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IN SUPREME COURT OF INDIA Page 1 of 54

Vs.

RESPONDENT:
SHRI SRI KRISHNA SINHA AND OTHERS

DATE OF JUDGMENT:
12/12/1958

BENCH:
DAS, SUDHI RANJAN (CJ)
BENCH:
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
SUBBARAO, K.
WANCHOO, K.N.

CITATION:
1959 AIR 395 1959 SCR Supl. (1) 806
CITATOR INFO :
R 1960 SC1186 (1,2,5,6,8)
D 1961 SC 613 (4)
R 1962 SC 36 (36)
F 1963 SC 996 (11)
C 1965 SC 745 (36,37,46,ETC.,)
R 1967 SC1639 (8)
RF 1967 SC1643 (22)
R 1968 SC1313 (10)
RF 1971 SC1132 (49)
R 1973 SC 106 (102)
RF 1973 SC1461 (648)
R 1982 SC 710 (21)

ACT:
State Legislature, Privilege of-Power to Prohibit
Publication of proceedings including portions expunged by
the Speaker--Publication, if a breach of privilege-If can
prevail over the fundamental right to freedom of speech and
expression--Freedom of the Press Scope and extent-
Constitution of India, Arts. 194(3), 19(1) (a).

HEADNOTE:
The petitioner, the Editor of the English daily newspaper
Searchlight of Patna, was called upon by the Secretary of
the Patna Legislative Assembly to show cause before the
Committee of Privileges of the Assembly why appropriate
action should not be taken against him for the breach of
privileges of the Speaker and the Assembly for publishing in
its entirety a speech delivered in the Assembly by a member
thereof, portions of which were directed to be expunged by
the Speaker. It was contended on behalf of the Petitioner
that the said notice and the proposed action by the
Committee were in violation of his fundamental right to
freedom of speech and expression under Art. 19(1)(a) and of
the protection of his personal liberty under Art. 21 of the
Constitution, and that, as an editor of a newspaper, he was
entitled to all the benefits of the freedom of the Press.
The respondents relied on Art. 194(3) Of the Constitution
and claimed that the proceedings in the House as those in
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the British House of Commons were not usually meant to be
published, and in no circumstances was it permissible to
publish the parts of a
807
speech which were directed to be expunged and, therefore,
formed no part of the official report and such publication
was in clear breach of the privileges of the Assembly. The
points for determination were:
(1) Could the British House of Commons entirely prohibit
the publication of its proceedings or even of such portions
of them as had been directed to be expunged ?
(2) Assuming that the British House of Commons had such
power and consequently the State Legislature also had such
power under Article 194(3), could the privileges of the
Legislature under that Article prevail over the fundamental
right guaranteed by Art. 19(1)(a)?
The Bihar Legislature not having admittedly made any law
governing its powers and privileges under Entry 39 of List
II of the Seventh Schedule to the Constitution, the question
naturally was as to what were the powers, privileges and
immunities of the British House of Commons at the
commencement of the Constitution.
Held (per Das, C. J., Bhagwati, Sinha and Wanchoo, jj.)
that there could be no doubt that the liberty of the Press
was implicit in the freedom of speech and expression
guaranteed to a citizen under Art. 19(1)(a) of the
Constitution and that must include the freedom of
propagation of ideas ensured by the freedom of circulation.
Romesh Thappar v. State of Madras, [1950] S.C.R. 594,
Brijbhushan v. The- State of Delhi, [1950] S.C. R. 605 and
Express Newspaper Ltd. v. Union of India, [1959] S.C.R. 12,
relied on.
The liberty of the Press in India flowed from this freedom
of speech and expression of a citizen and stood on no higher
footing and no privilege attached to the Press as such.
Arnold v. King Emperor, (1914) L.R. 41 I.A. 149, referred
to.
A survey of the evolution of Parliamentary privileges in
England showed beyond doubt that at the commencement of the
Indian Constitution, the British House of Commons had the
power or privilege of prohibiting the publication of even a
true and faithful report of the debates or proceedings that
took place in the House, and with greater reason, the power
and privilege of prohibiting publication of an inaccurate or
garbled version of such debates and proceedings. These were
the powers and privileges that Art. 194(3) conferred on
State Legislatures and Art. 05(3) conferred on the Houses of
Parliament in India.
It would not be correct to contend that Art. 19(1)(a) of the
Constitution controlled the latter half of Art. 194(3) or of
Art. 105(3) Of the Constitution and that the powers,
privileges and immunities conferred by them must yield to
the fundamental right of the citizen under Art. 19(1)(a).
As Arts. 194(3) and 105(3) stood in the same supreme
position as the provisions of Part III of the Constitution
and could not be affected by Art. 13, the principle of
harmonious construction must be adopted.
808
So construed, the provisions of Art. 19(1)(a), which were
general, must yield to Art. 194(1) and the latter part of
its cl. (3), which are special, and Art. 19(1)(a) could be
of no avail to the petitioner.
Ramjilal v. Income-tax Officer, Mohindergarh, [1951] S.C.R.
a 127 and Laxamanappa Hanumantappa v. Union of India, [1955]
1 S.C.R. 769, applied.
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Anand Bihayi Mishra v. Ram Sahay, A.I.R. (1952) M.B. 31,
disapproved.
Gunapati Keshavyam Reddy v. Nafisul Hasan, A.I.R. (1954)
S.C. 636 explained as having proceeded on concession by
counsel.
Nor could the petitioner complain of any breach, actual or
threatened, of his fundamental right under Art. 21 of the
Constitution since Art. 194(3) read with the rules, framed
by the Bihar Legislative Assembly in exercise of its power
under Art. 208 of the Constitution, laid down the procedure
for enforcing its powers, privileges and immunities under
that Article and any deprivation of his personal liberty as
a result of the proceedings before the Committee of
Privileges would be in accordance with procedure established
by law.
Held, further, that it was not for this Court to prescribe
any particular period for moving a privilege motion so as to
make the subject matter of the motion a specific matter of
recent occurrence within the meaning of the said rules.
This was a matter for the speaker alone to decide.
The time within which the Committee of privileges was to
submit its report was a matter between the House and its
Committee and the party whose conduct was the subject-matter
of investigation could have no say in the matter.
The effect in law of the order of the Speaker to expunge a
portion of the speech of a member might be as if that
portion had not been spoken and a report of the whole speech
despite the speaker’s order might be regarded as a perverted
and unfaithful report and Prima facie constitute a breach of
the privilege of the Assembly. Whether there had in fact
been a breach of the privilege of the Assembly was, however,
a matter for the Assembly alone to judge.
Per Subba Rao, J.-The second part of Art. 194(3) was clearly
a transitory provision and had no higher sanctity than that
of the first. While a law when made by the State
Legislature under the first part would, by virtue of Art.
13(2), be void to the extent it contravened the provisions
of 19(1)(a), unless saved by Art. 19(2), there could be no
reason why the powers, privileges and immunities conferred
under the second part should be free from the impact of the
fundamental rights.
As there was no inherent inconsistency between Arts.
19(1)(a) and the second part of Art. 194(3), full effect
must be given to them both on the principle of harmonious
construction. The
809
wide powers and privileges enjoyed by the Legislature and
its members should, therefore, be so exercised as not to
impair the fundamental rights of the citizen, particularly
of one who was not a member of the Legislature. In case of
a conflict, Art. 19(1)(a) must prevail over Art. 194(3) and
not vice versa and the privilege must yield to the extent it
affected the fundamental right.
Gunupati Keshavarm Reddy v. Nafisul Hasan, A.I.R. (1954)
S.C. 636, applied.
At the commencement of the Constitution the House of Commons
had no privilege to prevent the publication of a correct and
faithful report of its proceedings, save those in respect of
secret sessions held under exceptional circumstances, and
had only a limited privilege to prevent mala fide
publications of garbled, unfaithful and expunged reports of
the proceedings. In the instant case, neither the notices
nor the documents enclosed therewith disclosed any mala
fides on the part of the petitioner or that he had knowledge
that any portion of the speech had been expunged by the
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Speaker. Consequently, even supposing Art. 194(3) prevailed
over Art. 19(1)(a), the petitioner was entitled to succeed.
Wasan v. Walter, (1868) L.R. 4 Q.B. 73, relied on.

JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 122 of 1958.
Petition under Article 32 of the Constitution of India for
the enforcement of Fundamental rights.
1958, Oct. 16, 17, 28, 29, 30. Basdeva Prasad and Naunit
Lal, for the petitioner :-The main question to be considered
in the case is as to whose privilege has been involved and
violated-those of the press or the House of the Legislature.
Notice served on the petitioner by the Privileges Committee
of the Bihar Assembly is illegal and invalid and the
Constitution of the Privileges Committee is illegal as the
Chief Minister of the State Dr. S. K. Sinha himself has been
the Chairman of the Committee.
On May 30, 1957, there was a debate in the Bihar Legislative
Assembly when M. P. N. Singh, one of the oldest members of
the Assembly, made a speech the gist of which was a
criticism of the administration of Bihar as run by Dr. S. K.
Sinha, the Chief Minister, and cited certain instances of
favouritism. At this stage the Speaker held that a portion
of the speech was objectionable and ordered it to be struck
off and expunged. It was a general statement. No specific
102
810
direction was given to the Press. The opposite party was
claiming the right to prohibit all publication of
proceedings a right which the House of Commons possesses
with its own history, but never exercises it. The speech
was made on May 30, 1957, and the official authorised report
was published and made available on January 2, 1958. ’The
Search Light’, being a daily newspaper, came out on May 31
with what happened in the Assembly. A privilege motion was
said to have been moved and referred to the Committee of
Privileges; no voting was taken and no time limit was given
for the presentation of the report which was required under
the rules of the House. If no time limit was prescribed
then under rule 215 the report was to be submitted within a
month.
It was after more than a year i.e. on August 18, 1958, that
the petitioner received a notice to show cause why
appropriate action should not be taken against him for the
breach of privilege. This showed malice on the part of the
Privileges Committee.
The action of the Privileges Committee raised constitutional
points affecting the petitioners fundamental right of
freedom of expression.
The Legislature cannot have such a privilege as will deprive
the citizens of their fundamental rights which are
guaranteed by the Constitution, specially the right of
freedom of expression under Art. 19(1) (a). In the actual
motion the charge was that the speech was published in its
entirety, " Jyon ka Tyon " ; but the motion adopted by the
Privileges Committee, the charge against the Editor was that
he published a perverted and unfaithful report of the
proceeding, and the expunged portions of the speech was also
published in derogation of the order of the Speaker.
[Wanchoo, J.-If the publication of expunged portions would
make a report false, how could it be anything other than
perverted and unfaithful?]
[Daphtary:It was unfaithful as it was not a true report, as
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portions expunged had also been published].
The reference was not by the House but by the Speaker. It
was open to the petitioner to challenge the procedure, as
one of the grounds of his objection
811
was that the motion was not put to vote. Important
questions arose as a result of the proceedings, one of them
being :-
Can a Committee presided over by a Chief Minister who has
such an interest in the matter as might give him a real bias
be deemed to be empowered to carry on the investigation and
recommend punishment ?
[Daphtary:I object to the use of the word ’bias’. It is not
supported by the petition or the plea].
The allegation of mala fide is much stronger than bias.
[Chief Justice.-Art. 19(1) had granted fundamental rights
against law made by the State. There were no fundamental
rights against the Constitution itself. If the Constitution
provided that the House shall have certain privileges then
it was clear that there cannot be a question of fundamental
rights against the Constitution. If the Constitution
provided that the House shall have the privileges that so
much shall be published then Art. 19(1) will not prevail
against the Constitution].
I rely on Amendment One of the American Constitution on
which the fundamental rights in Art. 19(1) are based.
Cooley’s " Constitutional Law " (P. 350).
Express Newspapers (Private) Ltd. v. Union of India, [1959]
S. C. R. 12, 121.
[Sinha, J.-In America people were more forthright in their
views and opinions and that we could have better guidance
from English precedents than from American.]
Article 194 (3) which dealt with powers, privileges and
immunities of the Legislatures were subject to the
provisions of the Constitution. Article 194(3) cannot be
said to abridge the provisions of Art. 19(1) which
guaranteed fundamental rights. Article 194(3) of the
Constitution provided the procedure of the British House of
Commons in regard to powers, privileges and immunities.
Even then any power or privilege which militated against the
fundamental rights cannot be deemed to be valid. The
Legislature can follow the procedure of the British House of
Commons, but this
812
privilege of legislature cannot go contrary to the fun-
damental rights. If such a privilege is allowed, the
Legislature would assume sovereignty as against the
Constitution itself under the garb of privileges.
Even in England, the ban on the publication of the
proceedings in Parliament had ceased to exist in practice
after the 16th century.
The proceedings of legislatures are open to the public and
the citizens have a right to know whatever happens in the
House and also to know as to how any portion of the
proceedings is ordered to be expunged.
The Blitz case Gunupati Keshavram Reddy v. Nafisul Hasan, A.
I. R. 1954 S. C. 636 in which the Supreme Court ordered the
release of a correspondent who had been arrested by the
Speaker of the U. P. Assembly in connection with breach of
privilege. He was not produced before the Magistrate and on
Habeas Corpus petition, he was released. Article 20
prevailed and it was established that Art. 194(3) could not
go against Art. 20 guaranteeing a person’s liberty.
[Chief Justice.-If the privileges were given by the
Constitution itself, then the question of fundamental rights
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does not come at all. Article 19(1) is against law made by
the State Government. Fundamental rights do not prevail
against the Constitution. The counsel could take the stand
that Bihar Legislative Assembly has not got the powers which
it claims. The question was whether the Assembly had such
powers under the Constitution].
In England there was no written constitution. The House of
Commons had claimed the right to prohibit publication but in
fact and in actual practice never exercised that right. The
American Constitution also granted full freedom to publish
the proceedings of the House including the expunged
portions. That being so, it was for the Court to interpret
Art. 194(3) harmoniously with Art. 19(1) and the provisions
of the former had to be consistent with fundamental rights
granted under the Constitution. In England the Parliament
is supreme and there is no written constitution, but here
the Constitution is supreme. The right to expunge could be
claimed only for the purpose of
813
official record. They could not claim a total prohibition.
There was a common basis for this in both American and
English democratic systems. The people, had the right to
know as to what was happening in the House to enable them to
exercise their franchise properly. If people have a right
to see and hear the proceedings, other people who are not
able to be in the House have a right to know through publi-
shed proceedings.
Wason v. Walter, (1868) L. R. IV Q. B. 73, 95.
(The counsel refers to the standing orders in the British
House of Commons quoting May’s Parliamentary Practice).
Article 194(1) in its entirety was subject to the provisions
of the Constitution and under Art. 19 to the provisions of
the Constitution. If under Art. 194(3) the application of
the House of Common laws provided complete immunity, then it
was impossible to continue the consistency of Art. 194(1)
and Art. 194(3). Article 194(1) provided clearly that it
was subject to the provisions of the Constitution in the
matter of freedom of speech, etc., in the State Legislature.
It was impossible to contend that Art. 194(3) was not
subject to the provisions of the Constitution. Under Art.
194(1) it was made clear that a member of the House of
Legislature did not have the same immunity as had a member
of the House of Commons who enjoyed complete freedom and had
no restriction of whatever sort. Here Art. 194(1) made the
freedom of speech in the House subject to the provision of
the Constitution.
[The Chief Justice.-It might be that one of the immunities
was singled out and made subject to the provisions of the
Constitution].
Privileges and rights of the House of Commons extended also
to elections. The power of the House of Commons to fix its
own elections could not be challenged in a tribunal or a
court. Here in India, elections were held under a separate
authority provided by the Constitution under Ch. XV and
such elections could be challenged and appeared against in
the High Court, tribunals, etc. In England, the validity of
an election was to be determined by the House
814
of Commons itself or its tribunal. Such a privilege could
not be claimed by a House of Legislature here.
[The Chief Justice.-Here we had powers, privileges and
immunities which may be prescribed by law by legislation
under Art. 194(3) and it was Part XV in the Constitution
which provided for elections. It showed that powers,
privileges and immunities had been separated and dealt with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 54
separately].
The whole scheme of the Constitution had to be taken into
account. The reasonable interpretation of Art. 194(3) was
that, like Art. 194(1) it was also in its entirety made
subject to the provisions of the Constitution.
The next point was that the Chief Minister could not be the
Chairman of the Committee of Privileges with quasi-judicial
powers to summon witness and demand production of evidence.
In this case, the Chief Minister had a certain interest in
the matter and this was against all principles of natural
justice:
[The Chief Justice.-Whether Counsel claimed that the Chief
Minister could not be at all the Chairman of the Committee
or that the Chief Minister or anybody should not be the
Chairman or in the Committee if he had an interest].
I put it on the ground of interest only. Voting took place
in the Committee and if the Chief Minister had not been
there might be a tie. (Quoted Rule 62 of the Standing Orders
of the House of Commons to show that the Chief Minister
could not be the Chairman of the Committee of Privileges).
I will now deal with and challenge the procedural aspect of
the matter. It was the House alone which had a right to
refer the matter of breach of privilege. Rule 207 of the
Assembly clearly laid down that-the matter must be of recent
occurrence. In the House of Commons, it was accepted that "
recent occurrence " could not go beyond ten days.
The privilege motion got precedence over even adjournment
motions. Then under r. 215, no time limit was fixed by the
House for the report to be submitted, as such the report was
to be submitted within
815
a month. The House had not extended the date for the
submission of the Report by the Privileges Committee and in
the absence of such extension, the reference not being
reported, the Committee became " functus officio ". It was
against this that the petitioner sought to move the
Honourable Court for prohibition of the proceedings against
him and for the vindication of his fundamental rights.
Either the Committee had become " functus officio " or the
non-submission of the report within the stipulated time
under r. 215 first proviso could only mean that the
Committee had nothing to recommend. Regarding the procedure
adopted, Rules 208 and 209 had to be taken together. There
were objections to the motion at the time it was moved. The
publication of a true and full account could not be termed
unfaithful and perverted. It was for the court to determine
whether there has been a breach of privilege committed.
