PRIVILEGES OF LEGISLATURE

Article 194 is a verbatim reproduction of Art. 105. Therefore, the privileges of a House of a
State Legislature correspond with those of the Houses of Parliament. Accordingly, the discussion
held earlier on Parliamentary Privileges is fully relevant to the privileges of a State Legislature.
In fact, many cases cited earlier arose in the sphere of State Legislatures under Art. 194

• Freedom of speech:

Like Article 105(1), Article 194(1) specifically guarantees freedom of speech in the State
Legislature. This is to ensure that the elected representatives of the people are able to have their
full say on all issues being discussed in the legislature. The Allahabad High Court has held that
so long as a Legislator is detained under a valid detention order, he or she has no right to
participate in the session of the House and cannot consequently claim any of the rights or
privileges available to legislators in the House. 1

The freedom of speech is subject to the provisions of the Constitution subject to the restriction
that no discussion is to take place in a House regarding the conduct of a Supreme Court or a
High Court Judge in the discharge of his duties [Article 211].2 The rules and standing orders
relating to the procedure of a House may also curtail the freedom of speech within the House
[Art. 194(1)].

CASE LAW: The Karnataka High Court has ruled in Subbiah3 that breach of Art. 211 on the
floor of the House is a matter not for the court but for determination by the presiding officer of
the House. Two members of the Karnataka Legislative Assembly, espousing the cause of general
public filed a writ petition in the High Court alleging that a member of the Legislative Council
(respondent 2) had made derogatory remarks against the High Court Judges on the floor of the
House and, thus, violated Art. 211. The petitioners therefore requested the court to issue a writ
directing the Chairman of the Legislative Council (respondent 1) to produce the records of the
proceedings of the Council relating to the objectionable remarks and further requested the court
to quash the same. The High Court held that the matter was not actionable in the court, and,
therefore, it could not call for the records of the House.

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The Court pointed out that Article 212(1) immunizes the proceedings of a House to be
challenged on the ground of irregularity of procedure and it is not open to the court to issue a
notice to the presiding officer of the House when the proceeding in which it is issued is itself
outside the pale of determination by the courts. The question is whether a member has
contravened Art. 211 while speaking in the House is one for determination by the presiding
officer of the House. “Hence, the question of sending for the records and quashing any such
proceedings does not arise”.

Held: Following the Supreme Court’s opinion in Keshav Singh,4 the High Court also observed in
Subbiah: “If a Judge in the discharge of his duties passes an order or makes observations which
in the opinion of the House amounts to contempt, and the House proceeds to take action against
the Judge in that behalf, such action on the part of the House cannot be protected or justified by
any specific provision made by the latter part of Art. 194(3). The conduct of a Judge in relation
to the discharge of his duties cannot be the subject-matter of action in exercise of the powers and
privileges of the House”.

The proposition laid down by the Supreme Court in P.V. Narsimha Rao v. State, (CBI/SPE) 5 and
in Raja Ram Pal v. Speaker, Lok Sabha6 in relation to the members of Lok Sabha also applies to
the members of the State Legislature.

 Freedom of Publication

Like Art.105(2), Art.194(2) lays down that no person is to be liable to any proceedings in any
court in respect of the publication under the authority of a House of any report, paper, votes or
proceedings.

Article 361(A) immunizes from any Court action publication in a newspaper of a substantially
true report of proceedings in a House, unless the publication is proved to have been made with
malice. The same immunity applies to broadcasting.

CASE LAW: Dr, Jatish Chandra Ghosh v Hari Sadhan Mukherjee and Others 7, The appellant is
an elected member of the West Bengal Legislative Assembly. The appellant had an intention to

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AIR 1961 SC 613
ask certain questions in the assembly and therefore he gave the notice for the same. The
questions to be asked in the assembly were refused in compliance with the rules of procedure for
the conduct of the business in the assembly. But the appellant published those questions he was
not allowed to ask in the assembly in a local newspaper called JANAMAT.

The first respondent, who was then functioning as a Sub-Divisional Magistrate and because of
whose conduct the matter of questions arose, filed a complaint against the appellant and two
others, the editor and the printer and publisher of those questions.

The petition contained the fact that the appellant had made slanderous accusations against him
with an intention to be read by the members of the public. These accusations were false and the
appellant published them, having an intention of harming the reputation of the complainant. He
also alleged that publishing such false questions in the journal first requires prior permission by
the government in instituting the legal proceeding against the public servant.

