubtedly plenary powers. But these
powers are controlled by the basic concepts of the written Constitution
itself which is supreme and sovereign. Therefore, there can be no
doubt that the sovereignty which can be claimed by the Parliament in
England, cannot be claimed by any legislature in India.
One would hardly disagree with the above view. Modern trends
even in England are that the "sovereignty" of Parliament in either
theory .or practice cannot mean absolute or unlimited power, for
"parliamentary government not only means the power to make deci-
sions, it also means the exercise of effective restraints on the use of
power."47
Having examined the two major points raised in the advisory
opinion, we may make some general observations. One would like to
ask whether the Supreme Court could give its opinion against the two
judges of the High Court, i.e., if the Supreme Court had answered
question No. I48 in the negative, it is easy to see that they themselves
46. Id. at 762.
47. Donald Young, The British Parliament 250 (1st ed. 1962).
48. Whether on the facts and the circumstances of the case, it was competent fo
the Lucknow bench of the High Court ofUttar Pradesh consisting of Justices N. U. B
and G. D. Sehgal, to entertain and deal with the petition of the sentence of imprison
ment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contem
and for infringement of its privileges and to pass orders releasing Keshav Singh on b
pending the disposal of his said petition.

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218 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

would not be competent to deal with the matter for their positi
vis-a-vis privileges of Parliament would be no better in spite of
article 143. Though this answer was not occasioned by any fear that
the Supreme Court may itself expose to the kind of unusual situatio
the Allahabad High Court judges were subjected to (namely of being
called to the bar of the legislature), nevertheless, this could have be
not the unlikely consequence in practice by an imprudent legislature.

Here the objectivity of the Supreme Court itself may seem on

trial, as the dissenting judge observed that he was not one of those wh
felt that a Legislative Assembly could not be trusted with an absolu
power of committing contempt.49 The learned Judge did not conside
the social and political conditions obtaining in India. The prese
compositions of the State Assemblies, want of an effective oppositio
and the fact that the legislators generally do not possess sufficient
academic qualifications lead to the conclusion that there are positive
chances of the power being misused. A general or a non-speakin
warrant would be an engine of oppression. As has been aptly describe
by one commentator, the maturity of Parliament itself is in England
safeguard against any gross abuse of privilege by Parliament itself. C
we claim the same maturity in India? It is wise to remember th
Assemblies can be no less tyrannical and no less scrupulous tha
individuals.50 Judicial review of the privileges appears to be the on
safeguard for the protection of the liberties.51

Our immediately preceding observations very well apply to the

answer given by the majority to question No. 552 of the presidentia
reference. Had it been held that a judge who deals with a petitio
against the order of a legislature for its contempt commits contempt
the said legislature, it would necèssarily follow that the Supreme Cou
would commit the contempt in dealing with the matter even under
reference under article 143.

49. A.I.R. 1965 S.C. at 810.

50. 2 Basu, Commentary on the Constitution of India 600 (3d ed. 1965).
51. Speaking of the majestic functions of the judiciary Lord Sankey observed :
Amid the cross-currents and shifting sands of public life the law is like a great
rock upon which a man may set his feet and be safe, while the inevitable
inequalities of private life are not so dangerous in a country where every citizen
knows that in the Law Court, at any rate, he can get justice.
Quoted in Justice William O. Douglas, Studies in American and Indian Constitutional Law
336 (1955).
52. Whether a judge of High Court who entertains or deals with a petition
challenging any order or decision of a legislature imposing any penalty on the petitioner
or issuing any process against the petitioner for its contempt or for infringement of its
privileges and immunities or who passes any order on such petition commits contempt
of the said legislature and whether the said legislature is competent to take proceedings
against such a judge in the exercise and enforcement of its powers, privileges and
immunities.

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 219

It is interesting to note that the answer to question No. 5 was

confined to cases in relation to the contempt alleged to have been com-
mitted by a citizen who is not a member of the House outside the
four-walls of the legislature. This does not cover the case of Keshav
Singh who was alleged to have committed a breach of privilege inside
the House also.