[Sinha, J.-Is it our jurisdiction? Is it not the exclusive
function of the Parliament ?]
[The Chief Justice.--What was a privilege and what was not
could be stated but whether there was a breach of privilege
or not it was for the House to say].
There was no breach of privilege. What we are claiming is
that the reporting of proceedings is not a privilege the
House can claim. Then my other point is that I have not
published the expunged portion.
[Daphtary, Solicitor-General: It is for the House to
decide].
Am I not entitled to come to this Court as custodian of my
fundamental rights, that powers are claiming to punish and
proceed against me and coerce me? The question was whether
one was not entitled to bring a petition under Art. 32
against it ?
C. K. Daphtary, Solicitor-General for India, B. K. P.
Sinha and S. P. Varma, for the respondents. The question to
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be considered is how much of the portion which contained all
the allegations fell under Art. 32. The Article could deal
only with breach of fundamental rights. If any of the
powers or exercise of the
816
powers and privileges and the defence and assertion of any
of the immunities involved, were a breach of fundamental
rights or were something contrary to fundamental rights,
even then the powers and the privileges were good. They
could not be considered bad as offending those rights. It
was not open for someone to come and say that there was no
such power and immunity when such powers and immunities were
provided under Art. 194(1) and was made part of the
Constitution. Every citizen had been given the right of
freedom of speech by the Constitution. A member of the
House of a Legislature also enjoys that freedom by virtue of
being a citizen. Only rules and regulations made in excess
of legislative powers could be questioned and not the powers
themselves. Then there was the question of amendment of the
Constitution which was not affected by fundamental rights.
The result would be that by amendments of the Constitution
fundamental rights could be modified or removed. That was
what was done by amendments in Arts. 31(a) and 31(b) where
the rights were modified. Article 194 was put there in the
Constitution by the framers simultaneously with other
provisions. It therefore had an equal footing with other
provisions of the Constitution and unless expressly stated
in the provision itself could not be made subject to other
provisions of the Constitution. All parts of the
Constitution were made by the same people and were equal.
One could not be made more important than the other.
[Subba Rao, J.-What was the idea then in giving a paramount
position to fundamental rights in our Constitution ?]
They are fundamental to human beings.
[Subba Rao, J.-If the legislature had made a law defining
its powers and privileges, could that law be valid if it
infringed the fundamental rights?]
The Constitution itself said that powers, privileges and
immunities would be such as the Legislature would lay down.
Even such a law would not be against the fundamental rights.
It would be in exercise of the constituent law. The
Constitution makers
817
thought it best that they would not define the powers of the
Legislature and left to the Legislature to decide what
powers it will have.
[Subba Rao, J.-When a law was made by the Legislature it was
subject to fundamental rights under Art. 19 but when the
Legislature made laws relating to its powers, etc., it was
not subject to Art. 19. Was that not an anomalous situation
?]
There was no anomaly at all. The Constitution makers
themselves had said what powers and privileges of the
Legislature were. When it was so made as a law by virtue of
powers granted by the Constitution then it could not be
subject to fundamental rights. That what the Constitution
itself had chosen to give was subject to fundamental rights
was not a sound argument.
[Bhagwati, J.-The fundamental rights were on a high pedestal
and any other provisions should not infringe them].
What was constitutional was constitutional. Unless there
were provisions made expressly subject to other provision or
provisions they had all the same footing and were on the
same plane. Wherever the Constitution makers wanted to say
it, they said so. They were otherwise independent of each
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other, unless stated to the contrary. No part of the
Constitution could be said to be void and if one part was
struck down then it would mean that the Constitution itself
was being struck down. Article 194 had to be given the
status of Constitution law.
The first point was that powers, privileges and immunities
given by Art. 194(3), were not subject to Art. 19. Having
established that, the second point that would arise would be
what were those powers and privileges. What was the ambit
of those powers.
In England there were instances to show that breach of
privilege was treated as contempt of the House, disobedience
of the Speaker’s order was contempt. (Refers to the standing
order 62 of the House of Commons).
103
818
The argument advanced by the other side was fallacious.
[Quotes from May’s Parliamentary Practice].
Standing order 62 did not apply to the Committee of
Privileges. It applied to select committees and standing
committees but not to the Committee of Privileges, which was
a sessional committee appointed at the beginning of each
session. The House of Commons had powers to make rules from
time to time and regulate its own procedure. All that the
court had to satisfy itself about was whether or not the
House had the power to follow up a breach of privileges.
[Bhagwati, J.-Whether power to make rules had not been
within limits. In an effort to protect immunities and
privileges one could not expand the privileges and
immunities].
All the precedents of the House of Commons were not
available dating back to 16th or 17th Century but there was
enough in May’s Parliamentary Practice to support the
argument. So long as the debates were correctly and
faithfully reported the right to prevent publication was not
enforced. Journalists were present in the House galleries
by the leave and licence of House and on sufferance. What
the Speaker said was not to be published, it could not be
published.
[Subba Rao, J.-What was the purpose of expunging a portion
of the proceedings ?]
The expunged portion was not deemed to have been stated in
the House. There was the case in the House of Lords where
an expunged portion was published and became breach of
privilege. The privilege of the House to control
-publication was always there though it might not be
exercised. The House, was always zealous of its privileges.
Even here in India, House privilege had been asserted at the
time when Mr. Vithalbhai Patel was President of the
Assembly. There was heated debate on the question as to in
whom did the control of the precinct of the House vest, the
Viceroy or the President of the Assembly. Mr. Patel to
assert the Privilege of the House asked the galleries to be
cleared. Privilege was not ordinarily exercised if the
report was faithful and accurate. But it was
819
necessary in order to ensure if the member could say things
without fear of being misreported. Otherwise his freedom of
speech was affected.
It was the power and privilege of the House of Commons to
decide what was a breach or not. The courts could go to the
extent to find whether a particular privilege existed.
[The Chief Justice: If the privilege claimed was excessive
would it not affect fundamental rights ?] It depended on the
wording of the notice. In the present case the motion and
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Committee’s notice had to be read together. It would not be
correct to give fundamental rights paramountcy over other
parts of the Constitution.
With reference to the allegations of mala fide’. What was
the’ mala fide’? Who could deny it except the secretary as
the ’mala fides’ charge was levelled against the Committee
of Privileges ?
[Sinha, J.-Including the Chief Minister].
" Mala Fides " was alleged against the Committee. [Sinha,
J.-The petition says that the committee is influenced by the
Chairman].
It is not so. I will confine myself to the petition which
says that the Committee of Privileges is proceeding against
the petitioner mala fide’ in order to muzzle him and
restrict him from expressing his views.
The Chief Minister was the Chairman of the Committee. There
was nothing to show nor was it claimed that the member of
the Committee were all his party men. There were members of
other parties. It was not alleged otherwise. It could not
also be said that the members of the Committee were all his
adherents. In the circumstances, what else could be done
except for the Secretary to deny the allegations of ’mala
fide’ which was levelled against the committee appointed by
the Speaker and the Chief Minister was Chairman from long
before the matter under consideration was taken up.
[The Chief Justice.-What about the time lag? No step was
taken for one whole year and the allegation
820
is that, when some articles were published, the matter was
taken up].
The action was taken after some time to enable the party to
correct itself.
Sinha, J.-The point raised was that the Committee did not do
anything for one year and then woke up one morning and then
pressed the matter].
How is the matter carried any further by these arguments.
Ultimately the House would judge and it was composed of 316
members. Where was the question of mala fide’? No one in
the House opposed the motion. Where was the malice of the
Committee, whether it issued the notice immediately or after
some time ?
[Sinha, J.-The argument of the petitioner’s Counsel was that
the House should have been presumed to have dropped the
matter as the House had not done anything at all for one
year and all of a sudden the matter was taken up. The point
made out was that but for the petitioner’s subsequent
action, no notice would have been issued by the Committee].
They had issued the notice stating that there was a breach
of privilege.
[Sinha, J.-Had not the Committee become ’functus officio’ by
lapse of time ?]
No. the Committee had the power to launch the prosecution.
It did not do it immediately. It waited for three or four
months.
[Sinha, J.-The very essence of these proceedings which are
of a summary character is that the matter should be
expeditiously dealt with].
Is it not a matter of internal management ? The House had
decided something and it was for the Committee to take some
action. The House did not rescind the decision.
With reference to the claim that rules had not been
followed: the standing Order 62 of the House of Commons did
not apply to the Privileges Committee which was a sessional
committee. Then there was rule 215 about the time limit.
What was it that the House had done? It appointed one of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 54
its committees to
821
inquire and submit its report within a period. The House
could say that it could extend the time and enlarge the
scope of time limit.
[The Chief Justice.-But as long as the rule stand.........].
The nature of the rule had to be gone into. It was
something fixed by the House for the guidance of the
Committee. The rules were made for the benefit of the
House. It was a matter for themselves, not for the benefit
of an outsider to seek to enforce it.
On the subject of malice, if something was lawful it did not
matter how much malice there was, the motive of malice could
not make unlawful what was otherwise lawful.
Malice imputed was that the Chief Minister was the Chairman
of the Committee. He might not be there. The Speaker might
appoint some one else. How can then one presume that the
committee would act maliciously ? There were responsible
persons holding, responsible positions.
H. N. Sanyal, Additional Solicitor-General of India, for
the Attorney-General for India, cited the powers of the
legislature of Nova Scotia and the position there, summed up
the law relating to powers and privileges’ Basdeva Prasad,
in reply. The main fact to be borne in mind is that the
Parliament or the Legislature in India was not really as
sovereign as the’ British Parliament which was supreme in
all matters.
Article 194(1) is not a repetition of Art. 19(1)(a), but are
abridgement of the freedom of expression and, speech which
would have otherwise been available to’ the members of the
legislature as ordinary citizens.
Article 194(3) itself does not provide a constitutional
exemption to the freedom guaranteed under Art. 19(1)(a) and
Art. 194(3) is subject to the provisions of the Constitution
in Part III and the other Art. 21.
Article 194(3) does not import into the Indian Constitution
the powers, privileges and immunities in their entirety, as
for instance the right to prohibit publication altogether
could not be imported.
822
It had already been made clear that Art. 194(1) was subject
to the provisions of the Constitution. The point was that
Art. 194(3) in its entirety was subject to the Constitution.
Article 32 itself was very significant as to what rights and
powers of Part III were ]lore important. Writs could be
issued for breach of fundamental rights or other violation
of rights, including powers of taxation.
Therefore, Art. 194 did not enlarge but it abridged the
scope of application of Art. 19(1)(a), since it was also
made subject to the rules and standing orders that might be
made by the House.
[The Chief Justice.-Whether Parliament could not under the
residuary powers of legislation, make a law imposing
restrictions on the freedom of speech of members of the
State Legislature. It was pointed that Art. 19(1) was a
primary right; Art. 19(2) cut it to some extent; Art. 194(1)
also made it subject to the provisions of the Constitution
but the freedom of speech was further restricted. The
Constitution itself appeared to provide those limitations.
Would not then Art. 194(1) read with Art. 19(1) equally lead
to an anomaly?]
Article 194(2) flowed from Art. 194(1). If Art. 194
imported powers, privileges and immunities wholesale from
the House of Commons of Great Britain, how could they be
exercised ? There was Art. 208. Any other form of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 54
restriction arising from the exercise of those powers would
be unreasonable restriction.
What Art. 194 gave powers, privileges and immunities.
Article 208 gave the power to punish, subject to the
provisions of the Constitution. It could not be said that
the British House of Commons had the power to punish a man
twice. A man could not be held guilty of privilege by an
ordinary court of law and at the same time by the House of
Commons. But here Art. 208 and Art. 194 came to be subject
to Art. 21 in that no one could be deprived of personal
liberty with. out a procedure of law.
[The Chief Justice.-But then you have not come to the stage
of Art. 21 at all. Your liberty has not been taken away].
823
My liberty is threatened. The notice says there is prima
facie case. Then there is the allegation of mala fide and
bias. I refer to the claim of the House to be the Bole
Judge of its privileges. I say that the, must be subject at
least to constitutional rights.
[The Chief Justice.-If Art. 194(3) incorporated all the
privileges, then could not that privilege itself be taken as
procedure established by law ?]
Article 21 never contemplated that there would be no
procedure. Supposing none of them was followed and a
warrant was issued, could not that be questioned in a court
of law ?
[The Chief Justice.-If the man is arrested then we shall
consider].
It would then be subject to the jurisdiction of their
Lordships. Article 21 guaranteed that there would be no
interference with the personal liberty of the citizen except
according to a procedure enacted by law. There must be a
substantive law. and such law must be valid.
If your Lordships hold with me that fundamental rights were
superior, then Art. 194 would have to be read with Art.
19(1) and the American position would help. If the House
was the sole Judge then neither Art. 21 nor Art. 22 would be
available.
[The Chief Justice.-If one could publish anything that was
said in the House there would be no meaning in expunging.
Being expunged,, meant it was not said].
Yes, but will not the House take notice? It is the right of
the people to know what had been said and what was expunged.
Expunction would be for the purposes of official record.
Even in Hansard, the expunged portion is not removed but
only red lines put over it.
[Sinha, J.-The argument advanced was that under the language
of Art. 194(2) you could not publish anything at all].
Yet, if the claim of total prohibition was accepted, then I
would be on velvet. But would that position be allowed in
India ? The House of Commons debated
824
on the Public, and I have a right to publish what takes
place.
[Sinha, J.-You claim a total right to publish].
Yes, total right to publish whatever takes place in the
House. I will not claim I have a right to publish garbled
and unfaithful report, I have a right to publish a faithful
report of what was said or done. The argument of the
learned Solicitor-General was that Art. 194(3) was not
subject to the provisions of the Constitution. In the
Constitution, the power was given to the President to make
all laws and regulations in Part D States and the provision
did not say subject to fundamental rights Could the
President make laws that would have the effect of taking
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 54
away fundamental rights or that it was said that citizens in
Part D states aid not have any fundamental rights? All the
provisions of the Constitution had to be read in relation to
the chapter on fundamental rights.
In the absence of law, the power to make rules could come in
conflict with fundamental rights. Law could mean a power or
authority.
[Subba Rao, J.- Under Art. 194(3), the legislature of a
State had all the powers, privileges and immunities of the
House of Commons. One of such powers was to prevent
publication of a garbled version. If in exercise of that
power, the legislature made an order asking someone to
appear at its bar, would that order come within the meaning
of law ?]
" Law included order, regulation or notification." [The
Chief Justice.-What is the meaning of an order ? Does it
mean an executive order ?]
It is an executive order. Order flowing from public
authority. The definition of the State included Government,
Parliament, Legislature and local authority. It would be an
order passed by authority. Article 21 would cover acts
under the enacted law. Here, a Committee of the House was
proceeding to take action to deprive the petitioner of his
personal liberty. What was the remedy? What could be the
procedure?
[The Chief Justice.-It would be argued that the Constitution
itself was law. It Deed not be enacted by
825
the Legislature. If Art. 194 imported all the privileges of
the House of Commons, then no question arose at all. That
itself prescribed the powers and privileges].
[Subba Rao, J.-If in exercise of such a power an order was
made by the legislature, would it not be law within the
meaning of its definition in the Constitution ?]
Executive order will be included in the expression law ".
[Subba Rao, J.-If an order, which would be law as thus
defined, be made, would it be valid if it infringed the
fundamental rights ?]
[The Chief Justice.-The State could make a law relating to
contempt of Court. Supposing the State did not make such a
law, the Court could still haul up people for contempt. Was
not there inherent power ?] The High Courts had the power to
punish. But the question of punitive punishment would
arise.
[The Chief Justice.-Fundamental rights were fundamental in
the sense that human rights which were valuable were
fundamental. The other provisions of the Constitution could
be equally efficacious].
My point was that any law or action had to be within the
constitutional rights guaranteed by the Constitution. Even
the right to punish would have to be within the ambit of the
fundamental rights chapter. If anyone was committed for
contempt of court which was not fully established, could he
not seek redress ? Justice ’Was not a cloistered virtue.
Could be not then claim a remedy under the ordinary law ?
[Subba Rao, J.-A law made by the Legislature in respect of
privileges would be subject to fundamental rights. If the
law was not made, the privileges were not subject to
fundamental rights].
[Sinha, J.-This will be a good reason for the Legislature
not to make law at all].
Article 194(3) bad to be interpreted as coming within the
scope of fundamental rights. The first part was admittedly
so. The second part was equally subject to the fundamental
rights by the very necessary implication.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 54
104
826
Privileges did come within judicial review. They could go
into the nature of privilege and on the given facts decide
their constitutional validity.
Cur. Adv. Vult.
1958. December 12. The Judgment of Das, C. J., Bhagwati,
Sinha and Wanchoo, JJ., was delivered by Das, C. J. Subba
Rao, J., delivered a separate Judgment.
DAS, C. J.-The petitioner before us, who is a citizen of
India, is by profession a journalist and has at all material
times been and is still working as the editor of the
Searchlight., one of the well-known English daily newspapers
having a large circulation in Patna and other places in the
State of Bihar. The first respondent has at all material
times been and is the Chief Minister of the State of Bihar
and the Chairman of the Committee of Privileges of the Bihar
Legislative Assembly. The Committee of Privileges has been
impleaded as the second respondent as if it is a legal
entity entitled to sue or to be sued in its name. The third
respondent is called and described as the Secretary to the
Bihar Legislative Assembly as if it also is a legal entity
but the incumbent of that office has not been named in the
cause title. As no objection has been taken to the way the
second and the third respondents have been impleaded as
parties nothing further need be said about the propriety of
such procedure.
This petition under Art. 32 of the Constitution raises
several important questions of far reaching effect. It came
to be filed in the following circumstances: In his speech
made in the Bihar Legislative Assembly on May 30, 1957, in
course of the general discussion on the Budget for the year
1957-58 Shri Maheshwar Prasad Narayan Sinha, a Congress mem-
ber of that Assembly, delivered what has been described as "
one of the bitterest attacks against the way the Chief
Minister was conducting the administration of the State ".