Held: In this case, it was held that the provisions of Article 194 even though disallowed by the
speaker were a part of the proceedings of the house and publication for the same will not attract
any sections of the Indian Penal Code. He will not be prosecuted, as Article 194(1) not only
gives them freedom of speech but also give the right to ask questions and publish them in the
press.

 Power to make rules

Like Art. 118(1), Article 208(1) empowers each House of the State Legislature to make rules
for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its
business.8

• Law to define privileges [Article 194 (3)]

As regards "other privileges" Article194(3) originally provided that those would be "such as
may from time to time be defined by State Legislature by law." Until so defined these would 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".

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Thus, as and when a questioner to other privileges, the Courts were to determine, whether a
particular privilege was available to the House of Commons in England, its members and
committees at the commencement of the Constitution of India.

The Constitution (Forty-second Amendment) Act, 1976 amended Articles105 (3) and 194 (3)
deleting reference to the House of Commons. It provided that other privileges would be such as
were available at the commencement of Section 21 of the Constitution (Forty-second
Amendment) Act, 1976 and as may from time to time, be evolved by each House for itself.
Therefore, under the amended Articles, no legislation was required for laying down the other
privileges.

The Constitution (Forty-fourth Amendment) Act, 1978 again amendedArticles105(3)and

194(3).The amended Articles provide that the other privileges shall be such as may from time to
time be defined by Parliament or the State Legislature, as the case may be, by law. Until so
defined, these shall be those as were immediately before the coming into force of Section15 of
the Forty-fourth Amendment Act, 1978.

It thus follows that the question would be whether a particular privilege was available on the day
Section15 of the 44th Amendment came into force (i.e., 20-6-1979). The 44th Amendment has
thus restored Articles 105(3) and to their original status excluding reference to the House of
Commons at the question would be whether a particular privilege After all these changes, it may
be noticed, that other privileges shall be determined by referring to the law as it has been in the
context of English law.

Under Article 194(4), which is akin to Art. 105(4), 9

privileges are available not only to the
members of the Legislature but to all those who have a right to speak, or otherwise to participate,
in the proceedings of a House or any committee thereof, such as Ministers and the Advocate-
General of the State [Art. 177].

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  Right to punish for contempt of court

It is the right of every house of legislature punished members or non-members for contempt or
breach of privilege of the house it has been established in India that a house may punished not
only for the present contempt but also for the past contempt.10

A point of interest which arises in case of a State Legislature, but not Parliament, may be noted.
Suppose a newspaper in Bombay commits contempt of the U.P. Assembly by publishing some
material derogatory to it. Can the Assembly issue a warrant to enforce the presence of the Editor
before it to answer the charge of its contempt, Bombay being outside the territorial jurisdiction of
the U.P. Assembly?

CASE LAW: It has been held in Homi Mistry v. Nafisul Hasan,11 that the Assembly could do so
as no territorial limitation has been placed on the power conferred by Art. 194(3). The Union of
India is not formed of independent States surrendering part of their jurisdiction to the Centre and
reserving part of the jurisdiction to themselves. It is inconceivable that although the privilege
could be exercised against a citizen of India within the State, a citizen outside the State could
assail the dignity of the House with impunity

 Right to prohibit the publication of proceedings

The rule of procedure of the house of people empowers the chair to expunge any part of
proceedings of house.

CASE LAW: In M.S.M. Sharma v. Dr. Krishna Sinha,12 popularly known as light case the editor
of the weekly was punished for the contempt of the legislative assembly of the state of Bihar for
publishing those parts of the speech of a member which had been ordered to be expired from the
proceedings of the assembly.

The supreme court held the action taken against the editor and said that the house of commons in
England had, at the commencement of our constitution, the power of privilege of prohibiting the
publishing of even a true and faithful report of the debates or proceedings that took place within

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the house. The court said that “the effect in law of the order of the speaker to expunge a portion
of the speech of member might be as if that portion had not been spoken.”

It may be notice that even after insertion of article 361-A, this privilege still exists with the house
of legislature.

 Internal autonomy

Internal autonomy is conceded to each House of the State Legislature.

 The validity of any proceedings in the State Legislature cannot be questioned on the
ground of ‘any alleged irregularity of procedure’ [Article 212(1)].