The majority relied upon "weak and assailable premises" like the
theory of separation of powers.53 In a parliamentary form of govern-
ment, the cabinet system with its overlapping of personnel between
executive and legislature results in "confusion" of power rather than
separation of power.54
V. Conclusion

Privileges have been conferred not with a view to indic

eminence of the members but to assist them in discharging their
as members. It is not consistent with the dignity of the Ho
initiate penal proceedings for breach of privilege in the case of
daf amatory statement. Also, privilege should not be looked on a
a convenient excuse to make any wild remark in the House which
be made in the normal course of business. The law of parliamen
privileges is still in a nascent state in India. There is an urgent
sity for carrying on research in various directions. One of them
bearing of the English precedents in relation to the provisions
Constitution.55 It is inevitable that many of the parliamentary
and practices evolved under the , unwritten Constitution of En
which itself rests on the sovereignty of Parliament, will have t
modified to be in line with the express injunctions of the Const
of India.56

The framers of the Indian Constitution in fear of being accused

of paying insufficient attention to the institutions needed for a new
53. A letter of Dr. P. K. Tripathi, published in the Hindustan Times,
New Delhi, Jan. 30, 1965.
In arriving at the conclusions they did, the majority have relied upon weak
and assailable premises like the federal nature of the Constitution, or the theory
of separation of powers - premises no longer regarded as of great consequence
even in the USA for instance, where there is considerably more of both,
federalism as well as separation of powers. These striking features of the
majority opinion make it desirable and even imperative to examine it indepen-
dently as well as in the light afforded by the minority opinion. Nothing will
evince greater respect for the court than such examination.
Ibid .
54. Wheare, Federal Government 86 (3d ed. 1956).
55. In Jotish Chandra v. Harisadhan, A.I.R. 1956 Gal. 433, the English principle
that fair and faithful report of parliamentary proceedings is not acceptable, was held
not applicable because of the law of defamation under section 499 of the Indian Penal
Code, 1860. On appeal the question was left open. Jotish Chandra v. Harisadhan , A.I.R.
1961 S.G. 613.
56. "Legal fiction can hardly introduce historical facts from one country to
another." A.I.R. 1965 S.G. at 785.

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220 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

democracy looked too exclusively and rather excessively to the formal

structure. They did not realize the difficulties of introducing a political
system into a setting far different from the one in which it originated.57
Some of the privileges of Parliament enjoyed by the House of Commons
are not applicable in India because of other provisions of the Consti-
tution. A question as to " disqualification of a member" which is a
question of privilege in England is not such a question under our
Constitution for under articles 103 and 192 the decision of such
questions is left to the President or Governor acting on the opinion of
the Election Commissioner. The decision in the Searchlight case that
privileges of Parliament are those of the House of Commons notwith-
standing other provisions of the Constitution, renders these provisions of
the Constitution a dead letter. In the U.P. case, however, the Supreme
Court restricted the wide amplitude of its interpretation in the Searchlight
case.

Articles 105, 201, 194 and 211 have brought the

the legislature to a head-on collision. In Surendra Moh
Choudhary58 the Orissa High Court held the speech in
clearly a contempt of the court. It, however, expressed
take action on account of absolute immunity under ar
renders article 211 otiose. If article 211 be empha
situations arise as in the Madras case. It is, theref
that all the legislatures in India may make a rule of pro
ing a punishment for violation of article 211, thus pay
to both the constitutional provisions. Alternately, a
amendment of articles 1 94 and 1 05 may be made so as to m
to other provisions of the Constitution.
It is further suggested that the privileges given to P
the legislatures in articles 1 05 and 1 94 should mean s
privilege as the House of Commons possesses in exercise
authority and not as the high court of Parliament. An
pretation is bound to bring a conflict between the two imp
of the state - the legislature and the judiciary. The th
the state - executive - may also be involved.
Although the Constitution envisages the codification
they have not been codified so far. The reasons are : First, the
privileges of the House of Commons cover a wide variety of subjects,
their outstanding merit being their elasticity. Any attempt to codify
them would mean sacrificing elasticity. Second, in England it is estab-
lished at common law that where the House does not specify any
grounds for commitment for contempt, the courts are powerless to
inquire into the grounds. Hence, in cases of serious contempt the
House may shield itself from judicial interference by not specifying the
57. Park & Tinker, Leadership and Political Institutions in India 38 (1960).
58. A.Ï.R. 1958 Orissa 160.