The Chief Minister, who also belongs to the Congress party,
is the first respondent before us. Shri Maheshwar Prasad
Narayan Sinha
827
referred to the way the Chief Minister, according to him,
was being guided by the advice of a gentleman who was well
understood by all to be Shri Mahesh Prasad Sinha, who was an
ex-minister of Bihar and had been defeated at the last
general elections. The member referred, as common
knowledge, to the activities of Shri Mahesh Prasad Sinha in
the selection of Ministers and the formation of the Ministry
as also to the glaring instances of encouragement of
corruption by the Government by, amongst other things, the
transfer of a Muslim District Engineer from Darbhanga to
Muzaffarpur for exploiting that officer’s influence on the
Muslim voters of Muzaffarpur. Similar reference was made to
the case of a District and Sessions Judge who,
notwithstanding the recommendation for his discharge made by
the Chief Justice after a regular judicial enquiry had been
held by a High Court Judge, was ordered only to be
transferred to another place on the intervention of Shri
Mahesh Prasad Sinha. The member strongly criticised the
appointment of Shri Mahesh Prasad Sinha as the Chairman of
the Bihar State Khadi Board as having been made only to
enable him to stay in Patna where residential accommodation
at Bailey Road had been procured for him. The distribution
of portfolios amongst the ministers did not also escape
strictures from this member. There is no dispute-indeed it
is admitted in paragraph 6 of the present petition-that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 54
immediately after Shri Maheshwar Prasad Narayan Sinha
referred to the question of appointment of the Chairman of
the Khadi Board, a point of order was raised by another
member of the Assembly, Shri Satendra Narain Agarwal, and
the Speaker stated as follows:-
" Mahesh Babu ke Sambandh Me Jitni Baten Kahi Gain Uske Bare
Me Maine Kah Diya Ki Us Tarah Ki Bat Ko Proceeding Se Nikal
Diya Jayega Lekin State Khadi Board Ke Chairman Ke Bare Me
Jo Kuch Kahenge We Karyawahi Me Rahenge or Iske Bishai Me
Manniya Sadasya Ko Kahane Ka Hak Hai. " which translated
into English means roughly:-
" I have already ruled with reference to whatever has been
said about Mahesh Babu that such words
828
would be expunged from the proceedings but that whatever may
be said with reference to the Chairmanship of the State
Khadi Board will remain in the proceedings and the Hon’ble
member has the right to speak on that matter. "
In its issue of May 31,1957, the Searchlight published a
report of the speech of Shri Maheshwar Prasad Narayan Sinha
which is set out in paragraph 2 of the petition and also
reproduced in what has been called "annexure B " in annexure
III to the petition. It will suffice, for the purposes of
our decision of this petition, to set out the opening part
of the report which reads as follows:-
BITTEREST ATTACK ON CHIEF MINISTER
M. P. Sinha’s choice as Khadi Board chief condemned.
Maheswar Babu’s scathing criticism of Government.
(By our Assembly Reporter)
Patna, May 30.
One of the bitterest attacks against the way the Chief
Minister was conducting the administration of the State was
made in the Bihar Assembly today by Mr. Maheshwar Prasad
Narayan Singh, a Congress member who said that contrary to
all principles of good Government, the Chief Minister was
guided by the advice of a gentleman who had been defeated at
the election and stood condemned before the bar of public
opinion. He also named the gentleman by whose advice the
Chief Minister was allegedly running the administration.
In this sixty-minute speech which was punctuated with
frequent applause by Congress as well as Opposition benches,
Mr. M. P. N. Singa said that corruption
829
could not be eradicated from Government unless the Chief
Minister refused to be influenced by such undesirable
elements.
He said it was common knowledge that (luring the period of
the formation of the new ministry which took unduly long
time many aspirants for Ministership and Deputy Ministership
went to a defeated Minister for pleading their case so that
the defeated Minister concerned could influence the Chief
Minister."
It has not been denied by the learned advocate for the
petitioner that the references to the gentleman who had been
defeated at the election and was said to have stood
condemned and by whose advice the Chief Minister (respondent
1) was alleged to be guided, were intended to be and were
understood by the public to be references to Shri Mahesh
Prasad Sinha, all reference to whom had, as herein before
mentioned, been directed by the Speaker to be expunged from
the proceedings.
On June 10, 1957, one Shri Nawal Kishore Sinha, a member of
the Bihar Legislative Assembly, gave notice to the
Secretary, Bihar Legislative Assembly (respondent 3) that he
wanted to raise a question of the breach of privilege of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 54
House. That notice was in the following terms
"To
The Secretary,
Bihar Legislative Assembly,
Patna.
The 10th June, 1957.
Sir,
I give notice that I want to raise the following
question involving a breach of privilege of the House, after
question hour today.
" That the Hon’ble Speaker ordered that all references
regarding Shri Mahesh Prasad Sinha, Ex-Industry Minister,
made in the speech of Shri Maheshwar Prasad Narain Sinha on
the 30th May, 1957, except that of his appointment as the
Chairman of the Khadi
830
Board, be expunged but in spite of this the " Searchlight ",
a local daily, published the entire speech of Shri Maheshwar
Prasad Narayan Sinha, containing all references to Shri
Mahesh Prasad Sinha which were ordered to be expunged.
Hence there has been a breach of the privilege of the House.
A copy of the " Searchlight ", dated the 31st of May, is
filed herewith.
Yours faithfully,
Nawal Kishore Sinha, M.L.A."
An account of the proceedings that took place in the House
on June 10, 1957, appears from " annexure D " in annexure
III to the petition. It will appear from that account that
after Shri Nawal Kishore Sinha had asked for leave to move
his motion, the Speaker read out to the members the relevant
rule as to the procedure that has to be followed when, on
such leave being asked for, an objection is or is not taken.
Thereafter, as no objection was raised in accordance with
that rule, the Speaker declared that the mover had received
the permission of the House to move his motion. One Shri
Karpuri Thakur having remarked that he could express no view
without knowing what had been printed and what had been
directed not to be printed, the Speaker read out the text of
the notice sent in by Shri Nawal Kishore Sinha set out above
which referred to the issue of the Searchlight in question.
As Shri Karpuri Thakur was apparently satisfied by this, the
Speaker then requested Shri Nawal Kishore Sinha to move his
resolution. The account shows that Shri Nawal Kishore Sinha
then said "Sir, I beg to move: that the matter be referred
to the Privilege Committee of the House". No amendment
having been moved, the Speaker, according to the report of
the proceedings set forth in " annexure D " ’ put the
question to the louse and, nobody objecting to the same,
declared the resolution carried.
It appears that the Committee of Privileges (respondent 2)
did not take up the consideration of the matter promptly and
while the mattet was pending before the
831
Committee sharp exchanges of charges and counter charges
took place between the petitioner and the Chief Minister
(respondent 1) as are evidenced by the extracts from the
issues of the Searchlight of May 27, 28 and 31, 1958. There
appears to have been a debate on June 5, 1958, for two hours
in the Bihar Legislative Assembly on the alleged failure of
the State Government to protect the petitioner from being
assaulted by goondas. It is said that these exchanges
roused the Committee of Privileges from slumber into
activity on August 10, 1958, when it passed a resolution
which, according to annexure II to the petition, ran as
follows --
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 54
"The question is that Shri M. S. M. Sharma, Editor and Shri
Awadhesh Kumar Tiwari, Printer and Publisher of the "
Searchlight " be called upon to show cause why appropriate
action be not taken against them by reason of the commission
of a breach of privilege in respect of the Speaker of the
Bihar Legislative Assembly and the Assembly itself by
publishing a perverted and unfaithful report of the
proceedings of the Assembly relating to the speech of Shri
Maheswar Prasad Narain Sinha, M.L.A., expunged portions of
whose speech were also published in derogation to the orders
of the Speaker passed in the House on the 30th May, 1957,
and that they be further directed to be in attendance at the
meeting or meetings of the Committee on such date or dates
as may be fixed by the Committee for consideration of the
case against them."
On August 18, 1958, the petitioner was served with a notice
dated August 14,1958, issued by respondent 3, the Secretary
to the Bihar Legislative Assembly, calling upon the
petitioner to show cause, on or before September 8, 1958,
why appropriate action should not be recommended against him
for breach of privilege of the Speaker and the Assembly in
respect of the offending publication. It is necessary, in
view of one of the points taken by the learned advocate for
the petitioner, to set out the full text of this notice
which was thus worded:-
832
"Government of Bihar,
Legislative Assembly Secretariat.
Confidential No. 3538-1A.
From
Shri Enayetur Rahman, B.A., B.L.,
Secretary to the Legislative Assembly.
To
Shri M. S. M. Sharma,
Editor, " The Searchlight
Searchlight Press, Patna.
Patna, August 13/14, 1958.
Whereas a question involving breach of privilege of the
Bihar Legislative Assembly arising out of the publication of
a news item in the Searchlight, dated the 31st May, 1957,
under the caption " Bitterest attack on Chief Minister", was
raised in the Assembly by Shri Nawal Kishore Sinha, M. L. A.
(Patna) on the 10th June, 1957, and whereas the same, having
been referred to the Committee of Privileges for
examination, investigation and report, was considered by the
Committee which has been pleased to find a prima facie case
of breach of privilege made out against you.
You are hereby directed to show cause, if any, on or before
the 8th September, 1958, why appropriate action should not
be recommended against you for breach of privilege of the
Speaker and the Assembly. Please also take notice that the
question will come up for examination by the Committee on
the 8th September, 1958, at 11 am. in the Official Sitting
Room (Ground Floor) of the Assembly Buildings, Patna, and
thereafter on such day or days and at such time and
833
place as the Committee may from time to time appoint. You
are also informed that if the matter comes to evidence, you
can, if you so choose, adduce evidence, both oral and
documentary, relevant to the issue, and you must come
prepared with the same on the date fixed in this behalf.
Sd. Enayetur Rehman,
Secretary to the Legislative Assembly."
Finding that things had begun to move and apprehending an
adverse outcome of the enquiry to be held by the Committee
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 54
of Privileges (respondent 2), the petitioner moved the High
Court at Patna under Art. 226 for an appropriate writ;,
order or direction restraining and prohibiting the
respondents from proceeding further with the enquiry
referred to above. It appears that on August 29, 1958, the
Art. 226 petition came up for preliminary hearing and after
it had been urged for a day and a half before the High Court
for admission, the petitioner on September 1, 1958, withdrew
that petition allegedly " with a view to avail the
fundamental rights granted to him under Art. 32 of the
Constitution."
The present petition under Art. 32 of the Constitution was
filed on September 5, 1958. The petitioner contends that
the said notice and the proposed action by the Committee of
Privileges (respondent 2) are in violation of the
petitioner’s fundamental rights to freedom of speech and
expression under Art. 19(1)(a) and to the protection of his
personal liberty under Art. 21 and the petitioner claims by
this petition to enforce those fundamental rights.
An affidavit in opposition affirmed by Shri Enayatur Rahman,
the present incumbent of the office of respondent 3, has
been filed on behalf of the respondents wherein it is
maintained that the report contained in the offending
publication was not in accordance with the authorised report
of the proceedings in the House in that it contained even
those remarks which, having been, by order of the Speaker,
directed to be expunged, did not form part of the
proceedings.
105
834
It is claimed that generally speaking proceedings in the
House are not in the ordinary course of business meant to be
published at all and that under no circumstances is it
permissible to publish the parts of speeches which had been
directed to be expunged and consequently were not contained
in the official report. Such Publication is said to be a
clear breach of the privilege of the Legislative Assembly,
which is entitled to protect itself by calling the offender
to book and, if necessary, by meting out suitable punishment
to him. This claim is sought to be founded on the pro-
visions of cl. (3) of Art. 194 which confers on it all the
powers, privileges and immunities enjoyed by the House of
Commons of the British Parliament at the commencement of our
Constitution.
Learned advocate for the petitioner relies upon Art.
19(1)(A) and contends that the petitioner, as a citizen of
India, has the right to freedom of speech and expression and
that, as an editor of a newspaper, he is entitled to all the
benefits of freedom of the Press. It is, therefore,
necessary to examine the ambit and scope of liberty of the
Press generally and under our Constitution in particular.
In England freedom of speech and liberty of the Press have
been secured after a very bitter struggle between the public
and the Crown. A short but lucid account of that struggle
will be found narrated in the Constitutional History of
England by Sir Thomas Erskine May (Lord Farnborough), Vol.
11, ch. IX under the heading " Liberty of Opinion ". In the
beginning the Church is said to have persecuted the freedom
of thought in religion and then the State suppressed it in
politics. Matters assumed importance when the art of
printing came to be developed. The Press was subjected to a
rigorous censorship. Nothing could be published without the
imprimatur of the licenser and the publication of unlicensed
works was visited with severe punishments. "Political
discussion was silenced by the licenser, the Star Chamber,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 54
the dungeon, the pillory, mutilation and branding." Even in
the reign of Queen Elizabeth printing was interdicted save
in London, Oxford and Cambridge. " Nothing marked more
deeply the tyrannical spirit
835
of the first two Stuarts than their barbarous persecutions
of authors, printers and the importers of prohibited books:
nothing illustrated more signally the love of freedom than
the heroic courage and constancy with which those
persecutions were borne " (1). There was no mention of
freedom of speech or of liberty of the Press in the Petition
of Rights of 1628. The fall of the Star Chamber augured
well for the liberty of the Press, but the respite was short
lived, for the Restoration brought renewed trials upon the
Press. The Licensing Act (13 & 14 Chs. 11 c. 33) placed the
entire control of the Press in the Government. Liberty of
the Press was interdicted and even news could not be
published without licence. Then came the Revolution of
1688; but even in the Bill of Rights of 1688 there was no
mention of freedom of speech or of liberty of the Press. In
1695, however, the Commons refused to renew the Licensing
Act and the lapse of that Act marked the triumph of the
Press, for thenceforth the theory of free Press was
recognised and every writing could be freely published,
although at the peril of the rigorous application of the law
of libel. William Blackstone in his 4th Book of
Commentaries published in 1769 wrote at p. 145:-
" The liberty of the Press is indeed essential to the nature
of a free State; but this consists in laying no previous
restraints upon publication, and not in freedom from censure
for criminal matter when published. Every free man has an
undoubted right to lay what sentiments he pleases before the
public; to forbid this, is to destroy the freedom of the
Press; but if he publishes what is improper, mischievous or
illegal, he must take the consequences of his own temerity."
Halam in his Constitutional History of England expresses the
same view by saying that liberty of the Press consists
merely in exemption from the licenser. To the same effect
are the observations of Lord Mansfield, C. J., in King v.
Dean of St. Asaph (2). The liberty of the Press, therefore,
primarily consists in
(1) May’s Constitutional History of England, Vol. ii PP.
240-41.
(2) (1784) 3 Tr. 428.
836
printing without any previous license subject to the
consequences of law. It is, in substance, a mere
application of the general principle of the rule of law,
namely, that no man is punishable except for a distinct
breach of the law (1). It was thus, as a result of a
strenuous struggle, that the British people have at long
last secured for themselves the greatest of their liberties-
the liberty of opinion.
In the United States of America freedom of speech and
liberty of the Press have been separately and specifically
safeguarded in the Constitutions of most of the different
States. Portions of the Constitutions of the 48 federating
States, relevant for our purpose, have been collected in
Cooley’s Constitutional Limitations, Vol. 11, ch. 12, pp.
876-880. Fifteen States, only, namely, Alabama, Arizona,
Colorado, Idaho, Illinois, Indiana, Kansas, Missouri,
Montana, Nebraska, North Dakota, Oregon, South Dakota, Wash-
ington and Wyoming do not specifically refer to liberty of
the Press but content themselves by providing for freedom of
speech. The Constitutions of the rest of the federating
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 54
States separately and ’Specifically mention liberty of the
Press in addition to freedom of speech. The first Amendment
of the federal Constitution of the United States, which was
ratified in 1791, provides that " Congress shall make no
law........... abridging the freedom of speech or of the
Press ". The Fifth and the Fourteenth Amendments also
protect people from being deprived of life, liberty or
property without due process of law.
Prior the advent of our present Constitution, there was no
constitutional or statutory enunciation of the freedom of
speech of the subjects or the liberty of the Press. Even in
the famous Proclamation of Queen Victoria made in 1858 after
the British power was firmly established in India, there was
no reference to the freedom of speech or the liberty of the
Press, although it was announced that " none be in any wise
favoured, none molested or disquieted by reason of their
Religious Faith or Observances; but that all shall alike
enjoy the equal and impartial protection
(1) Dicey’s Law of the Constitution, 9th Edn., p. 247.
837
of the law;........... Indeed during the British period of
our history the Press as such had no higher or ’better
rights than the individual citizen. In Arnold v. King
Emperor (1) which was a case of an appeal by the editor of a
newspaper against his conviction for criminal libel under s.
499 of the Indian Penal Code, Lord Shaw of Dunfermline in
delivering the judgment of the Privy Council made the
following observations at p. 169:-
" Their Lordships regret to find that there appeared on the
one side in this case the time-worn fallacy that some kind
of privilege attaches to the profession of the Press as
distinguished from the members of the public. The freedom
of the journalist is an ordinary part of the freedom of the
subject, and to whatever lengths the subject in general may
go, so also may the journalist, but, apart from statute law,
his privilege is no other and no higher. The
responsibilities which attach to his power in the
dissemination of printed matter may, and in the case of a
conscientious journalist do, make him more careful; but the
range of his assertions, his criticisms, or his comments, is
as wide as, and no wider than, that of any other subject, No
privilege attaches to his position."
Then came our Constitution on January 26, 1950. The
relevant portions of Art. 19, as it now stands and which is
relied on, are as follows:-
" 19 (1) All citizens shall have the right
(a) to freedom 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) (1914) L.R. 41 I.A. 149.