CASE LAW: In M.S.M. Sharma v. Dr. Krishna Sinha 13 the Apex Court has observed that the
validity of the proceedings inside the Legislature of a State could not be called in question on the
ground that the procedure laid down by the law had not been strictly followed. Article 212 of the
Constitution is a complete answer to any such contention.

The court has observed: “No court can go into those questions which are within the special
jurisdiction of the Legislature itself, which has power to conduct its own business.”

Under Art.212(1), the immunity from judicial interference is confined to matters of irregularity
of procedure. No immunity can be claimed if the proceedings are held without jurisdiction, e.g.,
contrary to any mandatory constitutional or legal provision.14 If the proceedings in the
Legislature are attacked on the ground of illegality or unconstitutionality, judicial review thereof
is not barred by Art. 212.15

 No officer or member of the State Legislature in whom powers are vested by or under the
Constitution for regulating procedure, or the conduct of business, or for maintaining order
in the Legislature, is to be subject to the jurisdiction of any court in respect of the
exercise by him of those powers [Article 212(2)]. The operation of this constitutional
provision is illustrated by the following case.

CASE LAW: A member of the Kerala Legislative Assembly was prevented from entering the
assembly hall. The guard was acting under the Speaker’s order. The member brought an action
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against the guard who invoked Art. 212(2) and 194 to bar Court’s jurisdiction to take cognizance
of any incident which may have taken place within the Legislative Assembly.

Held: The High Court quashed the proceedings against the guard arguing that the persons
deployed by the Speaker for maintaining law and order in the Assembly fall within the purview
of Art. 212(2). The House and the Speaker can act only through these officers. As the Court
observed “An officer carrying out the orders of the Speaker within the precincts of the House is
protected by the provisions contained in the Constitution. Such actions are beyond the
cognizance of ordinary courts.” 16

Article 212(2), as is clear from its language, protects only exercise of powers vested in an officer
under the Constitution. It does not protect from challenge before the court exercise of any power
by such officer which is not vested in him under the Constitution.17

 SUSPENSION OF A MEMBER

Legislative history was made by the Tamil Nadu Assembly on Dec. 22, 1986, when it expelled 10
of its members (belonging to the opposition Party) from the House and declared their seats
vacant.18 These members had earlier burnt copies of the Constitution in public in the course of an
agitation. The resolution passed by the House stated that by their act the members had violated
the oath they had taken under Art. 188 of the Constitution, 19 and that by their conduct, they had
brought down the esteem and dignity of the Constitution as well as the House and its members as
their act was not in tune with the stature and standards expected of members of Legislative
Assembly (M.L.A.’s) and, therefore, the House considered them ineligible to be its members.

There is no doubt that a House has power of discipline over its members and also has power to
expel a member from the House rendering his seat vacant therein. 20 Members have been expelled
from Parliament and State Legislatures but for personal misconduct within the House and not for
political action. These members had committed an offence under the Prevention of Insults to
National honour Act, 1971, but it does not impose disqualification from membership as a
punishment. There is however a danger that the majority party in the House may invoke the
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power of expulsion of minority party members for political reasons. Such a step would be anti-
democratic. To avert such a danger, it is necessary to observe great caution, care and self-
discipline by the majority party in the Legislature in using such a power. Because of Art. 212, it
may be extremely difficult to challenge the exercise of such power in a court.21

The matter of expulsion of members was brought before the Madras High Court in K.
Anbazhagan v. Secy., T.N. Legislative Assembly.22 The High Court dismissed the writ petitions
filed by the expelled members challenging their expulsion from the Assembly. The court ruled
that the ground of expulsion of the members was that their conduct was considered to be
derogatory to the dignity of the Constitution as well as that of the Assembly and the members
were considered unfit to be members of the Assembly. The House of Commons has the power of
expulsion to punish a member in exercise of its disciplinary control over the members with a
view to see that such of the members who are unfit, in the opinion of the House, to continue to be
its members are expelled from the House. The House can exercise such a power for an action of
the member which the House considers to be a misconduct even though it was committed outside
the House. Accordingly, the State Assembly also enjoys such a power under Art. 194(3)

A House of the Legislature has power to suspend a member for the whole of its session. Such an
order automatically comes to an end when the House is prorogued for when the House is
prorogued, all pending business in the House lapses.23

Privileges and fundamental rights:

Part Ill of the Constitution contains fundamental rights wherein Article 19(I)(a) grants freedom
of speech to the citizens. It is subjected to reasonable restrictions. These restrictions are:

• Sovereignty and integrity of India should be maintained,

• Security of the states should be maintained,
• Public order should not be disturbed,
• Decency and morality should be maintained,
• Defamation should be avoided,
• Incitement to an offence should be avoided,

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 • Contempt of court should be avoided,
• Friendly relations with foreign states should be maintained.

