Pandit M. S. M.

Sharma v/s Shri Sri Krishna Sinha

Citation: Pandit M. S. M. Sharma V. Shri Sri Krishna Sinha and Others - Date of
Judgment: 12th December, 1958 (AIR 1959 SC 395)

Bench:
1. Das, Sudhi Ranjan (CJI)
2. Bhagwati, Natwarlal H.
3. Sinha, Bhuveshwar P.
4. Subbarao, K.
5. Wanchoo, K.N.

Introduction Of Parties
M.S.M. Sharma, the petitioner, was a renowned journalist and editor of the English newspaper
‘Searchlight' which is published and circulated in the State of Bihar.
Mr. Krishna Sinha, the respondent was holding the post of ‘Chief Minister' of the State and the
Chairman of the Privileges Committee of the Bihar Legislative Assembly.

Factual Matrix
30th May, 1957: Maheshwar Prasad Narayan Sinha who is a member of Bihar Legislative
Assembly alleged the Chief Minister of being partial in the selection process of his Ministers,
transfers of public servants and involvement and in corrupt administrative practices. A reference
was made in his speech to the case of a District Judge who was only ‘transferred' contrary to the
advice of the Chief Justice of Patna High Court who recommended his discharge, and this was
solely due to the influence of Mahesh Prasad Sinha. Mr. Maheshwar also contended that Mr.
Mahesh's appointment as the Chairman of Bihar State Khadi Board was for th.e only purpose of
letting him stay in Patna where his residential accommodation is situated.

The Speaker of the Legislative Assembly replied to the contentions of Mr. Maheshwar by
stating that:
I have already ruled with reference to whatever has been said about Mahesh Babu that such
words would be expunged from the proceedings. But, whatever may be said with reference to the
Chairmanship of the State Khadi Board will remain in the proceedings and Honorable Member
has the right to speak on the matter."[1]

31st May, 1957: Though the statement was expunged by the Speaker of the Legislative
Assembly, the English daily, ‘Searchlight', published an article reporting the entire speech of Mr.
Maheshwar Prasad Narayan Sinha, including the expunged parts as well.

10th June, 1957: Mr. Nawal Kishore Sinha, who was a member of the Legislative Assembly
raised objection by way of notice in the Assembly on the conjecture of Breach of Privilege. The
said notice stated that:

Searchlight…published the entire speech of Mr. Maheshwar Prasad Naraya Sinha

containing all the references to Mr. Mahesh Mahesh Sinha which were ordered to be
expunged.
This notice was referred to the Privileges Committee.

18th August, 1958: The editor of Searchlight, herein the petitioner, was summoned by the
Secretary of the Legislative Assembly to appear before the Privilege Committee and reply as to
why an action against him shall not be taken for the Breach of Privilege.

Issues
 1. Whether the Constitution of India, under Article 194(3), empowers a State Legislative
Assembly to restrict any publication of a proceeding that has been witnessed by its
members or to prohibit the publication of the parts that has been directed to be
expunged?
 
2. Whether the said privilege under Article 194(3) have an upper hand over the Article 19(1)
(a) which grants a Fundamental Right of ‘free speech and expression' to every citizen of
India?

Contentions of The Parties

Petitioner: A writ petition was filed by the Petitioner in the Supreme Court under Article 32 of the
Constitution of India drawing contentions that suggests that notice served upon the Petitioner by
the Privileges Committee abridges his Right to Freedom of Speech enshrined under Article 19(1)
(a) of the Constitution of India.

Respondent: The respondent argued that the State Legislative Assembly can exercise similar
powers, privileges & immunities as the British Parliament's House of Commons when the
Constitution of India was enacted, i.e. 26th of January, 1950. Hence, the proceedings of the
house cannot be treated as an ordinary course of action and the permission to publish the
expunged parts can never be established.

Decision Majority: CJ Sudhi Ranjan Das

Dealing with the first issue, the court opined that there was no statute existent in the Legislature
of Bihar under - Entry 39, List II, Seventh Schedule, of the Constitution of India, related to the
powers, privileges and immunities of the House. Hence, all the Houses of the Legislative
Assembly of Bihar reserves the said powers, privileges and immunities as that of House of
Commons at the onset of the Constitution of India.