838
It will be noticed that this Article guarantees to all
citizens freedom of speech and expression but does not
specifically or separately provide for liberty of the Press.
It has, however, been held that the liberty of the Press is
implicit in the freedom of speech and expression which is
conferred on a citizen. Thus, in Romesh Thappar v. State of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 54
Madras (1) this Court 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. In
Brijbhushan v. The State of Delhi (2) it has been laid down
by this Court that the imposition of pre-censorship on a
journal is a restriction on the liberty of the Press which
is an essential part of the right to freedom of speech and
expression declared by Art. 19(1)(a). To the like effect
are the observations of Bhagwati, J., who, in delivering the
unanimous judgment of this Court in Express Newspapers Ltd.
v. Union of India(1) said at page 118 that freedom of speech
and expression includes within its scope the freedom of the
Press. Two things should be noticed. A non-citizen running
a newspaper is not entitled to the fundamental right to
freedom of speech and expression and, therefore, cannot
claim, as his fundamental right, the benefit of the liberty
of the Press. Further, being only a right flowing from the
freedom of speech and expression, the liberty of the Press
in India stands on no higher footing than the freedom of
speech and expression of a citizen and that no privilege
attaches to the Press as such, that is to say, as distinct
from the freedom of the citizen. In short, as regards
citizens running a newspaper the position under our
Constitution is the same as it was when the Judicial
Committee decided the case of Arnold v. The King Emperor (4)
and as regards non-citizens the position may even be worse.
The petitioner claims that as a citizen and an editor of a
newspaper he has the absolute right, subject, of course, to
any law that may be protected by el. (2) of Art. 19, to
publish a true and faithful report of the publicly heard and
seen proceedings of Parliament or
(1) [1950] S.C.R. 594.
(3) [1959] S.C.R. 12.
(2) [1950] S.C.R. 605.
(4) (1914) S.C.R. 41 I.A. 149.
839
any State Legislature including portions of speeches
directed to be expunged along with a note that that portion
had been directed to be so expunged. The respondents before
us do not contend that the petitioner’s freedom of speech
and expression is confined only to the publication of his
own sentiments, feelings, opinions, ideas and views but does
not extend to the publication of news or of reports of
proceedings or of views of others or that such last
mentioned publications are not covered by the interpretation
put upon the provisions of Art. 19(1)(a) by this Court in
the three decisions referred to above or that the case of
Srinivasa v. The State, of Madras (1), which apparently
supports the petitioner, was wrongly decided. For the
purposes of this case, therefore, we are relieved of the
necessity for examining the larger questions and have to
proceed on the footing that the freedom of speech and
expression conferred on citizens includes the right to
publish news and reports of proceedings in public meetings
or in Parliament or State Legislatures. The respondents,
however, deny that the petitioner has the absolute right
broadly formulated as here in before mentioned. They urge,
inter alia, that under Art. 194(3) Parliament and the State
Legislatures have the powers, privileges and immunities
enjoyed by the House of Commons of British Parliament and
those powers, privileges and immunities prevail over the
freedom of speech and expression conferred on citizens under
Art. 19(1)(a).
Besides a few minor miscellaneous points raised by the
learned advocate for the petitioner, which will be dealt
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 54
with in due course, two principal points arising on the
pleadings have been canvassed before us and they are
formulated thus:-
I. Has the House of the Legislature in India the privilege
under Art. 194(3) of the Constitution to prohibit entirely
the publication of the publicly seen and heard proceedings
that took place in the House or even to prohibit the
publication of that part of the proceedings which had been
directed to be expunged ?
II. Does the privilege of the House under Art.
(1) A.I.R. (1951) Mad. 70.
840
194(3) prevail over the fundamental right of the petitioner
under Art. 19(1)(a) ?
Re I: Article 194, on which depends our decision not only on
this point but also on the next one, may now be set out:-
"194. (1) Subject to the provisions of this Constitution
and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of
speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable
to any proceedings in any court in respect of anything said
or any vote given by him in the Legislature or any committee
thereof, and no person shall be so liable in respect of the
publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and
immunities of a House of the Legislature of a State, and of
the members and the committees of a House of such
Legislature, shall be such as may from time to time be
defined by the Legislature by law, and, until so defined,
shall be those of the House of Commons of the Parliament of
the United Kingdom, and of its members and committees, at
the commencement of this Constitution.
(4) The provisions of clauses (1), (2) and (3) shall apply
in relation to persons who by virtue of this Constitution
have the right to speak in, and otherwise to take part in
the proceedings of, a House of the Legislature of a State or
any committee thereof as they apply in relation to members
of that Legislature." This Article, which applies to the
State Legislatures and the members and committees thereof,
is a reproduction, mutatis mutandis, of Art. 105 which
applies to both Houses of Parliament and the members and
committees thereof. It is common ground that the.
Legislature of the State of Bihar has not made any law with
respect to the powers, privileges and immunities of the
House of the Legislature as enumerated in entry 39 of List
II of the Seventh Schedule to the Constitution just as
Parliament has made no law with respect to the matters
enumerated in entry 74 of List
841
I of that Schedule. Therefore under the latter part of cl.
(3) of Art. 194 the Legislative Assembly of Bihar has all
the powers, privileges and immunities enjoyed by the House
of Commons at the commencement of our Constitution. What,
then, were the powers, privileges and immunities of the
House of Commons which are relevant for the purposes of the
present petition ?
Parliamentary privilege is defined as " the sum of the
peculiar rights enjoyed by each House collectively as a
constituent part of the High Court of Parliament, and by
members of each House individually, without which they could
not discharge their functions, and which exceed those
possessed by other bodies or individuals " (1). According
to the same author " privilege, though part of the law of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 54
the land, is to a certain extent an exemption from the
ordinary law ". The privileges of Parliament are of two
kinds, namely, (i) those which are common to both Houses and
(ii) those which are peculiar either to the House of Lords
or to the House of Commons (2 ). The privileges of the
Commons, as distinct from the Lords, have been defined as "
the sum of the fundamental rights of the House and of its
individual members as against the prerogatives of the
Crown, the authority of the ordinary courts of law and
the special rights of the House of Lords (3). Learned
Solicitor General appearing for the respondents claims that
the Legislative Assembly, like the House of Commons, has the
power and privilege, if it so desires, to prohibit totally
the publication of any debate or proceedings that may take
place in the House and at any rate to prohibit the
publication of inaccurate or garbled versions of it. In
other words, it is claimed that the House of Commons has the
power and privilege to prohibit the publication in any
newspaper of even a true and faithful report of its
proceedings and certainly the publication of any
(1) Sir Thomas Erskine May’s Parliamentary Practice, 16th
Edn., Ch. III, P. 42.
(2) Halsbury’s Laws of England, 2nd Edn., Vol. 24, Art.
698, P. 346.
(3) Redlich and Ilbert on Procedure of the House of
Commons,
Vol. 1, P. 46.
106
842
portion of speeches or proceedings directed to be expunged
from the official record.
As pointed out in May’s Parliamentary Practice, 16th Edn.,
p. 151, in the early days of British History the maintenance
of its privileges was of vital importance to the House of
Commons. They were necessary to preserve its independence
of the King and the Lords and, indeed, to its very
existence. The privileges of the House of Commons have been
grouped under two heads, namely, (1) those demanded of the
Crown by the Speaker of the House of Commons at the
commencement of each Parliament and granted as a matter of
course and (2) those not so demanded by the Speaker. Under
the first heading come (a) freedom from arrest (claimed in
1554), (b) freedom of speech (claimed in 1541), (c) the
right of access to the Crown (claimed in 1536) and (d) the
right of having the most favourable construction placed upon
its proceedings. The second head comprises (i) the right to
the due composition of its own body, (ii) regulate its own
proceedings, (iii) the right strangers, (iv) the right to
prohibit publication of its debates and (v) the right to
enforce observation of its privileges by fine, imprisonment
and expulsion (1). Admonition and reprimand are milder
forms of punishment. The privileges of the House of Commons
under the first head are claimed at the commencement of
every Parliament by the Speaker addressing the Lord
Chancellor on behalf of the Commons. They are claimed as "
ancient and undoubted " and are, through the Chancellor "
most readily granted and confirmed by the Crown (2). Of the
three things thus claimed, two, namely, the freedom of the
person and the freedom of speech and certain consequential
rights like the right to exclude strangers from the House
and the control or prohibition of publication of the debates
and proceedings are common to both Houses (3).
(1) Ridge’s Constitutional Law, 8th Edn., p. 61; also
Halsbury’s
Laws of England, 2nd Edn., Vol. 24, P. 351.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 54
(2) Anson’s Law and Custom of the Constitution, Vol. 1, Ch.
4,p. 162.
(3) Halsbury’s Laws of England, 2nd Edn., Vol. 24, p. 346.
843
For a deliberative body like the House of Lords or the House
Commons, freedom of speech is of the utmost importance. A
full and free debate is of the essence of Parliamentary
democracy. Although freedom of speech was claimed and
granted at the commencement of every Parliament, it was
hardly any protection against the autocratic Kings, for the
substance of the debates could be and was frequently
reported to the King and his ministers which exposed the
members to the royal wrath. Secrecy of Parliamentary
debates was, therefore, considered necessary not only for
the due discharge of the responsibilities of the members but
also for their personal safety. " The original motive for
secrecy of debate was the anxiety of the members to protect
themselves against the action of the. sovereign, but it was
soon found equally convenient as a veil to hide their
proceedings from their constituencies " (1). This object
could be achieved in two ways, namely, (a) by prohibiting
the publication of any report of the debates and proceedings
and (b) by excluding strangers from the House and holding
debates within closed doors. These two powers or privileges
have been adopted to ensure the secrecy of debates to give
full play to the members’ freedom of speech and therefore,
really flow, as necessary corollaries, from that freedom of
speech which is expressly claimed and granted at the
commencement of every Parliament.
As to (a): " The history of Parliamentary privilege is to a
great extent a story of the fierce and prolonged struggle of
the Commons to win the rights and freedoms which they enjoy
to-day " (2). The right to control and, if necessary, to
prohibit the publication of the debates and proceedings has
been claimed, asserted and exercised by both Houses of
Parliament from very old days. In 1628 and again in 1640
the clerk was forbidden to make notes of " particular men’s
speeches " or to " suffer copies to go forth of
(1) Taswell-Langmead’s Constitutional History, 10th Edn.,
p. 657.
(2) Encyclopaedia of Parliament by Norman Widling and
Laundy,p. 451.
844
any arguments or speech whatsoever The House of Commons of
the Long Parliament in 1641 framed a 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 this House ". In that critical
period it was a necessary precaution. So strict was the
House about this privilege that for printing a collection of
his own speeches without such leave, Sir E. Derring was
expelled from the House and imprisoned in the Tower and his
book was ordered to be burnt by the common hangman. This
standing order has not up to this date been abrogated or
repealed. In 1680 to prevent inaccurate accounts of the
business done, the Commons directed their " votes and
proceedings, without any reference to the debates, to be
printed under the direction of the Speaker. After the
Revolution of 1688 frequent resolutions were passed by both
Houses of Parliament from 1694 to 1698 to restrain
newsletter writers from " intermeddling with their debates
or other proceedings " or " giving any account of minute of
the debates ". But such was the craving of the people for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 54
political news that notwithstanding these resolutions and
the punishment of offenders imperfect reports went on being
published in newspapers or journals. Amongst the papers
were Boyer’s " Political State of Great Britain ", " London
Magazine ", and " Gentleman’s Magazine " in which reports of
debates were published under such titles as " Proceedings of
a Political Club " and " Debates in the Senate of Magna
Lilliputia ". In 1722 the House of Commons passed the
following resolutions:
" Resolved, That no News Writers do presume in their
Letters, or other Papers, that they disperse as Minutes, or
under any other Denomination, to intermeddle with the
Debates, or any other Proceedings, of this House.
Resolved, That no Printer or Publisher of any printed News
Papers, do presume to insert in any such
(1) Hatsell 265 quoted in May’s Parliamentary Practice,
16th Edn.,p. 55.
845
Papers any Debates, or any other Proceedings of this House,
or any Committee thereof" (1).
In 1738 the publication of its proceedings was characterised
in another resolution of the House of Commons as " a high
indignity and a notorious breach of privilege The
publication of debates in the " Middlesex Journal" brought
down the wrath of the House of Commons on the printers who
were ordered to attend the House. The printers not having
been found warrants were issued for their arrest and one
printer was arrested and brought before Alderman John Wilkes
who immediately discharged him on the ground that no crime
had been committed. Another printer was arrested and
brought before another Alderman who, likewise, discharged
the prisoner inasmuch as he was not accused of having
committed any crime. By way of reprisal the House of
Commons imprisoned the Lord Mayor and an Alderman, both of
whom were the members of the House. Both men, on their
release, were honoured in a triumphal procession from the
Tower of London to the Mansion House. After this political
controversy, debates in both Houses continued to be reported
with impunity, although technically such reporting was a
breach of privilege. Accurate reporting was, however,
hampered by many difficulties, for the reporters had no
accommodation in the House and were frequently obliged to
wait for long periods in the halls or on the stairways and
were not permitted to take notes. The result was that the
reports published in the papers were full of mistakes and
misrepresentations. After the House of Commons was
destroyed by fire in 1834, galleries in temporary quarters
were provided for the convenience of reporters, and in the
new House of Commons a separate gallery was provided for the
Press. In 1836 the Commons provided for the publication of
parliamentary papers and reports, which led to the conflict
between the House of Commons and the courts, which was
decided in Stockdale v. Hansard (2), where Lord Chief
Justice Denman held that
(1) 20 journals of the House of Commons, p. 99; quoted in
Frank Thayer’s Legal Control of the Press, pp. 28-29.
(2) Moody and Robson, 9. 174 Eng. Rep. 196; also see
(1839) 9 A. & E. Reports, Eng. Q.B. 1; 112 Eng. Rep. 1112.
846
the fact of the House of Commons having directed Messrs.
Hansard to publish all their parliamentary reports was no
justification for their or for any other bookseller
publishing a parliamentary report, containing a libel
against any man. Subsequently the House retaliated by
committing Stockdale and his attorney and - also the sheriff
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 54
to prison. The deadlock thus brought about was at length
removed by the passing of the Parliamentary Papers Act, 1840
(3 and 4 Vic. c. 9).
Learned advocate for the petitioner has drawn our attention
to the judgment of Cockburn, C. J., in the celebrated case
of Wason v. Walter (1). The plaintiff in that case had
presented a petition to the House of Lords charging a high
judicial officer with having, 30 years before, made a
statement false to his own know. ledge, in order to deceive
a committee of the House of Commons and praying enquiry and
the removal of the officer if the charge was found true. A
debate ensued on the presentation of the petition and the
charge was utterly refuted. Allegations disparaging to the
character of the plaintiff had been spoken in the course of
the debate. A faithful report of the debate was published
in the Times and the plaintiff proceeded against the
defendant, who was a proprietor of the Times, for libel. It
was held that the debate was a subject of great public
concern on which a writer in a public newspaper had full
right to comment, and the occasion was, therefore, so far
privileged that the comments would not be actionable so long
as a jury should think them honest and made in a fair
spirit, and such as were justified by the circumstances as
disclosed in an accurate report of the debate. Learned
advocate for the petitioner contends that this decision
establishes that the Press had the absolute privilege of
publishing a report of the proceedings that take place in
Parliament, just as it is entitled to publish a faithful and
correct report of the proceedings of the courts of justice,
though the character of individuals may incidentally suffer
and that the publication of such accurate reports is
privileged and entails neither criminal nor civil
responsibility. This argument overlooks
(1) (1868) L.R. IV Q.B. 73.
847
that the question raised and actually decided in that case,
as formulated by Cockburn, C. J., himself at p. 82, was
simply this:-
" The main question for our decision is, whether a faithful
report in a public newspaper of a debate in either House of
Parliament, containing matter disparaging to: the character
of an individual, as having been spoken in the course of the
debate, is actionable at the suit of the party whose
character has thus been called in question."
The issue was between the publisher and the person whose
character had been attacked. The question of the privilege,
as between the House and the newspaper, was not in issue at
all. In the next place, the observations relied upon as
bearing on the question of privilege of Parliament were not
at all necessary for deciding that case and, as Frank Thayer
points out at p. 32 of his Legal Control of the Press,
’,this part of the opinion is purely dictum ". In the third
place, the following observations of the learned Chief
Justice clearly indicate that, as between the House and the
Press, the privilege does exist:-
"It only remains to advert to an argument urged against the
legality of the publication of parliamentary proceedings,
namely, that such publication is illegal as being in
contravention of the standing orders of both houses of
parliament. The fact, no doubt, is, that each house of
parliament does, by its standing orders, prohibit the
publication of its debates. But, practically each house not
only permits, but also sanctions and encourages, the
publication of its proceedings, and actually gives every
facility to those who report them. Individual members
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 54
correct their speeches for publication in Hansard or the
public journals, and in every debate reports of former
speeches contained therein are constantly referred to.
Collectively, as well as individually, the members of both
houses would deplore as a national misfortune the withhold-
ing their debates from the country at large. Practically
speaking, therefore, it is idle to say that the publication
of parliamentary proceedings is prohibited by parliament.
The standing orders which prohibit
848
it are obviously maintained only to give to each house the
control over the publication of its proceedings, and the
power of preventing or correcting any abuse of the facility
afforded. Independently of the orders of the houses, there
is nothing unlawful in publishing reports of parliamentary
proceedings. -Practically, such publication is sanctioned by
parliament; it is essential to the working of our
parliamentary system, and to the welfare of the nation. Any
argument founded on its alleged illegality appears to us,
therefore, entirely to fail. Should either house of
parliament ever be so ill-advised as to prevent its pro-
ceedings from being made known to the country which
certainly never will be the case-any publication of its
debates made in contravention of its orders would be a
matter between, the house and the publisher. For the
present purpose, we must treat such publication as in every
respect lawful, and hold that, while honestly and faithfully
carried on, those who publish them will be free from legal
responsibility, though the character of individuals May
incidentally be injuriously affected."