Where on the other hand the members of parliament have been granted powers, privileges etc.
their powers or privileges are absolute unlike fundamental rights for the citizens.

The powers of the legislators are too wide such as they decide their own privileges, include
points which can breach the laid down privileges, and also decide the punishment for that breach.

Article 194(3) states that the legislature should from time to time define the laws or pass the laws
on the powers, privileges and immunities of the members of the parliament and members of the
legislative assembly.

CASE LAW: Gunupati Keshavram Reddy v. Nafisul Hasanand24

The U.P. Legislative Assembly issued a warrant against the Home Minister who was arrested
from his residence in Bombay on the ground of contempt of the house. The Home Minister under
Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article 22(2)
violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article 22(2).
He was not presented before the magistrate within 24hrs of his arrest or detention. Not presenting
him before the magistrate resulted in the violation of his fundamental right under Article 22(2).

 In this case, it was opined that Article 105 and Article 194 cannot supersede the
fundamental rights.

CASE LAW: MSM Sharma v. Sri Krishna Sinha 25

The facts of the case :- The petitioner is the editor of the English Daily newspaper of Patna. He
published a report on the proceedings of the Bihar Legislative Assembly and the reports were
said to be removed by the speaker.

The editor was presented before the Legislative Assembly to give reasons for the breach of
privilege committed by him. At first, he was held guilty for his conduct. Then, in an appeal, the
editor under Article 19 (1)(a) argued that he has a right to freedom of speech. But the Court
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state
of U.P AIR 1952
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AIR 1959 SC395
denied all the arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a
special provision. If at any time both of these articles come under any conflict the latter will
prevail over the former. As the general provision cannot overrule the effect of the special
provision.

It has also been suggested that if both Articles, Articles 19(1) (a) and 194, are in conflict, the rule
of Harmonious Construction should be applied.

Privileges and the Courts:

Article 143 confers the power on the President to consult the Supreme Court if at any time it
appears to the President that a question of fact or a law arises or may arise in future. Also, such
questions must be of public importance or it must be advantageous to seek the opinion of the
Supreme Court. And after such hearing, if the court thinks it relevant, it may give its opinion to
the President.

The house of parliament though have lot of powers, privileges and immunities but despite all
these advantages it cannot act or perform similar to a Court. The Courts are the one who
interprets the laws or acts passed by the parliament. For instance, if any offence is committed
even in the house of parliament the jurisdiction vests with the ordinary Courts.

CASE LAW: Keshava Singh v. Speaker Legislative Assembly

Keshava Singh, who was a non-legislative member of the assembly, printed and published a
pamphlet. Because of the printing and publishing of the pamphlet, the Speaker of the U.P.
Legislative assembly eriticized him for contempt and breach of the privilege of one of the
members. On the same day, Mr Keshava being present in the house committed another breach by
his conduct. As a result of his conducting the house, the speaker directed him to be imprisoned,
issued warrant for the same and ordered his detention in jail for 7 days. Under Article 226, a writ
of Habeas Corpus was applied in his petition. The petition claimed that the detention in jail is
illegal and is done with malafide intentions. The petition also stated that he was not given any
chance to explain or defend himself. The petition was heard by the 2 judges who gave them
interim bail. As a result of the decision in Keshava's case, the assembly passed a new resolution.
In this resolution, it was laid that the 2 judges entertained the writ filed by the petitioner and his
lawyer. In its resolution, the assembly issued a contempt notice to present the two judges and the
lawyer before the house and explain the reasons for their conduct. It also ordered that Keshava
should be taken in to custody. Under this, they moved petitions under 226 and filed a writ of
mandamus before the Allahabad High Court to set aside the resolution passed by the assembly. It
was held by the majority of the Supreme Court that the conduct of the 2 judges does not amount
to contempt. The Court further explained that if in the matters of privileges stated under Article
194(3) then the house will be considered as the sole and exclusive judge provided that it should
be stated in that. But if any such privilege is not mentioned in the article then it’s the Court who
has to decide upon it.