It was noted by the court that the House of Commons imposed restrictions on publication of its
proceedings since 1641. A standing order in this regard was issued stating that no member shall
communicate in print any speech or proceedings that took place in the House. The said Standing
Order was not amended or repealed, hence it stands in force.

The court concluded that at the time of the onset of the Constitution of India i.e. 26th January,
1950, the House of Commons reserved a right to impose the said restriction. As per this
observation, the court opined that the Legislative Assembly of Bihar also had the same powers
as that of the House of Commons as it had not enacted any statute in this regard.

The Petitioner contended that the ‘Right to freedom of speech and expression' is a Fundamental
Right under Article 19(1)(a) and hence the publication of a bona fide report shall not be treated
as illegal. Moreover, in case of a conflict between Article 19(1)(a) & Article 194(3), the former
shall prevail over the latter as it is a Fundamental Right. In support of the contention, the
petitioner submitted two arguments:

1. The provision of Article 194(3) is subjected to Article 19(1)(a).

The court rejected the argument backing up with a reasoning that as per the language of
Article 194, only clause (1) is subjected to other provisions of the Constitution and clause
(2) to (4) stands independent which suggests that the framers of Constitution did this on
purpose.
 
2. Article 194(3) infringes the Fundamental Right given under Article 19(1)(a).
As per Article 13 of the Constitution of India, if a legislation enacted by the Parliament or State
Legislative Assembly contravenes any provision of the Constitution, such legislation shall be
rendered void. The Court held that a law made by a State Legislature in pursuance of earlier part
of Article 194(3) will not be a law in exercise of constituent power, but will be one made in
exercise of its ordinary legislative powers. Consequently, if such a law takes away or abridges
any of the fundamental rights, it will contravene the provisions of Article 13 and it will be void.

Still, in cases of conflict, both Article 19(1)(a) & Article 194(3), both stand out to have equivalent
importance and one of them cannot be provided any privilege over the other. In cases of such a
conflict, the principle of ‘Harmonious Construction' shall adopted, relying upon which, Article
19(1)(a) stands general and Article 194(3) stands special.
Hence, the court deduced a conclusion that the notice by the Assembly stands valid and the
petition stands dismissed.

Descision: Dessent: Justice Subbarao

The dissenting opinion of Justice Subbarao quoted Gunupati Keshavram Reddy V. Nafisul
Hasan[2] and held that Article 194(3) was subject to Part III. However, in fairness, it must be
conceded that the aforesaid case was not a well-considered opinion on the subject.

Comments
It is important to bear in mind that the Court made no comment whatsoever on whether Article 21
would override privileges. The Court merely held that Article 19 (1)(a) would not override
privileges. It proceeded to examine the Article 21 argument on merits without clarifying the larger
question as to whether Article 21 was to apply to privileges as a matter of rule, even though
Fundamental Rights in general and Article 19 (1)(a) in specific, were found not to apply to and
override the privileges.

End-Notes:

1. M.S.M. Sharma V. Krishna Singh, available at https://indiankanoon.org/doc/944601/ (Last

visited on April 12th, 2020).
2. Gunupati Keshavram Reddy V. Nafisul Hasan (AIR 1954 SC 636), available at
https://indiankanoon.org/doc/528695/ (Last visited on April 13th, 2020).

CASE ANALYSIS
Case Summary and Outcome
The Supreme Court of India upheld the regulatory authority of a state legislative
assembly to regulate the publication of its debates or proceedings over the right to
free speech. M. Sharma published an address to the Bihar Legislative Assembly in its
entirety, claiming that his right to free speech protected this action, despite an order
of the Speaker to expunge certain portions of the address. The Court found that
Sharma’s actions did not directly fall under the free speech protections of Article 19
because it violated the authority reserved to the Assembly in Article 194 over the
publication of its proceedings.