With the facilities now accorded to the reporters, the
practice of reporting has improved, and the House, sensible
of the advantage which it derives from a full and clear
account of its debates, has even encouraged the publication
of reports of debates and proceedings that take place in the
House. From this it does not at all follow that the House
has given up this valuable privilege. The following passage
in Anson’s Law and Custom of the Constitution at p. 174 is
significant and correctly states the position :-
" We are accustomed, therefore, to be daily informed,
throughout the Parliamentary Session, of every detail of
events in the House of Commons; and so we are apt to forget
two things.
The first is, that these reports are made on sufferance, for
the House can at any moment exclude strangers and clear the
reporter’s gallery ; and that they are also published on
sufferance, for the House may at any time resolve that
publication is a breach of privilege and deal with it
accordingly.
849
The second is, that though the privileges of the House
confer a right to privacy of debate. they do not confer a
corresponding right to the publication of debate."
Frank Thayer at pp. 31-32 expresses the same view in the
following terms:-
" Parliamentary privilege as part of the unwritten English
Constitution is the exclusive right of either House to
decide what constitutes interference with its duties, its
dignity, and its independence. Its power to exclude
strangers so as to secure privacy of debate closely follows
the right of Parliament to prevent the publication of
debates. Attendance at Parliamentary debates and the
publication of debates are by sufferance only, although it
is now recognized that dissemination of information on
debates and Parliamentary proceedings is advantageous to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 54
English democracy and, in fact, necessary to public safety.
By judicial dictum it has been stated that there is a right
to publish fair and accurate reports of Parliamentary
debates, but actually the traditional privilege of
Parliament continues in conflict with judicial opinion.
There is still a standing order forbidding the publication
of Parliamentary debates, an order that by custom and the
right of sufferance has become practically obsolete; yet the
threat of such an order and the possibility of a contempt
citation for its abuse, should Parliament deem it
advantageous to withhold some particular discussion, serve
as a check upon careless reporting and distorted comment."
May in his Parliamentary Practice, 16th Edn., p. 118 puts
the matter thus:-
" Analogous to the publication of libels upon either House
is the publication of false or perverted, or of partial and
injurious reports of debates or proceedings of either House
or committees of either House or misrepresentations of the
speeches of particular members. But as the Commons have
repeatedly made orders forbidding the publications of the
debates or other proceedings of their House or any committee
thereof which, though not renewed in any subsequent
107
850
session, are considered to be still in force, it has been
ruled that an alleged misrepresentation is not in itself a
proper matter for the consideration of the House, the right
course being to call attention to the report as an
infringement of the orders of the House, and then to
complain of the misrepresentation as an aggravation of the
offence."
The fact that the House of Commons jealously guards this
particular privilege is amply borne out by the fact that as
late as May 31, 1875, when Lord Hartington sponsored a
motion in the House of Commons " that this House will not
entertain any complaint in respect of the publication of the
debates or proceedings of the House, or of any committee
thereof, except when such debates or any proceedings shall
have been conducted within closed doors or when such
publication shall have been expressly prohibited by the
House or any committee or in case of wilful misrepre-
sentation or other offence in relation to such publication "
the House of Commons rejected the same outright. The
conclusion deducible from this circumstance is thus
summarised in May’s Parliamentary Practice at p. 118:-
" 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."
Several instances are given in May’s Parliamentary Practice
at pp. 118-19 where proceedings have been taken for breach
of privilege including a case of the publication in 1801 of
a proceeding which the House of Lords had ordered to be
expunged from the journal. It is said that that was a case
of privilege of the House of Lords and not a case of
privilege of the House of Commons and it is pointed out that
there has been no instance of such a claim of privilege
having been made by the House of Commons for over a century.
In the first place, it should be remembered that this
privilege, as stated in Halsbury’s Laws of England, 2nd
Edn., Vol. 24, p. 351, is a common privilege claimed by both
Houses and, if the House of
851
Lords could assert and exercise it in 1801, there is no
reason to suppose that the House of Commons will not be able
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to do so if any occasion arises for its assertion or
exercise. If the House of Commons has not done so for a
long time it must rather be assumed that no occasion had
arisen for the assertion and exercise of this power than
that it had ceased to have the power at all (Cf. the
observations in Wason v. Walter) (1) and In re: Banwarilal
Roy (2)). Further the fact that the House of Commons in
1875 rejected Lord Hartington’s motion referred to above
also clearly indicates that the House of Commons is anxious
to preserve this particular privilege. It is interesting
also to note the new point that arose in the House of
Commons regarding the publication of certain proceedings in
August 1947. A Committee of Privileges found that one Mr.
Evelyn Walkden, member for Doncaster, had revealed the
proceedings of a private party meeting to a newspaper. The
Committee thought that the practice of holding party
meetings of a confidential character had become well-
established and must be taken as a normal and everyday
incident of parliamentary procedure. The Committee felt
that attendance at such meetings within the precincts of the
Palace of Westminster during the session was part of the
member’s normal duties and the publication by the handing
out of a report of the proceedings amounted to a breach of
the privilege of the House. It is true that the House only
resolved that Mr. Walkden was guilty of dishonourable
conduct, but did not expel him but it also passed a
resolution that in future any person offering payment for
the disclosure of such information would incur the House’s
grave displeasure (3). In this case the inquiry was with
regard to the conduct of a member for having committed a
breach of the privilege of the House by publishing the pro-
ceedings to an outsider. The point, however, to note is
that whatever doubts there might have been as to whether the
proceedings of the private party meetings could be equated
with the regular proceedings of
(1) (1868) L.R. IV Q.B. 73.
(2) 48 C.W. N. 766, 787.
(3) Ridge’s Constitutional Law, 8th Edn., P. 70 and May’s
Parliamentary Practice, 16th Edn., P. 52.
852
the House of Commons, there was, nevertheless, no question
or doubt about the existence of the power or privilege of
the House to forbid publication of the proceedings of the
House. This case also shows that the House of Commons had
not only not abandoned its power or privilege of prohibiting
the publication of its proceedings proper but also
considered the question of applying this power or privilege
to the publication by a member of the proceedings that took
place in a private party meeting held within the precincts
of the House.
As to (b): It has already been said that the freedom of
speech claimed by the House and granted by the Crown is,
when necessary, ensured by the secrecy of the debate which
in its turn is protected by prohibiting publication of the
debates and proceedings as well as by excluding strangers
from the House. Any member could in the old days " spy a
stranger " and the Speaker had to clear the House of all
strangers which would, of course, include the Press
reporters. This right was exercised in 1849 and after 20
years in 1870 and again in 1872 and 1874. In 1875, however,
this rule was modified by a resolution of the House only to
this extent, namely, that, on a member spying a stranger,
the Speaker would put the matter to the vote of the House
(1). This right was exercised in 1923 and again as late as
on November 18, 1958 (2). This also shows that there has
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been no diminution in the eagerness of the House of Commons
to protect itself by securing the secrecy of debate by
excluding strangers from the House when any occasion arises.
The object of excluding strangers is to prevent the
publication of the debates and proceedings in the House and,
if the House is tenaciously clinging to this power or
privilege of excluding strangers, it is not likely that it
has abandoned its power or privilege to prohibit the
publication of reports of debates or proceedings that take
place within its precincts.
The result of the foregoing discussion, therefore, is that
the House of Commons had at the commencement
(1) Taswell-Langmead, p. 660.
(2) The Statesman dated November 20, 1958.
853
of our Constitution the power or privilege of prohibiting
the publication of even a true and faithful report of the
debates or proceedings that take place within the House. A
fortiori the House had at the relevant time the power or
privilege of prohibiting the publication of an inaccurate or
garbled version of such debates or proceedings. The latter
part of Art. 194(3) confers all these powers, privileges and
immunities on the House of the Legislature of the States, as
Art. 105(3) does on the Houses of Parliament. It is said
that the conditions that prevailed in the dark days of
British history, which led to the Houses of Parliament to
claim their powers, privileges and immunities, do not now
prevail either in the United Kingdom or in our country and
that there is, therefore, no reason why we should adopt them
in these democratic days. Our Constitution clearly provides
that until Parliament or the State Legislature, as the case
may be, makes a law defining the powers, privileges and im-
munities of the House, its members and Committees, they
shall have all the powers, privileges and immunities of the
House of Commons as at the date of the commencement of our
Constitution and yet to deny them those powers, privileges
and immunities, after finding that the House of Commons had
them at the relevant time, will be not to interpret the
Constitution but to re-make it. Nor do we share the view
that it will not be right to entrust our Houses with these
powers, privileges and immunities,, for we are well
persuaded that our Houses, like the House of Commons, will
appreciate the benefit of publicity and will not exercise
the powers, privileges and immunities except in gross cases.
Re. II: Assuming that the petitioner, as a citizen and an
editor of a newspaper, has under Art. 19(1)(a) the
fundamental right to publish a true and faithful report of
the debates or proceedings that take place in the
Legislative Assembly of Bihar and granting that that
Assembly under Art. 194(3) has all the powers, privileges
and immunities of the House of Commons which include,
amongst others, the right to prohibit the publication of any
report of the debates or proceedings,
854
whose right is to prevail-? Learned advocate for the
petitioner contends that the powers, privileges and
immunities of the Legislative Assembly under Art. 194(3)
must give way to the fundamental right of the petitioner
under Art. 19(1)(a). In other words, Art. 194 (3),
according to him, is subject to Art. 19 (1) (a).
Learned advocate for the petitioner seeks to support his
client’s claim in a variety of ways which may now
be noted, seriatim :-
(i) that though cl. (3) of Art. 194 has not, in terms, been
made "subject to the provision of the Constitution ", it
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does not necessarily mean that it is not so subject, and
that the several clauses of Art. 194 or Art. 105 should not
be treated as distinct and separate provisions but should be
read as a whole and that, so read, all the clauses should be
taken as subject to the provisions of the Constitution,
which, of course, would include Art. 19(1)(a);
(ii) that Art. 194(1), like Art. 105(1), in reality operates
as an abridgement of the fundamental right Of freedom of
speech conferred by Art. 19(1)(a) when exercised in
Parliament or the State Legislatures respectively, but Art.
194(3) does not, in terms, purport to be an exception to
Art. 19(1)(a) ;
(iii) that Art. 19, which enunciates a transcendental
principle and confers on the citizens of India indefeasible
and fundamental rights of a permanent nature,, is enshrined
in Part III of our Constitution, which, in view of its
subject matter, is more important, enduring and sacrosanct
than the rest of the provisions of the Constitution, but
that the second part of Art. 194(3) is of the nature of a
transitory provision which, from its very nature, cannot
override the fundamental rights;
(iv) that if, in pursuance of the provisions of Art. 105(3),
Parliament makes a law under entry 74 in List I to the
Seventh Schedule defining the powers, privileges and
immunities of the House or Houses of Parliament and its
members and committees or if, in pursuance of the provisions
of Art. 194(3), the State Legislature makes a law under
entry 39 in List II to
855
the Seventh Schedule defining the powers, privileges and
immunities of the House or Houses of the Legislature of a
State and its members and committees and if, in either case,
the powers, privileges and immunities so defined and
conferred on the House or Houses are repugnant to the
fundamental rights of the citizens, such law will, under
Art. 13, to the extent of such repugnancy, be void and that
such being the intention of the Constitution makers in the
earlier part of Art. 194(3) and there being no apparent
indication of a different intention in the latter part of
the same clause, the powers, privileges and immunities of
the House of Commons conferred by the latter part of cl. (3)
must also be taken as subject to the fundamental rights;
(v) that the observations in Anand Bihari Mishra v. Ram
Sahay (1) and the decision of this Court in Gunupati
Keshavram Reddy v. Nafisul Hasan (2) clearly establish that
Art. 194(3) is subject to the fundamental rights.
The arguments, thus formulated, sound plausible and even
attractive, but do not bear close scrutiny, as will be
presently seen.
Article 194 has already been quoted in extenso. It is quite
clear that the subject matter of each of its four clauses is
different. Clause (1) confers on the members freedom of
speech in the Legislature, subject, of course, to certain
provisions therein referred to. Clause (2) gives immunity,
to the members or any person authorised by the House to
publish any report etc. from legal proceedings. Clause (3)
confers certain powers. Privileges and immunities on the
House of the Legislature of a State and on the members and
the committees thereof and finally el. (4) extends the pro-
visions of cls. (1) to (3) to persons who are not members of
the House, but who, by virtue of the Constitution, have the
right to speak and otherwise to take part in the proceedings
of the House or any committee thereof. In the second place,
the fact that cl. (1) has been expressly made subject to the
provisions of the Constitution but cls. (2) to (4) have not
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been stated to
(1) A.1.R. (1952) M.B. 31, 43.
(2) A.I.R. (1954) S.C. 636.
856
be so subject indicates that the Constitution makers did not
intend cls. (2) to (4) to be subject to the provisions of
the Constitution. If the Constitution makers wanted that
the provisions of all the clauses should be subject to the
provisions of the Constitution, then the Article would have
been drafted in a different way, namely, it would have
started with the words: " Subject to the provisions of this
Constitution and the rules and standing orders regulating
the procedure of the Legislature " and then the subject
matter of the four clauses would have been set out as sub-
cls. (i), (ii), (iii) and (iv) so as to indicate that the
overriding provisions of the opening words qualified each of
the subclauses. In the third place, in may well be argued
that the words " regulating the procedure of the Legislature
" occurring in cl. (1) of Art. 194 should be read as
governing both " the provisions of the Constitution " and "
the rules and standing orders ". So read freedom of speech
in the Legislature becomes subject to the provisions of the
Constitution regulating the procedure of the Legislature,
that is to say, subject to the Articles relating to
procedure in Part VI including Arts. 208 and 211, just as
freedom of speech in Parliament under Art. 105(1), on a
similar construction, will become subject to the Articles
relating to procedure in Part V including Arts. 118 and 121.
The argument that the whole of Art. 194 is subject to Art.
19(1)(a) overlooks the provisions of cl. (2) of Art. 194.
The right conferred on a citizen under Art. 19(1)(a) can be
restricted by law which falls within cl. (2) of that Article
and he may be made liable in a court of law for breach of
such law, but el. (2) of Art. 194 categorically lays down
that no member of the Legislature is to be made liable to
any proceedings in any court in respect of anything said or
any vote given by him in the Legislature or in committees
thereof and that no person will be liable in respect of the
publication by or under the authority of the House of such a
Legislature of any report, paper or proceedings. The
provisions of cl. (2) of Art. 194, therefore, indicate that
the freedom of speech referred to in el. (1) is different
from the freedom of speech and expression guaranteed
857
under Art. 19(1)(a) and cannot be cut down in any way by any
law contemplated by cl. (2) of Art. 19.
As to the second head of arguments noted above it has to be
pointed out that if the intention of cl. (1) of Art. 194 was
only to indicate that it was an abridgement of the freedom
of speech which would have been available to a member of the
Legislature as a citizen under Art. 19(1)(a), then it would
have been easier to say in cl. (1) that the freedom of
speech conferred by Art. 19(1)(a), when exercised in the
Legislature of a State, would, in addition to the
restrictions permissible by law under cl. (2) of that
Article, be further subject to the provisions of the
Constitution and the rules and standing orders regulating
procedure of that Legislature. There would have been no
necessity for conferring a new the freedom of speech as the
words " there shall be freedom of speech in the Legislature
of every State " obviously intend to do.
Learned advocate for the petitioner has laid great emphasis
on the two parts of the provisions of cl. (3) of Art. 194,
namely, that the powers, privileges and immunities of a
House of the Legislature of a State and of the members and
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committees thereof shall be such as may from time to time be
defined by the Legislature by law and that until then they
shall be those of the House of Commons of the Parliament of
the United Kingdom and of its -members and committees. The
argument is that a law defining the powers, privileges and
immunities of a House or Houses and the members and
committees thereof can be made by Parliament under entry 74
in List I and by the State Legislature under entry 39 of
List 11 and if a law so made takes away or abridges the
right to freedom of speech guaranteed under Art. 19(1)(a)
and is not protected under Art. 19(2), it will at once
attract the operation of the peremptory provisions of Art.
13 and become void to the extent of the contravention of
that Article. But it is pointed out that if Parliament or
the State Legislature does not choose to define the powers,
privileges and immunities and the Houses of Parliament or
the House or Houses of the State Legislature
108
858
or the members and committees thereof get the powers,
privileges and immunities of the House of Commons, there can
be no reason why, in such event, the last mentioned powers,
privileges and immunities should be independent of and
override the provisions of Art. 19 (1)(a). The conclusion
sought to be pressed upon us is that that could not be
the intention of the Constitution makers and, therefore, it
must be held that the powers, privileges and immunities of
the House of Commons and of its members and committees that
are conferred by the latter part of Art. 105(3) on each
House of Parliament and the members and committees thereof
and by the latter part of Art. 194(3) on a House of the
Legislature of a State and the members and committees
thereof must be, like the powers, privileges and immunities
defined by law, to be made by Parliament or the State
Legislature as the case may be, subject to the provisions of
Art. 19(1)(a). We are unable to accept this reasoning. It
is true, that a law made by Parliament in pursuance of the
earlier part of Art. 105(3) or by the State Legislature in
pursuance of the earlier part of Art. 194(3) will, not be a
law made in exercise of constituent power like the law which
was considered in Sankari Prasad Singh Deo v. Union of India
(1) but will be one made in exercise of its ordinary
legislative powers under Art. 246 read with the entries
referred to above and that consequently if such a law takes
away or abridges any of the fundamental rights it will
contravene the peremptory provisions of Art. 13(2) and will
be void to the extent of such contravention and it may well
be that that is precisely the reason why our Parliament and
the State Legislatures have not made any law defining the
powers, privileges and immunities just as the Australian
Parliament had not made any under s. 49 of their
Constitution corresponding to Art. 194(3) up to 1955 when
the case of The Queen v. Richards (2) was decided. It does
not, however, follow that if the powers, privileges or
immunities conferred by the latter part of those Articles
are repugnant to the fundamental rights, they must also be
void to the
(1) [1952] S.C.R. 89, go.