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1967] JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES 221

grounds of commitment. Third, the Supreme Court decision in th

Searchlight case has proved a deterrent for the codification of privileges.
The Court held that as long as Parliament does not exercise its legis-
lative power to codify its privileges, the latter part of clause (3) o
articles 105 and 194 will operate to make the privilege of the British
House of Commons available, regardless of any limitations imposed by
the fundamental rights, but that as soon as the Parliament seeks to
legislate, all the fundamental rights will operate as limitations on the
legislative power by reason of article 13(2).
On the other hand, there is an urgent necessity to codify the
privileges as was observed by Mr. Justice Subba Rao (as he then was)
in his dissent in the Searchlight case :
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 legislature instead
of keeping this branch of law in a nebulous state, with the result that a citizen
will have to make a research into the unwritten law of the privileges of the
House of Commons at the risk of being called before the Bar of the
Legislature.59

The following grounds may be given to support codification : First,

the English system of giving the unfettered freedom to legislature is
not applicable in India. England has no written constitution and there
is no legal limitation oli the omnipotence of Parliament. The courts
there are powerless to review the acts of Parliament. In India the situation
is otherwise. Validity of a legislative enactment in India is open to
judicial review. That being the position, there is no reason why we
cannot trust our courts with similar power as regards the privileges of
Parliament if they be codified. Second, in England the bulk of ordinary
law is still uncodified. In India the statute law has become the rule
and very few branches of the law still rest on common law. In th
absence of codification, the position on many matters is still confusin
ànd this is likely to lead to more breaches of privilege than woul
have taken place under a codified law. Third, the maturity of
Parliament in England is itself a safeguard against any gross abuse of
privilege by Parliament. We have not attained that maturity in India
so far. It is wise to remember that Assemblies can be no less tyrannical
and no less scrupulous than individuals. The Supreme Court and High
Court decisions give no reason for the apprehension that the judiciary in
India would not be zealous enough to safeguard the freedom of the
legislature or would not give liberal interpretation to the codified text
as may be necessary to meet unforeseen situations.
At present, there appears to be little likelihood of the codification
of the privileges. There may be a move for a constitutional amend-
ment to protect the legislatures from judicial interference in matters of
privilege. But it would be difficult to frame such an amendment
without opening the way to arbitrary actions on the part of the
59. A.I.R. 1959 S.C. at 419.

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222 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 205

legislature which might threaten the constituional rights of the cit

and the rule of law. The judiciary would certainly be unhappy
such an amendment.60

As against these two opposed views, the Secretary to the Legislative

Department of the Ministry of Law has favoured a middle course and
suggested,61 the appointment of an influential commission consisting of
eminent judges, jurists and legislators, to examine the jurisdiction of
courts and Parliament in cases affecting parliamentary privileges and
recommend measures to define the thin line between the competence of
courts and the exclusive jurisdiction of either House of Parliament in
this matter. He has also suggested that clause (2) of article 19 relating
to contempt of court be amended so as to include a reference to
Parliament ancļ state legislatures. This, if done, would be in accord
with the decision of the Supreme Court and in ķeeping with the spirit
of the Constitution and at the same time would not unduly restrict the
freedom of the press.

Therefore, it may be said that it is not by extending the scope of

the privileges or by making them arbitrary or by trying to curb the
rights of ordinary citizens to seek remedy in a court of law that members
can sustain the foundations of parliamentary privilege but only by
imposing on themselves restraint, caution and prudence in the exercise
of those privileges. If this attitude is adopted, we can confidently
hope that "what happened [in the U.P. controversy] will never happen
again, and our Constitution will be worked by the different organs of
the State amicably, wisely, courageously and in the spirit in which the
makers of the Constitution expect them to act."68

Z). C. Jain*
60. Forrester, ť 4 Parliamentary Privilege - An Indian Constitutional Crisis," 18
Parliamentary A fair s 196, 200 (1965).
61. See Pylee, Constitutional Government in India 426 (1st ed. 1960).
62. A.I.R. 1965 S.C. at 810.
♦M.A., LL.M.; Research Officer, The Institute of Constitutional and Parlia-
mentary Studies, New Delhi.

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