Facts
Petitioner M. S. M. Sharma was a journalist and the editor of  “Searchlight”—one of
the well-known English daily newspapers having a wide circulation in Bihar.
Respondent Krishna Sinha was the “Chief Minister of Bihar and the Chairman of the
Privileges Committee of the Bihar Legislative Assembly.”  [p.1]

On May 30, 1957, Maheshwar Prasad Narayan Sinha, a member of the Bihar
Legislative Assembly delivered a speech on the floor of the Assembly described as
“one of the bitterest attacks against the way the Chief Minister was conducting the
administration of the State.” [p.2] He alleged that Mahesh Prasad Sinha guided the
Chief Minister in the selection of Ministers and the transfer of public servants, and
he also alleged several instances of encouragement of corruption by the Government.
[p.2] For instance, he referred to the case of a District Judge who was only
“transferred” and not “discharged” as per the advice of the Chief Justice of the High
Court of Bihar, because of the intervention of Mahesh Prasad Sinha. The member
also criticized the appointment of Mahesh Prasad Sinha to the post of Chairman of
Bihar State Khadi Board and alleged that it was made “to enable him to stay in Patna
(the capital of Bihar) where residential accommodation at Bailey road was procured
for him.” [p.2] Immediately thereafter, on a point of order being raised by member of
the Legislative Assembly, the Speaker stated:

“I have already ruled with reference to whatever has been said about
Mahesh Babu that such words would be expunged from the
proceedings. But, whatever may be said with reference to the Chairmanship of the
State Khadi Board will remain in the proceedings and the Honorable Member has the
right to speak on the matter.” [p. 2]
In spite of the remarks being expunged, on May 31, 1957, “Searchlight published a
report of the speech of Maheshwar Prasad Narayan Sinha.” [p.3] On June 10, 1957,
Nawal Kishore Sinha, a member of the Legislative Assembly gave notice to raise a
question of breach of privilege of the House in the Legislative Assembly. The notice
stated that “Searchlight…published the entire speech of Maheshwar Prasad Narayan
Sinha containing all the references to Mahesh Prasad Sinha which were ordered to be
expunged”. [p.5] Consequently, the Legislative Assembly referred the matter to the
Privileges Committee.

On August 18, 1958, a notice was served to the Petitioner calling upon him to show
cause establishing “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.” [p.8]

The Petitioner filed a writ petition under Article 32 of the Constitution in the
Supreme Court of India contending that the said notice and the proposed action of
the Privileges Committee violated his fundamental right to freedom of speech and
expression under Article 19(1)(a) and the protection of his personal liberty under
Article 21 of the Constitution of India. [p.10]

The Respondent, relying on Article 194(3) of the Constitution, contended that a State
Legislative Assembly “enjoys all powers, privileges and immunities enjoyed by the
House of Commons of the British Parliament at the time of commencement of the
Constitution of India (i.e., 26 January 1950).” [p. 11] Thus, “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 parts of speeches which had been
directed to be expunged.” [p.11] Consequently, such a publication is a clear breach of
the privilege of the Legislative Assembly and it is entitled to protect itself by calling
the offender to account.

Decision Overview
Chief Justice Sudhi Ranjan Das delivered the majority opinion of the Court.

The first issue before the Court was whether Article 194(3) of the Constitution of
India empowered a State Legislative Assembly “to prohibit entirely the publication of
the publicly seen and heard proceedings that took place in the Assembly or even
publication of that part of the proceedings which had been directed to be expunged”.
[p.20] The second issue before the Court was whether “such a privilege of the House
under Article 194(3) [would] prevail over the fundamental right [to free speech and
expression] under Article 19(1)(a) [of the Constitution].” [p.20]

The Court noted that the “Legislature of Bihar had not made any law with respect to
the powers, privileges and immunities of the House of Legislature as enumerated in
Entry 39 List II of the Seventh Schedule to the Constitution of India. Therefore, as
per Article 194(3), each House of ‘the Legislative Assembly of Bihar [enjoyed] the
powers, privileges and immunities enjoyed by the House of Commons at the time of
commencement of the Constitution (i.e. 26 January 1950)’.” [p.20] Hence, the Court
examined the privileges of the House of Commons at the time of commencement of
the Constitution.