(2) (1955) 92 C L.R. 57.
859
extent of such repugnancy. it must not be overlooked that
the provisions of Art. 105(3) and Art. 194(3) are
constitutional 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. Further, quite
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conceivably our Constitution makers, not knowing what
powers, privileges and immunities Parliament or the
Legislature of a State may arrogate and claim for its
Houses- members or committees, thought fit not to take any
risk and accordingly made such laws subject to the
provisions of Art. 13 ; but that knowing and being satisfied
with the reasonableness of the powers, privileges and
immunities of the House of Commons at the commencement of
the Constitution, they did not in their wisdom, think fit to
make such powers, privileges and immunities subject to the
fundamental right conferred by Art. 19(1)(a). We must, by
applying the cardinal rules of construction ascertain the
intention of the Constitution makers from the language used
by them. In this connection the observations made in
Anantha Krishnan v. State of Madras (1) by Venkatarama
Aiyar, J., appear to us to be apposite and correct:-
"As against this the learned Advocate for the petitioner
urges that the fundamental rights are under the Constitution
in a paramount position, that under Art. 13 the Legislatures
of the country have no power to abrogate or abridge them,
that the power to tax is the power to destroy and that,
therefore, part 12 is inoperative in respect of the rights
conferred under Part 111. I am unable to agree. Art. 13 on
which this argument is mainly founded does not support such
a wide contention. It applies in terms only to laws in
force before the commencement of the Constitution and to
laws to be enacted by the States, that is, in future. It is
only those two classes of laws that are declared void as
against the provisions of Part 111. It does not apply to
the Constitution itself It does not enact that the other
portions of the Constitution should be void as against the
provisions in Part III and it would be surprising if it did,
seeing that all of them
(1) A.I.R. (1952) Mad, 395, 405.
860
are parts of one organic whole. Article 13, therefore,
cannot be read so as to render any portion of the Con-
stitution invalid. This conclusion is also in accordance
with the principle adopted in interpretation of statutes
that they should be so construed as to give effect and
operation to all portions thereof and that a construction
which renders any portion of them inoperative should be
avoided. For these reasons I must hold that the operation
of Part 12 is not cut down by Part III and that the
fundamental rights are within the powers of the taxation by
the State."
Article 19(1)(a) and Art. 194(3) have to be reconciled and
the only way of reconciling the same is to read Art.
19(1)(a) as subject to the latter part of Art. 194(3), just
as Art. 31 has been read as subject to Art. 265 in the cases
of Ramjilal v. Income-tax Officer, Mohindargarh (1) and
Laxmanappa Hanumantappa v. Union of India (2), where this
Court has held that Art. 31(1) has to be read as referring
to deprivation of property otherwise than by way of
taxation. In the light of the foregoing discussion, the
observations in the Madhya Bharat case (3) relied on by the
petitioner, cannot, with respect, be supported as correct.
Our decision in Gunupati Keshavram Reddy v. Nafisul Hasan
(4), also relied on by learned advocate for the petitioner,
proceeded entirely on a concession of counsel and -cannot be
regarded as a considered opinion on the subject. In our
judgment the principle of harmonious construction must be
adopted and so construed, the provisions of Art. 19(1)(a),
which are general, must yield to Art. 194(1) and the latter
part of its el. (3) which are special.
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Seeing that the present proceedings have been initiated on a
petition under Art. 32 of the Constitution and as the
petitioner may not be entitled, for reasons stated above, to
avail himself of Art. 19(1)(a) to support this application,
learned advocate for the petitioner falls back upon Art. 21
and contends that the proceedings before the Committee of
Privileges threaten to deprive him of personal liberty
otherwise
(1) [1951] S.C R. 127.
(3) A.I.R. (1952) M.B. 31, 43,
(2) [1955] 1 S.C.R. 769.
(4) A.I.R. (1954) S.C. 636.
861
than in accordance with procedure established by law. The
Legislative Assembly claims that under Art. 194(3) it has
all the powers, privileges and immunities enjoyed by the
British House of Commons at the commencement of our
Constitution. If it has those powers, privileges and
immunities, then it can certainly enforce the same, as the
House of Commons can do. Article 194(3) confers on the
Legislative Assembly those powers, privileges and immunities
and Art. 208 confers power on it to frame rules. The Bihar
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 I-louse 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.
We now proceed to consider the other points raised by
learned counsel for the petitioner. He argues that assuming
that the Legislative Assembly has the powers, privileges and
immunities it claims and that they override the fundamental
right of the petitioner, the Legislative Assembly,
nevertheless, must exercise those privileges and immunities
in accordance with the standing orders laying down the rules
of procedure governing the conduct of its business made in
exercise of powers under Art. 208. Rule 207 lays down the
conditions as to the admissibility of a motion of privilege.
According to cl. (ii) of this rule the motion must relate to
a specific matter of recent occurrence. The speech was
delivered on May 30,1957, and Shri Nawal Kishore Sinha
M.L.A. sent his notice of motion on June 10, 1957, that is
to say, 10 days after the speech had been delivered. The
matter that occurred 10 days prior to the date of the
submission of the notice of motion cannot be said to be a
specific matter of recent
862
occurrence. It is impossible for this Court to prescribe a
particular period for moving a privilege motion so as to
make the subject matter of the motion a specific matter of
recent occurrence. This matter must obviously be left to
the discretion of the Speaker of the House of Legislature to
determine whether the subject matter of the motion is or is
not a specific matter of recent occurrence. The copies of
the proceedings marked as Annexure D in Annexure III to the
petition do not disclose that any objection was taken by any
member on the ground that the matter was not a specific
matter of recent occurrence. We do not consider that there
is any substance in this objection.
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Reference is then made to rr. 208 and 209 which lay down the
procedure as to what is to happen if any objection is taken
to leave being granted to the mover to move his motion. It
is said that Shri Ramcharitra Sinha M.L.A. had raised an
objection to leave being granted to Shri Nawal Kishore Sinha
to move the privilege motion. This allegation in the
petition does not appear to be borne out by the account of
proceedings in the House to which reference has been made.
Shri Ramcharitra Sinha only wanted to know the convention
relating to the question of admissibility of such a motion
and the Speaker accordingly read out el. (ii) of r. 208.
After that Shri Ramcharitra Sinha did not say anything
further. The Speaker then said that he understood that
there was no opposition in the matter and, therefore, the
Hon’ble member was to be understood as having received the
leave of the House and called upon him to say what be wanted
to say. Thereupon, as stated earlier, Shri Karpuri Thakur
wanted to know what had been published in the Searchlight of
May 31, 1957, and what ought not to have been published.
The Speaker thereupon read out the notice submitted by Shri
Nawal Kishore Sinha which concisely referred to the subject
matter of the motion and contained a reference to the issue
of the Searchlight of May 31, 1957, a copy of which was
filed along with the notice. After the notice had been read
the Speaker permitted Shri Nawal Kishore Sinha to move his
privilege motion, which the latter did. There
863
was no amendment proposed and the Speaker then stated what
the question before the House was, Nobody having indicated
his opposition, he declared the motion to be carried. There
was, in the circumstances, no non-compliance with the
provisions of r. 208 read with r. 209.
The next argument founded on non-compliance with the rules
is based on r. 215. Clause (i) of that rule provides that
the Committee of Privileges should meet as soon as may be
after the question has been referred to it and from time to
time thereafter till a report is made within the time fixed
by the House. In this case the House admittedly did not fix
a time within which the report was to be made by the
Committee of Privileges. This circumstance immediately
attracts the proviso, according to which where the House
does not fix any time for the presentation of the report,
the report has to be presented within one month of the date
on which the reference to the Committee was made. Learned
advocate for the petitioner argues that one month’s time had
long gone past and, therefore, the Committee of Privileges
became functus officio and cannot, under the rules, proceed
with the reference. There is no substance in this
contention, because the second proviso to cl. (i) of r. 215
clearly provides that the House may at any time on a motion
being made direct that the time for the presentation of the
report by the Committee be extended to a date specified in
the motion. The words " at any time " occurring in the
second proviso quite clearly indicate that this extension of
time may be within the time fixed by the House or, on its
failure to do so, within the time fixed by the first proviso
or even thereafter, but before the report is actually made
or presented to the House (Cf. Raja Har Narain Singh v.
Chaudhrain Bhagwant Kuar) (1). Further, the question of
time within which the Committee of Privileges is to make its
report to the House is a matter of internal management of
the affairs of the House and a matter between the House and
its Committee and confers no right on the party whose
conduct is the subject matter of investigation
(1) (1891) L.R. 18 I.A. 55, 58.
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864
and this is so particularly when the House has the power to
extend time " at any time ".
The next argument is that the Committee cannot proceed to
investigate what has not been referred to it. Reference is
made to the resolution of the Committee (Annexure 11 to the
petition) and the notice issued to the petitioner (Annexure
I to the petition). It is said that while the Committee’s
resolution speaks of publishing " a perverted and unfaithful
report of the proceedings of the Assembly relating to the
speech of Maheshwar Prasad, Narayan Sinha M.L.A." including
the expunged portion thereof, the notice simply refers to "
a question involving breach of privilege of the Bihar
Legislative Assembly arising out of the publication of the
news item " and calls upon the petitioner to show cause why
appropriate action should not be recommended against him "
for breach of privilege of the Speaker and the Assembly ".
We fail to perceive how the two documents can be read as re-
ferring to two different charges. The notice served on the
petitioner is couched in terms which cover the matters
referred to in the Committee’s resolution. The effect in
law of the order of the Speaker to expunge a portion of the
speech of a member may be as if that portion bad not been
spoken. A report of the whole speech in such circumstances,
though factually correct, may, in law, be rewarded as
perverted and unfaithful report and the publication of such
a perverted and unfaithful report of a speech, i.e.,
including the expunged portion in derogation to the orders
of the Speaker passed in the House may, prima facie, be
regarded as constituting a breach of the privilege of the
House arising out of the publication of the offending news
item and that is precisely the charge that is contemplated
by the Committee’s resolution and which the petitioner is by
the notice called upon to answer. We prefer to express no
opinion as to whether there has, in fact, been any breach of
the privilege of the House, for of
that the House alone is the judge;
The next argument urged by learned advocate for the
petitioner is that, after the House had referred the matter
to the committee of privileges, nothing was
865
done for about one year, and after such a lapse of time the
committee has suddenly woke up and resuscitated the matter
only with a view to penalise the petitioner. In paragraph
17 of the petition the charge of mala fides is thus
formulated:-
" 17. That the Committee of Privileges aforesaid is
proceeding against the petitioner mala fide with a view to
victimise and muzzle him since the petitioner has been
through his newspaper unsparingly criticising the
administration in the State of Bihar of which opposite party
No. 1 is the Chief Minister."
It will be noticed that the allegation of mala fides is
against the Committee of Privileges and not against the
Chief Minister and, therefore, to controvert this allegation
an affidavit affirmed by the Secretary to the Bihar
Legislative Assembly has been filed. In the affidavit in
reply reference is made to certain issues of the Searchlight
indicating that charges were being made by the paper against
the Chief Minister and the suggestion is that it is at the
instance of the Chief Minister that the Committee has now
moved in the matter. This is a new allegation. That apart,
the Chief Minister is but one of the fifteen members of the
Committee and one of the three hundred and nineteen members
of the House. The Committee of Privileges ordinarily
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includes members of all parties represented in the House and
it is difficult to expect that the Committee, as a body,
will be actuated by any mala fide intention against the
petitioner. Further the business of the Committee is only
to make a report to the House and the ultimate decision will
be that of the House itself. In the circumstances, the
allegation of bad faith cannot be readily accepted. It is
also urged that the Chief Minister should not take part in
the proceedings before the Committee because he has an
interest in the matter and reference is made to the decision
in Queen v. Meyer (1). The case of bias of the Chief
Minister (respondent 2) has not been made anywhere in the
petition and we do not think if would be right to permit the
petitioner to raise this question, for it depends
(1) L.R. (1876) 1 Q.B.D. 173.
109
866
on facts which were not mentioned in the petition but were
put forward in a rejoinder to which the respondents had no
opportunity to reply.
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 Legislature 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 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 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
that a portion of the proceedings be expunged amounts 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.
For reasons stated above we think that this petition should
be dismissed. In the circumstances, there will be no order
for costs.
SUBBA RAO, J.-I have had the advantage of perusing the well
considered judgment of my. Lord the Chief Justice. It is
my misfortune to differ from him and my learned brethren. I
would not have ventured to do so but for my conviction that
the reasoning adopted therein would unduly restrict and
circumscribe the wide scope and content of one of the
cherished fundamental rights, namely, the freedom of speech
in its application to the Press.
867
This is an application under Article 32 of the Constitution
for quashing the proceedings before the Committee of
Privileges of the Bihar Legislative Assembly I and for
restraining the respondents, i.e., the Chief Minister of
Bihar and the said Committee of Privileges, from proceeding
against the petitioner for the s publication in the issue of
the " Searchlight " dated May 31, 1957, an account of the
debate in the House (The Legislative Assembly, Bihar) on May
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 54
30, 1957, and for other incidental reliefs. The petitioner,
Pandit M. S. M. Sharma, is the editor of the " Searchlight
", an English daily newspaper published from Patna in the
State of Bihar. On May 30, 1957, Shri Maheswara Prasad
Narayan Singh, a member of the State Assembly made a bitter
attack in the Assembly on the Chief Minister, Shri Sri
Krishna Sinha, and on Shri Mahesh Prasad Sinha, a minister
in the previous cabinet, who was defeated at the last
General Elections. It is said that in regard to that speech
the Speaker gave a ruling that certain portions thereof
should be expunged from the proceedings. In the issue of
the " Searchlight" dated May 31, 1957, an accurate and
faithful account of the, proceedings of the Bihar
Legislative Assembly of May 30, 1957, was published under
the caption "BITTEREST ATTACK ON CHIEF MINISTER ". It was
also indicated in the report that the Speaker had disallowed
the member to name Mr. Mahesh Prasad Sinha in respect of the
Ministry formation and confined him to his remarks in regard
to his chairmanship of the Khadi Board. It is alleged in
the affidavit that till May 31, 1957, it was not known to
any member of the staff of the " Searchlight ", including
the petitioner, that any portion of the debate in question
had been expunged from the official record of the Assembly
proceedings of May 30, 1957, and that in fact the petitioner
did not publish the expunged remarks. This fact was denied
by the respondents in their counter, but it was not alleged
that the Speaker made any specific order or gave any
direction prohibiting the publication of any part of the
proceedings of the Assembly in any newspaper. On June 10,
1957, Shri Nawal Kishore Sinha moved a privilege motion
868
in the House and it was carried, as, presumably, :no one had
opposed it. On the same day, the House referred the matter
to the Committee of Privileges without fixing any date for
the presentation of the report a of the Committee. The
Committee in due course held its meeting presided over by
the Chief Minister and found that a prima facie case of
breach of privilege had been made out against the
petitioner. Then, the Secretary to the Legislative Assembly
issued a notice to the petitioner informing him of the fact
that the Committee had found a prima facie case of breach of
privilege made out against him and asking him to show cause,
if any, on or before September 8, 1958, why appropriate
action should not be taken against him. Along with that
notice, a copy of the motion as adopted by the Committee of
Privileges in its meeting held on August 10, 1958, and a
copy of a booklet containing a collection of the papers
relating to the privilege motion moved by Shri Nawal Kishore
Sinha, M.L.A., on June 16, 1957, were enclosed for ready
reference. The booklet accompanying the notice contained
the motion moved in the House, the report published in the
"Searchlight " dated May 31, 1957, and the rules of the
Assembly relating to the Committee of Privileges. Though
there was some argument on the construction of the terms of
the resolution passed by the Committee on account of the
unhappy language in which it was couched, it is manifest
that the breach of privilege pleaded was that the
petitioner, by including the expunged portion of the speech
of Maheshwar Prasad Narayan Singh, published a perverted and
unfaithful report of the proceedings of the Assembly. The
petitioner, thereafter, filed a petition under Art. 32 of
the Constitution for the aforesaid reliefs.
On the aforesaid facts, the learned Counsel for the
petitioner, raised the following points in support of the
petition : (1) The petitioner, as a citizen of India, has
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 54
the fundamental right under Art. 19 (1) of the Constitution
to freedom of speech and expression, which includes the
freedom of propagation of ideas and their publication and
circulation; and the Legislature of a State cannot claim a
privilege in such a
869
way as to infringe that right. This contention is put in
two ways: (i) The privilege conferred on the Legislature of
a State is subject to the freedom conferred on a citizen
under Art. 19 (1) of the Constitution ; and (ii) that even
if the privilege was not expressly made subject to the
fundamental right under Art. 19 (1), having regard to the
nature of the fundamental right and the rules of
interpretation, this Court should so construe the provisions
as to give force to both the provisions. (2) Even if Art.
194 (3) overrides the provisions of Art. 19, the powers,
privileges and immunities of the House of Legislature are
only those of the House of Commons of the Parliament of the
United Kingdom, at the commencement of the Constitution,
i.e., January 26, 1950; and the House of Commons on that
date had no privilege to prevent the publication of its
proceedings or portion expunged by the Speaker in respect of
the proceedings. (3) Under Art. 21 of the Constitution, no
person is to be deprived of his personal liberty except in
accordance with the procedure established by law and that
the Privilege Committee, by calling upon the petitioner to
appear at the Bar of the Legislature after making an enquiry
in violation of the rules, particularly the rr. 207 (2), 208
(3) and 215 of the rules of the Assembly relating to the
Committee of Privileges, has infringed his right under that
Article. (4) Mr. Maheshwara Prasad Narayan Singh made a
bitter attack on the Chief Minister and that report was
published in the " Searchlight ". The Chief Minister, who
has admittedly control over the Legislature or at any rate
over the majority of the members of the Assembly, was
actuated by mala fides in securing the initiation of the,
proceedings against the petitioner for breach of privilege,
and therefore his presiding over the meeting of the Sub-
Committee would vitiate its entire proceedings. (5) The
Committee of Privileges enquired into an allegation not
referred to it by the House. The learned Solicitor General,
appearing for the respondents, countered the said arguments
and his contentions may be summarized thus: Under the
Constitution, no particular Article has more sanctity than
the other, even though that
870
Article deals with fundamental rights. Article 194 (3) is
not made subject to Art. 19 of the Constitution, and,
therefore, if the House of Commons of the Parliament of the
United Kingdom has the power or privilege to prevent the
publication of its proceedings, or at any rate of the
expunged portions of it, the Legislature of a State in
India, has also a similar privilege or power and it can
exercise it, notwithstanding the fact that it infringes the
fundamental right of a citizen. The House of Commons of the
United Kingdom has such a privilege and therefore the
Legislature of Bihar can exercise it and take action against
the person committing a breach thereof. While a Court of
Law can decide on the question of the existence and the
extent of the privilege of a House, it has no power or
jurisdiction to consider whether a particular person in fact
committed a breach thereof. The Legislature in this case
has not broken any of the rules of the Assembly relating to
the Committee of Privileges, and even if it did, by reason
of Art. 212 (1) of the Constitution, the validity of its
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 54
proceedings cannot be questioned on the ground of any
alleged irregularity of the procedure. There was no
allegation in the petition that the Committee or the
Assembly was actuated by mala fides and even if the Chief
Minister was acting with mala fides-which fact was denied-,
the proceedings of the Committee or of the Legislature,
which is the final authority in the matter of deciding
whether there was a breach of privilege, would not de
vitiated. It was also denied that the Committee of
Privileges enquired into any allegation not referred to it
by the House.
At the outset it would be convenient to clear the ground of
the subsidiary ramifications falling outside the field of
controversy and focus on the point that directly arises in
this case. We are not concerned here with the undoubted
right of a State Legislature to control and regulate its
domestic affairs. In " Cases in Constitutional Law " by
Keir and Lawson, it is stated, at page 126, as follows:
"The undoubted privileges of the House of Commons are of
three kinds. They include (i) exclusive
871
jurisdiction over all questions which arise within the walls
of the house, except, perhaps, in case of
felony................................ (ii) Certain personal
privileges which attach to members of Parliament. The most
important of these are freedom of debate, and immunity from
civil arrest during the sitting of Parliament and for forty
days before and after its
assembling.............................. ’ That the freedom
of speech and debates or proceedings in Parliament ought not
to be impeached or questioned in any Court or place out of
Parliament’. (iii) The power of executing decisions on
matters of privilege by committing members of Parliament, or
any other individuals, to imprisonment for contempt of the
House."
Nor we are called upon to decide on the scope of a Court’s
jurisdiction to set aside the orders of contempt made by the
Legislature or warrants issued to implement the said orders.
Reported decisions seem to suggest that if the order
committing a person for contempt or the warrant issued
pursuant thereto discloses the reasons, the Court can decide
whether there is a privilege and also its extent; but, when
it purports to issue a bald order, the Court has no power to
decide, on the basis of other evidence, whether in fact a
breach of privilege is involved. As this question does not
arise in this case, I need not express any opinion thereon.
The stand taken by the Legislature, as disclosed in the
notice issued, the enclosed records sent to the petitioner,
in the counter-affidavit filed and the arguments advanced by
the respondents, is that the Legislature of a State has the
privilege to prevent any citizen from publishing the
proceedings of the Legislature or at any rate such portions
of it as are ordered to be expunged by the Speaker, and
therefore it has a right to take action against the person
committing a breach of such a privilege. The main question,
therefore, that falls to be decided is whether the
Legislature has such a privilege. If this question is
answered against the Legislature, no other question arises
for consideration.
872
The powers, privileges, and immunities of a State
Legislature are governed by Art. 194 of the Constitution and
the freedom of propagation of ideas, their publication and
circulation by Art. 19(1)(a) thereof. For convenience of
reference, both these articles may be read in juxtaposition.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 54
Article 19 reads:
" (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."
Article 194 states:
" (1) Subject to the provisions of this Constitution and to
the rules and standing orders regulating the procedure of
the Legislature, there shall be freedom of speech in the
Legislature of every State.
(2) No member of the Legislature of a State shall be liable
to any proceedings in any court in respect of anything said
or any vote given by him in the Legislature or any committee
thereof, and no person shall be so liable in respect of the
publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and
immunities of a House of the Legislature of a State, and of
the members and the committees of a House of such
Legislature, shall be such as may from time to time be
defined by the Legislature by law, and, until so defined,
shall be those of the House of Commons of the Parliament of
the United Kingdom- and of its members and committees, at
the commencement of this Constitution.
873
(4) The provisions of clauses (1), (2) and (3) shall apply
in relation to persons who by virtue of this Constitution
have the right to speak in, and otherwise to take part in
the proceedings of, a House of the Legislature of a State or
any committee thereof as they apply in relation to members
of that Legislature."
In Romesh Thappar v. The State of Madras (1), this Court
ruled that freedom of speech and expression includes freedom
of propagation of ideas and that freedom is ensured by the
freedom of circulation. This freedom is, therefore,
comprehensive enough to take in the freedom of the press.
The said view is accepted and followed in Brij Bhushan v.
The State of Delhi (2). To the same effect is the decision
of this Court in Express Newspapers Ltd. v. Union of India
(3), where Bhagwati, J., delivering the judgment of the
Court, held that freedom of speech and expression includes
within its scope the -freedom of the Press. In Srinivasan
v. The State of Madras (4) it was held, on the basis of the
view expressed by this Court, that the terms " freedom of
speech and expression " would include the liberty to
propagate not only one’s own views but also the right to
print matters which are not one’s own views but have either
been borrowed from someone else or are printed under the
direction of that person. I would, therefore, proceed to,
consider the argument advanced on the basis that the freedom
of speech in Art. 19(1)(a) takes in also the freedom of the
Press in the comprehensive sense indicated by me supra. The
importance of the freedom of speech in a democratic country
cannot be over-emphasized, and in recognition thereof, cl.
(2) of Art. 19 unlike other clauses of that Article,
confines the scope of the restrictions on the said freedom
within comparatively narrower limits. Clause (2) enables
the State to impose reasonable restrictions on the exercise
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 54
of the said right in the interest of the security of the
State, friendly relations with foreign States, public order,
decency or
(1) [1950] S.C.R. 594. (2) [1950] S.C.R. 605.
(3) [1959] S.C.R. 12, 118. (4) A.I.R. (1951) Mad. 70.
110
874
morality, or in relation to contempt of Court defamation or
incitement to an offence. The said Article finds place in
Part III under the heading " Fundamental Rights ". Article
13 makes laws that are inconsistent with or in derogation
of the fundamental rights void and clause (2) thereof
expressly prohibits the State from making laws in
contravention of the said rights. In the words of Patanjali
Sastri, C. J., the said rights in Part III are " rights
reserved by the people after delegation of the rights by the
people to the institutions of government ". It is true, and
it cannot be denied, that notwithstanding the transcendental
nature of the said rights, the Constitution may empower the
Legislature to restrict the scope of the said rights within
reasonable bounds, as in fact it did under cls. (2) to (6)
of Art. 19. Such restrictions may be by express words or by
necessary implication.But the Court would not and should
not, having regard to the nature of the rights, readily
infer such a restriction unless there are compelling reasons
to do so. The Constitution adopted different and well-
understood phraseology to resolve conflicts and prevent
overlapping of various provisions. Some Articles are
expressly made subject to the provisions of the Con-
stitution-vide Arts. 71(3), 73(1), 105, 131, etc.-, and some
to specified Articles-vide Arts. 81, 107(1), 107(2) 114(3),
120(1), etc. Some Articles are made effective
notwithstanding other provisions in the Constitution -vide
Arts. 120(1), 136(1), 143(2), 169(1), etc. Where the
Constitution adopts one or other of the said two devices,
its intention is clear and unambiguous; but, there are other
Articles which are not expressly made subject to provisions
of the Constitution or whose operation is not made effective
notwithstanding any other provisions. In such cases, a duty
is cast upon the Court to ascertain the intention of the
Constituent Assembly. Cooley in his " Constitutional Law "
points out that " however carefully constitutions may be
made, their meaning must be often drawn in question ". He
lays down, at page 427, the following rule, among others, as
a guide to the construction of these instruments:
875
"The whole instrument is to be examined, with a view of
determining the intention of each part. Moreover, effect is
to be given, if possible, to the whole instrument, and to
every section and clause. And in interpreting clauses it
must be presumed that words have been used in their natural
and ordinary meaning.
The rule may also be stated in a different way: If two
Articles appear to be in conflict, every attempt should be
made to reconcile them or to make them to co-exist before
excluding or rejecting the operation of one.
Article 194(3) of the Constitution, with which we are
concerned, does not in express terms make that clause
subject to the provisions of the Constitution or to those of
Art. 19. Article 194 has three clauses. The first clause
declares that there shall be freedom of speech in the
Legislature of every State and that freedom is expressly
made subject to the provisions of the Constitution and to
the rules and the standing orders regulating the procedure
of the Legislature. Clause (2) gives protection to members
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of the Legislature of a State from any liability to any
proceedings in any Court in respect of anything said or any
vote given by him in the Legislature or any committee
thereof and to every person in respect of the publication by
or under the authority of a House of such a Legislature of
any report, paper, votes or procedure. The third clause,
with which we are now directly concerned, confers upon a
House of the Legislature of a State and of the members and
the committees thereof certain powers, privileges and
immunities. It is in two parts. The first part says that
the powers, privileges and immunities of a House of the
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 the
second part declares that until so defined, they shall be
those of the House of Commons of the Parliament of the
United Kingdom and its members and committees, at the
commencement of the Constitution. The question is whether
876
this clause confers on the Legislature powers, privileges
and immunities so as to infringe the fundamental right of a
citizen under Art. 19(1)(a) of the Constitution. The first
thing to be noticed is that while Art. 19(1)(a) of the
Constitution deals with the freedom of Speech and expression
of a citizen, Art. 194(1) declares that there shall be
freedom of speech in the Legislature of every State. While
Art. 19(1) is general in terms and is subject only to
reasonable restrictions made under clause (2) of the said
Article, Art. 194(1) makes the freedom of speech subject to
the provisions of the Constitution and rules and standing
orders regulating the procedure of the Legislature. Clause
(2) flows from cl. (1) and it affords protection from lia-
bility to any proceedings in a Court for persons in respect
of the acts mentioned therein. But these two provisions do
not touch the fundamental right of a citizen to publish
proceedings which he is entitled to do under Art. 19(1) of
the Constitution. That is dealt with by el. (3). That
clause provides for powers, privileges and immunities of a
House of the Legislature of a State and of the members and
the committees of a House, other than those specified in cl.
(2). it is not expressly made subject to the provisions of
the Constitution. I find it difficult to read in that
clause the opening words of el. (1), viz.,, " subject to the
provisions of this Constitution ", for two reasons: (i) cl.
(3) deals with a subject wider in scope than cl.(1) and
therefore did not flow from cl. (1); and (ii) grammatically
it is not possible to import the opening words of cl. (1)
into cl. (3). Therefore, I shall proceed on the basis that
cl. (3) is not expressly made subject to Art. 19 or
expressly made independent of other Articles of the
Constitution. We must, therefore, scrutinize the provisions
of that clause in the context of the other provisions of the
Constitution to ascertain whether by necessary implication
it excludes the operation of Art. 19. The first thing to be
noticed in cl. (3) of Art. 194 is that the Constitution
declares that the powers, privileges and immunities of a
House of Legislature of a State and of the members and com-
mittees of a House of such Legislature are such as
877
defined by the Legislature by law. In the second part, as a
transitory measure, it directs that till they are so
defined, they 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 the Constitution. I find
it impossible to accept the contention that the second part
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is not a transitory provision; for, the said argument is in
the teeth of the express words used therein. It is
inconceivable that the Constituent Assembly, having framed
the Constitution covering various fields of activity in
minute detail, should have thought fit to leave the
privileges of the Legislatures in such a vague and nebulous
position compelling the Legislatures to ascertain the con-
tent of their privileges from those obtaining in the House
of Commons at the commencement of the Constitution. The
privilege of the House of Commons is an organic growth.
Sometimes a particular rule persists in the record but falls
into disuse in practice. Privileges, just like other
branches of common law, are results of compromise depending
upon the particular circumstances of a given situation. How
difficult it is to ascertain the privilege of the House of
Commons and its content and extent in a given case is
illustrated by this case.
Reliance is placed upon other Articles of the Constitution
in support of the contention that the second part of cl. (3)
is not intended to be transitory in nature. Under Art. 135
of the Constitution, until Parliament by law otherwise
provides, the Supreme Court shall have certain appellate
jurisdiction. Under Art. 137, subject to the provisions of
any law made by Parliament or any rules made under Art. 145,
the Supreme Court shall have power to review any judgment
pronounced or order made by it. Article 142(2) says:
"Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respect the whole of
the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any
person, the discovery or production of any documents, or the
investigation or punishment of any contempt of itself."
Article 145
878
reads:"Subject to the provisions of any law made by
Parliament, the Supreme Court may from time to time, with
the approval of the President, make rules for regulating
generally the practice and procedure of the
Court............. Under Art. 146(2), "Subject to the
provisions of any law made by Parliament, the conditions of
service of officers and servants of the Supreme Court shall
be such as may be prescribed by rules made by the Chief
Justice of India or by some other Judge or officer of the
Court authorised by the Chief Justice of India to make rules
for the purpose." Under Art. 187(3), " Until provision is
made by the Legislature of the State under clause (2), the
Governor may, after consultation with the Speaker of the
Legislative Assembly or the Chairman of the Legislative
Council, as the case may be, make rules regulating the
recruitment, and the conditions of service of persons
appointed, to the secretarial staff of the Assembly or the
Council, and any rules so made shall have effect subject to
the provisions of any law made under the said clause ".
Clause (2) of Art. 210 says " Unless the Legislature of the
State by law otherwise provides, this article shall, after
the expiration of a period of fifteen years from the
commencement of this Constitution, have effect as if the
words I or in English’ were omitted therefrom."
I do not see any analogy between the first part of Art.
194(3) and the provisions of the aforesaid Articles.
Firstly, the said Articles do not import into India the law
of a foreign country; secondly, they either make the
existing law subject to the provisions of any law made by
Parliament, or declare a particular law to be in force
unless modified by Parliament; whereas in Art. 194(3) the
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Constitution expressly declares that the law in respect of
powers, privileges and immunities is that made by a House of
the Legislature from time to time and introduces a rider as
a transitory measure that till such law is made, the powers,
privileges and immunities of the House of Commons should be
those of the Legislature also. I have no doubt, therefore,
that part two of cl..(3) of Art. 194 is intended to be a
transitory provision and ordinarily,
879
unless there is a clear intention to the contrary, it cannot
be given a higher sanctity than that of the first part of
cl. (3). The first part of el. (3) reads:
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............. Article 245 enables a State to make laws
for the whole or any part of the State. Article 246(3) pro-
vides that the Legislature of any State has exclusive power
to make laws with respect to any of the matters enumerated
in List II in the Seventh Schedule (in the Constitution
referred to as the " State List "). Item 39 of List II of
the Seventh Schedule enumerates the following matters among
others: " Powers, privileges and immunities of the
Legislative Assembly and of the members and the committees
thereof............. Clause (2) of Art. 13, which is one of
the Articles in Part III relating to fundamental rights,
prohibits the State from making any law which takes away or
abridges the rights conferred by that Part and declares that
any law made in contravention of that clause shall to the
extent of the contravention be void. It is, therefore,
manifest that the law made by the 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 Art. 19(1)(a) of the
Constitution, unless it is saved by any law prescribing
reasonable restrictions within the ambit of Art. 19(2). So
much is conceded by the learned Solicitor General. Then,
what is the reason or justification for holding that the
second part of that clause should be read in a different way
as to be free from the impact of the fundamental rights.
When the Constitution expressly made the laws prescribing
the privileges of the Legislature of a State of our country
subject to the fundamental rights, there is no apparent
reason why they should have omitted that limitation in the
case of the privileges of the Parliament of the United
Kingdom in their application to a State Legislature. We
cannot assume that
880
the framers of the Constitution thought that the privileges
of the House of Commons were subject to the fundamental
rights in that country; for, to assume that is to impute
ignorance to them of the fact that the Parliament of the
United Kingdom was supreme and there were no fetters on its
power of legislation. The contention also, if accepted,
would lead to the anomaly of a law providing for privileges
made by Parliament or a Legislature of our country being
struck down as infringing the fundamental rights, while the
same privilege or privileges, if no law was made, would be
valid. Except the far-fetched suggestion that the
Constitution-makers might have thought that all the
privileges of the House of Commons, being the mother of
Parliaments, would not in fact offend the fundamental rights
and that, therefore, they designedly left them untouched by
Part III as unnecessary or the equally untenable guess that
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they thought that for a temporary period the operation and
the extent of the said privileges need not be curtailed, no
convincing or even plausible reason is offered for the
alleged different treatment meted out to the said privileges
in the said two parts of el. (3). If the Constitution
intended to make the distinction, it would have opened the
second part of cl. (3) with the words " Notwithstanding
other provisions of the Constitution or
those of Art. 19 ".
I cannot also appreciate the argument that Art. 194 should
be preferred to Art. 19(1) and not vice versa. Under the
Constitution, it is the duty of this Court to give a
harmonious construction to both the provisions so that full
effect may be given to both, without the one excluding the
other. There is no inherent inconsistency between the two
provisions. Article 19(1) (a) gives freedom of speech and
expression to a citizen, while the second part of Art.