The Court noted that the House of Commons had asserted the right to control and, if
necessary, to prohibit the publication of the debates and the proceedings since 1641.
In 1641, “the House of Commons of the Long Parliament framed standing order ‘that
no member shall either give a copy or publish in print anything that he shall speak in
the House’ and ‘that all the members of the House are enjoined to deliver out no copy
or notes of anything that is brought into the House, or that is propounded or agitated
in the House’.” [p.23] The aforementioned standing order had not been abrogated or
repealed and continued to remain in force. The Court also enumerated various other
resolutions passed by the House of Commons reaffirming its privilege to censor
publication of parliamentary debates and proceedings. [p.24-31] Thus, the Court
came to the conclusion that “the House of Commons had at the time of
commencement of the Constitution [i.e. 26 January 1950] the power or privilege of
prohibiting the publication of even a true and faithful report of the debates or
proceedings that [took] 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.” [p.32] Consequently, the Court held
that, as per Article 194(3) of the Constitution, the Bihar State Legislative Assembly
was to have the same powers, privileges and immunities as the House of
Commons until it enacted a law providing for the same. As a result, the Assembly
could validly prohibit the Petitioner from publishing expunged portions of the
speech.
The Petitioner contended that he had a fundamental right “to publish a true and
faithful report of the publicly heard and seen proceedings of Parliament or any State
Legislature including the portions of speeches directed to be expunged along with a
note that the portion has been directed to be so expunged” under Article 19(1)(a) of
the Constitution of India. [p.19] Further, in case of a conflict, the Petitioner
contended that Article 19(1)(a) would prevail over Article 194(3) of the Constitution.
Assuming that such a right to free speech vested in the Petitioner, the Court
examined the conflict between Article 194(3) and 19(1)(a) of the Constitution and
whose right would prevail (i.e. the Bihar Legislative Assembly or the Petitioner).
[p.32]

The Petitioner made two principal arguments for supporting the proposition that
Article 19(1)(a) of the Constitution prevailed over Article 194(3) of the Constitution.

First, the Petitioner contended that the provisions of Article 194(3) were subject to
Article 19(1)(a) of the Constitution. [p.32] The Court rejected this contention on the
ground that the language of Article 194 subjected only “clause (1) expressly to other
provisions of the Constitution”. [p.34] On the other hand, “clause (2) to (4) [of
Article 194] had not been stated to be so subject. [This] indicated that the
Constitutional makers did not intend to subject those clauses to other provisions of
the Constitution.” [p.34] Therefore, Article 194(3) was not subject to Article 19(1)(a)
of the Constitution. Hence, the Petitioner failed in contending that the privileges of
the Bihar Legislative Assembly were subject to his fundamental right to free speech
and expression.

Second, Petitioner contended that Article 194(3) “operates as an abridgement of his

fundamental right to free speech under Article 19(1)(a) of the Constitution”. [p.32] In
this regard, it is pertinent to note that, as per Article 13 of the Constitution, a law
made by the Parliament or State Legislative Assembly in its legislative capacity will
be rendered void if it conflicts with fundamental rights such as the right to free
speech and expression as stipulated in Part III of the Constitution. [p.36]
Furthermore, it must also be noted that Article 194(3) provides that “powers,
privileges and immunities of a House of Legislature of the State and of the members
and committees thereof shall be such as may from time to time be defined by the
Legislature by law (i.e law made in exercise of its legislative power) and that until
then they shall be those of the House of Commons of the Parliament of United
Kingdom and of its members and committees (i.e., constituent law meaning law that
forms part of the Constitution itself).” [p.36] The Court held that a law made by a
“State Legislature in pursuance of earlier part of Article 194(3) will not be a law in
exercise of constituent power, but will be one made in exercise of its ordinary
legislative powers. Consequently, if such a law takes away or abridges any of the
fundamental rights, it will contravene the provisions of Article 13 and it will be void.”
[p.36] However, the powers, privileges or immunities conferred on a Legislative
Assembly by the latter part of Article 194(3) would not be void even if they were
repugnant to fundamental rights because “Article 194(3) is part of the Constitution
and as supreme as Part III of the Constitution.” [p.36] In light of the conflict between
the Article 19(1)(a) and Article 194(3) of the Constitution, the Court held that the
“principle of harmonious construction must be adopted and so construed, the
provisions of Article 19(1)(a), which are general, must yield to Article 194(3) which
are special”. [p.37]
Thus, the Court came to the conclusion that notice and proposed action by the
Committee of Privileges of the Bihar Legislative Assembly was proper and hence
dismissed the petition.