194(3) deals with the powers, privileges and immunities of
the Legislature and of its members and committees. The
Legislature and its members have certainly a wide range of
powers and privileges and the said privileges can be
exercised without infringing the rights of a citizen, and
particularly of one who is not a member of the Legislature.
881
When there is a conflict, the privilege should yield to the
extent it affects the fundamental right. This construction
gives full effect to both the Articles. A This Court in
Gunupati Keshavram Reddy v. Nafisul Hasan (1) held that the
order of arrest of Mr. Mistry and his detention in the
Speaker’s custody was a breach of the provisions of Art.
22(2) of the Constitution. In that case, the said Mistry
was directed by the Speaker of the U. P. Legislative
Assembly to be arrested and produced before him to answer a
charge of breach of privilege. Though the question was not
elaborately considered, five judges of this Court un-
animously held that the arrest was a clear breach of the
provisions of Art. 22(2) of the Constitution indicating
thereby that Art. 194 was subject to Articles of Part III of
the Constitution. I am bound by the decision of this Court.
In the result, I hold that the petitioner has the
fundamental right to publish the report of the proceedings
of the Legislature and that, as no reasonable restrictions
were imposed by law on the said fundamental right, the
action of the respondents infringes his right entitling him
to the relief asked for.
This case does not, as it is supposed or suggested
illustrate any conflict between the Legislature and the
Court, but it is one between the Legislature and the
citizens of the State whose representatives constituted the
Legislature. I yield to none in my respect for that august
body, the Legislature of the State; but, we are under a
duty, enjoined on this Court by Art. 32 of the Constitution,
to protect the rights of the citizens who in theory reserved
to themselves certain rights and parted only the others to
the Legislature. Every institution created by the
Constitution, therefore’ should function within its allotted
field and cannot encroach upon the rights of the people who
created the institutions. It may not be out of place to
suggest to the appropriate authority to make a law
regulating the powers, privileges and immunities of the
Legislature instead of keeping this branch of law in a nebu-
lous state, with the result that a citizen will have to
(1) A.I.R. (1954) S.C. 636.
882
make a research into the unwritten law of the privileges of
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the House of Commons at the risk of being called before the
Bar of the Legislature.
The said conclusion would be sufficient to dispose of
this petition. But as it was argued at some length, it
would be as well that I expressed my opinion on the question
of the existence and the extent -of the relevant privileges
of the House of Commons at the commencement of the
Constitution. Before considering that question, it would be
convenient to notice briefly the scope of a Court’s
jurisdiction to investigate the nature and the extent of the
privilege claimed by the House of Commons. It is often said
that each House of Parliament is the sole judge of its own
privileges. But early in the history of British Parliament
the question of the scope of that equivocal statement was
raised and it was contended that the House’s jurisdiction
was confined only within the limits of the privileges as
defined by the Courts of Common Law. The said question was
raised and decided in Ashby v. White (1), Paty’s Case (2),
Stockdale v. Hansard (3) and in the Case of the Sheriff of
Middlesex(1). In the said cases, the Common Law rights of a
citizen were threatened by the House of Commons on the
ground that the person concerned committed a breach of the
privilege of the House. The combined effect of these
decisions is that " the Courts deny to the Houses the right
to determine the limits of their privileges, while allowing
them within those limits exclusive jurisdiction " In Anson’s
Law and Custom of the Constitution, the principle has been
neatly stated, at page 190, thus:-
" The Privileges of Parliament, like the prerogative of the
Crown, are rights conferred by law, and as such their limits
are ascertainable and determinable, like the limits of other
rights, by the Courts of Law." As the learned Solicitor
General conceded the said legal position, it would be
unnecessary to pursue the matter further or consider the
decisions in greater detail.
The main question, therefore, that falls to be decided is
the existence and the extent of the privilege
(1) (1703) 2 Ld. Raym. 938.
(3) (1839) 9 A. & F.
(2) (1704) 2 Ld. Raym. 1105.
(4) (1840) 11 A, & E. 809.
883
claimed by the respondents. As the privilege claimed by the
respondents is in derogation of the fundamental right of a
citizen, the burden lies heavily upon them to establish by
clear and unequivocal evidence that the House of Commons
possessed such a privilege. In the words of Coke " as the
privilege is part of the law of custom of the Parliament,
they must be collected out of the rolls of Parliament and
other records and by precedent and continued experience ".
They can be found only in the Journals of the House compiled
in the Journal Office from the manuscript minutes and notes
of proceedings made by the clerks at the table during the
sittings of the House. Decided cases and the text-books
would also help us to ascertain the privileges of the
Houses. The words " at the commencement of the Constitution
" indicate that the privileges intended to be attracted are
not of the dark and difficult days, when the House of
Commons passed through strife and struggle, but only those
obtaining in 1950, when it was functioning as a model
Legislature in a highly democratized country. In the
circumstance, a duty is cast upon the respondents to
establish with exactitude that the House of Commons
possessed the particular privilege claimed at the com-
mencement of the Constitution.
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The respondents claimed two privileges: (i) that the House
of Commons has the privilege of preventing the publication
of its proceedings ; and (ii) that it has the privilege to
prevent the publication of that part of the proceedings
directed by the Speaker to be expunged. Indeed the second
privilege is in fact comprehended by the first, which is
larger in scope.
A history of the said privilege is given in May’s
Parliamentary Practice as well as in Halsbury’s Laws of
England. In Halsbury’s Laws of England, 2nd Edition, Volume
24 (Lord Hailsham’s Edition), it is stated at pages 350-351
as follows:
It is within the power of either House of Parliament, should
it deem it expedient, to prohibit the publication of its
proceedings.
In the House of Lords, it is a breach of privilege for any
person to print or publish anything relating to
884
the proceedings of the House without its permission. The
House of Commons, upon many occasions, has declared the
publication of its proceedings without the authority of the
House to be a breach of privilege, and the House has never
formally rescinded the orders which from time to time it has
made with regard to this subject. 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."
At page 350 in the foot-note (d) the history of the said
privilege is given thus:-
" The jealousy of the House -of Commons with regard to the
privacy of its proceedings dates from the Long Parliament,
and was due to the antagonism which existed between that
assembly and the King. The object of the House at that time
was to prevent its own members or officers from supplying
the King with information which might incriminate its mem-
bers; see Resolutions of the House of Commons of July 13,
1641 (Journals of the House of Commons, 1641, Vol. II, page
209). It was not until -after the Revolution of 1689 that
the House came in contact with unofficial reporters who
furnished, for the news letters of the day, reports, often
prejudicial and generally inaccurate, of the proceedings of
the Commons. In 1738 the House passed a resolution stating
that it was " an high indignity to, and a notorious breach
of privilege of, this House, for any news writer, in letters
or other papers (as minutes, or under any other
denomination), or for any printer or publisher of any
printed newspaper of any denomination to insert in the said
letters or papers, or to give therein any account of the
debates or other proceedings Of this House or any committee
thereof, as well during the recess, as the sitting of
Parliament; and that this House will proceed with the utmost
severity against such offenders (Journals of the House of
Commons, 1738, Vol. XXIII, p. 148; Parliamentary History,
Vol. X, pp. 799-811). This resolution was repeated in 1753
and 1762; see Journals of the House of
885
Commons, 1753, Vol. XXVI, p. 754; 1762, Vol. XXIX, pp.
206, 207. But, in spite of the attitude of the House,
unofficial reports of the proceedings of the House of
Commons were still published, and in 1771, during the
disturbances caused by John Wilkes, the claim of the House
to forbid the publication of its debates led to a struggle
between the Commons and the City of London which, although
it resulted in the committal to prison of the Lord Mayor and
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two alder. men, practically put an end to the attempts of
the House of Commons to prevent the publication of its
debates."
Much to the same effect it is stated in May’s Parliamentary
Practice: at page 54, the learned author, under the heading
" Right to control publication of Debates and Proceedings",
observes:
" Closely’ connected with the power to exclude strangers, so
as to obtain, when necessary, such privacy as may secure
freedom of debate, is the right of either House to prohibit
the publication of debates or proceedings. The publication
of the debates of either House has been repeatedly declared
to be a breach of privilege, and especially false and
perverted reports of them; and no doubt can exist that if
either House desire to withhold their proceedings from the
public, it is within the strictest limits of their
jurisdiction to do so, and to punish any violation of their
orders."
After tracing the history of the privilege, the practice
obtaining in modern times is described thus:
" The repeated orders made by the House forbidding the
publication of the debates and proceedings of the House, or
of any committee thereof, and of comments thereon, or on the
conduct of Members in the House, by newspapers, newsletters,
or otherwise, and directing the punishment of offenders
against such rules, have long since fallen into disuse.
Indeed, since 1909, the debates have been reported and
issued by an official reporting staff under the authority of
Mr. Speaker, and are sold to the public by Her Majesty’s
Stationery Office."
The same idea is repeated at page 56 as follows:-
886
" So long as the debates are correctly and faithfully
reported, however, the privilege which prohibits their
publication is waived."
At page 118, 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."
Then the following eight instance of misconduct, in
connection with the, publication of the debates which is
generally treated as a breach of privilege of the House are
given by the learned author :
(i) Publishing a false account of proceedings of the House
of Lords;
(ii) Publishing scandalous misrepresentation of what had
passed in either House or what had been said in debate;
(iii) Publishing gross or wilful misrepresentations of
particular Members, speeches;
(iv) Publishing under colour of a report of a Member’s
speech a gross libel on the character and conduct of another
Member;
(v) Suppressing speeches of particular Members
(vi) Publishing a proceeding which the House of Lords had
ordered to the expunged from the journals;
(vii) Publishing a libel on counsel appearing before a
committee under colour of a report of the proceedings of
such committee; and
(viii) Publishing a forged paper, publicly sold as His
Majesty’s speech to both Houses.
It would be seen from the instances that mala fides is a
necessary ingredient of the publication to attract the
doctrine of privilege and that the instances given are of
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the period between 1756 to 1893. One of the instances on
which strong emphasis is laid by the learned Solicitor
General is the-publishing of a proceeding which the House of
Lords bad ordered to be expunged from the Journals. Apart
from the fact that the instance in question relates to the
House of Lords, the Journal is not available for us to
ascertain
887
under what circumstances the publication was made Further
the instance was of the year 1801 and no other instances of
that kind appear to have occurred from 1801 to 1950. In the
circumstances, on the authority of May, it may be accepted
that the House of Lords asserted the privilege in 1801 when
its proceedings were published mala fide, though they were
expressly ordered to be expunged.
Cockburn, C. J., in Wasan v. Walter(1) forcibly pointed out
the irrelevance of the privilege claimed in the modern
democratic set up. At page 89, the learned Chief Justice
observed :
" It seems to us impossible to doubt that it is of paramount
public and national importance that the proceedings of the
houses of Parliament shall be communicated to the public,
who have the deepest interest in knowing what passes within
their walls, seeing that on what is there said and done, the
welfare of the community depends. Where would be our
confidence in the government of the country or in the
legislature by which our laws are framed, and to whose
charge the great interests of the country are committed,-
where would be our attachment to the Constitution under
which we live,-if the proceedings of the great council of
the realm were shrouded in secrecy and concealed from the
knowledge of the nation ? How could the communications
between the representatives of the people and their
constituents, which are so essential to the working of the
representative system, be usefully carried on, if the
constituencies were kept in ignorance of what their
representatives are doing? What would become of the right
of petitioning on all measures pending in Parliament, the
undoubted right of the subject, if the people are to be kept
in ignorance of what is passing ID either house? Can any
man bring himself to doubt that the publicity given in
modern times to what passes in Parliament is essential to
the maintenance of the relations subsisting between the
government, the legislature, and the country at large ? It
may, no doubt, be said that, while it may be necessary as a
matter of national interest that the
(1) (1868) L.R. 4 Q.B. 73.
888
proceedings of Parliament should in general be made public,
yet that debates in which the character of individuals is
brought into question ought to be suppressed. But to this,
in addition to the difficulty in which parties publishing
parliamentary reports would be placed, if this distinction
were to be enforced and every debate had to be critically
scanned to see whether it contained defamatory matter, it
may be further answered that there is perhaps no subject in
which the public have a deeper interest than in all that
relates to the conduct of public servants of the State,-no
subject of parliamentary discussion which more requires to
be made known than an inquiry relating to it".
At page 95, dealing with the contention based upon the
Standing Orders of both the Houses of Parliament prohibiting
the publication of the proceedings, the learned Chief
Justice proceeded to state as follows:
" The fact, no doubt, is, that each house of Parliament
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does, by its standing orders, prohibit the publication of
its debates. But, practically, each house not only permits,
but also sanctions and encourages, the publication of its
proceedings, and actually gives every facility to those who
report them. Individual members correct their speeches for
publication in Hansard or the public journals, and in every
debate reports of former speeches containing therein are
constantly referred to. Collectively, as well as
individually, the members of both houses would deplore as a
national misfortune the withholding their debates from the
country at large. Practically speaking, therefore, it is
idle to say that the publication of Parliamentary
proceedings is prohibited by Parliament. The standing
orders which prohibit it are obviously maintained only to
give to each house the control over the publication of its
proceedings, and the power of preventing or correcting any
abuse of the facility afforded."
I have given the said passages in extenso as they give
neatly and graphically not only the extent of the privilege
in modern times, but the reasons for and the process by
which the larger concept of the privilege has been gradually
reduced to its present form. These
889
are weighty observations and, if they were appropriate to
the conditions obtaining in the 19th century, they would be
more so in 1950, when the parliamentary system of government
was perfected in England.
Jennings in his book on " The British Constitution states at
page 82 thus:
" All this assumes, of course, that the House debates in
public. Government and Opposition speak to each other, but
for the education of the people. The criticisms brought
against the Government are the criticisms of ordinary
individuals; the answers of the Government are formally
answers to the Opposition, but substantially they are
replies to the questions raised in the factory, the railway
carriage and the office. The members of the House of
Commons were not elected for their special qualifications,
but because they supported the policies which the majority,
of their constituents were prepared to accept. They have no
authority except as representatives, and in order that their
representative character may be preserved they must debate
in public. Secret sessions were suited to the oligarchic
government of the eighteenth century. They are the negation
of democratic principles. No doubt there are exceptional
occasions when secrecy is justified."
This passage succinctly gives the principles underlying the
doctrine that in a democratic country, debates in Parliament
are public and there should not be any prohibition against
the publication of the said debates.
The extent of the privilege of the House of Commons in
regard to the publication of its proceedings may be stated
thus: In the seventeenth century, the House of Commons made
standing orders prohibiting the publication of its
proceedings. But that was a necessary precaution in that
critical period when the representatives of the people were
in conflict with the crown and they were careful that their
proceedings should not reach the ear of the Crown. In the
aristocratic eighteenth century, the opposition to
publication was founded not only on the fear of
misrepresentation,
112
890
but on impatience of the pressure of public opinion. But
gradually and imperceptibly, as a result of conflicts and
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compromises and as Parliamentary form of government became
perfect and broad based, not only publication was allowed
but actually encouraged by the House of Commons. 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. The said orders, though not expressly repealed
or modified, were no longer enforced in accordance with
their tenor; but were in effect modified by practice and
precedents. The stringent part of the orders had fallen
into disuse and in practice it was restricted to mala fide
publication of the proceedings. 1, therefore, hold that in
the year 1950, the House of Commons had no privilege to
prevent the publication of the correct add faithful reports
of its proceedings save those in the case of secret sessions
held under exceptional circumstances and had only a limited
privilege to prevent mala fide publication of garbled, un-
faithful or expunged reports of the proceedings.
It follows from my view, namely, that the petitioner’s
fundamental right under Art. 19(1) is preserved despite the
provisions of Art. 194(3) of the Constitution, that the
petitioner is entitled to succeed. I am further of the
opinion that even if Art. 194(3) of the Constitution
excludes the operation of Art. 19(1), the petitioner in the
circumstances of the present case would not be in a worse
position. That apart, the charge as disclosed either in the
notice served on the petitioner or in the enclosures annexed
thereto does not impute any mala fide intention to the
petitioner. The notice only says that the Committee of
Privileges, on the basis of the publication of the news item
in the " Searchlight ", found that a prima facie case of
breach of privilege has been made out against the
petitioner. The resolution enclosed therein indicates that
the petitioner committed a breach of privilege by printing
the expunged portion of the speech of Maheshwara Prasad
Narayan Singh and thereby published a perverted and
unfaithful report of the proceedings. Other documents
891
enclosed with the notice contained a motion moved in the
House by another member charging the petitioner for
publishing the expunged portion of the speech. The
petitioner in his petition states that till May 31, it was
not known to any member of the staff of the " Searchlight ",
including the petitioner, that any portion of s the debate
in question had been expunged from the official record of
the Assembly. Though in the official record of the
proceedings, portions of the speech reported have been
expunged, no order of the Speaker expunging any portions of
the speech made on May 30, has been produced. Admittedly
there was no order of the Speaker prohibiting the
publication of the expunged portion of the speech. In the
counter-affidavit filed by the respondents, they did not
allege any mala fides to the petitioner but they took their
stand on the fact that the Legislature had the privilege of
preventing the petitioner from publishing the expunged por-
tion of the speech. In the circumstances, neither the
notice nor the documents enclosed with the notice disclose
that the petitioner published the speech, including the
expunged portion mala fide, or even with the knowledge that
any portion of the speech was directed to be expunged. As I
have pointed out, the Legislature has the privilege of
preventing only mala fide publication of the proceedings of
the Legislature and, as in this case the petitioner is not
alleged to have done so, the Legislature has no power to
take any action in respect of the said publication.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 54
In the result, the petition is allowed. A Writ of
Prohibition will issue restraining the respondents from
proceeding against the petitioner for the alleged breach of
privilege by publishing in the issue of the " Searchlight ",
dated May 31, 1957, an account of the debate of the House
(Legislative Assembly, Bihar) of May 30, 1957.
ORDER
In view of the judgment of the majority, the petition is
dismissed. There will be no order as to costs.
892