# [1965] 1 S.C.R. 413

- **Citation:** [1965] 1 S.C.R. 413
- **Court:** Supreme Court of India
- **Decided:** 1964-09-30
- **Case number:** SPECIAL REFERENCE NO. 1 OF 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1965-1-s-c-r-413-3330
- **Pages:** 129

## Headnote

A
413
SPECIAL REFERENCE NO. 1 OF 1964
September 30, 1964.
(P. B. G;.JENDRAGADKAR, C.J., A. K. SARKAR, K. SunA RAo,
K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH
B
AND N. R.AJAGOPALA AYYANGAR JJ.)
c
D
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G
H
ConJtitution of India, Art. 143(1)-Reference under, whether mUJt
relate to matterJ pertaining to President's powers and duties unlier t,he
ConJtltution-Refusa/ to answer when jurtifiable.
Co1'!3titution of· India, Art. 194(3)-Privileges of Hou>e of Commons conferred on Indian State Legislatures--Power to commit for contempt by conclwlve general warrant whether one of such prlvl/eg•:tPrivlleges whether 1ubject to provision. of the
Corutitution
and to
fundamental rights-Power to determine scope of privi/egeJ whether
rests entirely with legislatures to the exclusion of the CourtJ.
Constitution of India, Arts. 32, 226-Power of Supreme Court and
High Courts to entertain petitions challenging legality of committals for
contempt by State Legislatures-Power to
interfere where
breach of
fundamental rights alleged.
Constitution of India, Art. 211-Whether directory or mandatory-
/ts impact on Art. 194(3).
The Legislative Assembly of the State of Uttar Pradesh committed
one Keshav Singh, who was not one of its' members, to prison for its
contempt.
The warrant of committal did not contain the facts constituting the alleged contempt.
While . undergoing imprisonment for the
committal, Kcshav Singh through his Advocate moved a petition under
Art. 226 of the Constitution and s. 491 of the Code of Criminal Procedure, challenging his committal as being in breach of his fundamental
righ"'; he also prayed for interim bail.
·nie High
Court
(Lucknow
Bench) gave notice to the Government Counsel who accepted it on
behalf of all the respondents including the Legislative AMembly.
At
the time fixed for the hearing of the bail application the Government
Counsel did not appear.
Beg and Saghal JJ. who heard the application
ordered that Keshav Singh be released on bail pending the decision of
his petition under Art. 226.
The Legislative
Assembly found
thal
Keshav Singh and his Advocate in moving the High Court, and the two
Judges of the High Court in entertaining the petition and granting bail
had committed contempt of the Assembly, and passed a resolution that
all of them be produced before it in
custody.
The Judges and
the
Advocate thereupon· filed writ petitions before the High Court at Allahabad and a Full Bench of the High Court admitted their petitions and
ordered the stay of the execution of the Assembly's resolution against
them. The Assembly then passed a clarificatory resolution which modified
its earlier stand.
Instead of being produced in custody, the Judges and
the Advocate were asked to
appear
before
the
House
and
offer
•heir explanation.
At this stage the President of India made a
Reference under Art.
143(1) of the Constitution in which the whole dispute as to the constitutional relati0nship between the High Court and the State Legislative
including the question whether on the facts of tho case Keshav Singh
414
SUPREME COURT REPORTS
[1965] I S.C.R.
his Advocate, and the two Judges, by their respective acts, were guilty
A
of contempt of the State Legislature, wa< referred to the Supreme Court
for its opinion and report.
At the hearing of the Reference a preliminary objection as to the
competency of the Reference was raised on behalf of the Advocate·
Gener.I of Bihar, on the ground that it did not relate to any of the
matters covered by the President's powers and duties Wlder the Con·
slitution. It was also urged that even if the Reference was competent,
B
lhe Court should not answer it as it was not obliged to do so, and the
answers given by it would not help the !'resident in solving any of the
<lilficulties with which he might be faced in di9Charging his duties. The
Court did not accepL these contentions and proueded to hear the par·
ties which fell, broadly, into two groups-those supporting the Assembly
.and thooe supporting the High Court.

## Text

_Characters 0–39,959 of 354,340. This is a partial read: ask again with offset=39959 for what follows._

A
413
SPECIAL REFERENCE NO. 1 OF 1964
September 30, 1964.
(P. B. G;.JENDRAGADKAR, C.J., A. K. SARKAR, K. SunA RAo,
K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH
B
AND N. R.AJAGOPALA AYYANGAR JJ.)
c
D
E
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G
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ConJtitution of India, Art. 143(1)-Reference under, whether mUJt
relate to matterJ pertaining to President's powers and duties unlier t,he
ConJtltution-Refusa/ to answer when jurtifiable.
Co1'!3titution of· India, Art. 194(3)-Privileges of Hou>e of Commons conferred on Indian State Legislatures--Power to commit for contempt by conclwlve general warrant whether one of such prlvl/eg•:tPrivlleges whether 1ubject to provision. of the
Corutitution
and to
fundamental rights-Power to determine scope of privi/egeJ whether
rests entirely with legislatures to the exclusion of the CourtJ.
Constitution of India, Arts. 32, 226-Power of Supreme Court and
High Courts to entertain petitions challenging legality of committals for
contempt by State Legislatures-Power to
interfere where
breach of
fundamental rights alleged.
Constitution of India, Art. 211-Whether directory or mandatory-
/ts impact on Art. 194(3).
The Legislative Assembly of the State of Uttar Pradesh committed
one Keshav Singh, who was not one of its' members, to prison for its
contempt.
The warrant of committal did not contain the facts constituting the alleged contempt.
While . undergoing imprisonment for the
committal, Kcshav Singh through his Advocate moved a petition under
Art. 226 of the Constitution and s. 491 of the Code of Criminal Procedure, challenging his committal as being in breach of his fundamental
righ"'; he also prayed for interim bail.
·nie High
Court
(Lucknow
Bench) gave notice to the Government Counsel who accepted it on
behalf of all the respondents including the Legislative AMembly.
At
the time fixed for the hearing of the bail application the Government
Counsel did not appear.
Beg and Saghal JJ. who heard the application
ordered that Keshav Singh be released on bail pending the decision of
his petition under Art. 226.
The Legislative
Assembly found
thal
Keshav Singh and his Advocate in moving the High Court, and the two
Judges of the High Court in entertaining the petition and granting bail
had committed contempt of the Assembly, and passed a resolution that
all of them be produced before it in
custody.
The Judges and
the
Advocate thereupon· filed writ petitions before the High Court at Allahabad and a Full Bench of the High Court admitted their petitions and
ordered the stay of the execution of the Assembly's resolution against
them. The Assembly then passed a clarificatory resolution which modified
its earlier stand.
Instead of being produced in custody, the Judges and
the Advocate were asked to
appear
before
the
House
and
offer
•heir explanation.
At this stage the President of India made a
Reference under Art.
143(1) of the Constitution in which the whole dispute as to the constitutional relati0nship between the High Court and the State Legislative
including the question whether on the facts of tho case Keshav Singh
414
SUPREME COURT REPORTS
[1965] I S.C.R.
his Advocate, and the two Judges, by their respective acts, were guilty
A
of contempt of the State Legislature, wa< referred to the Supreme Court
for its opinion and report.
At the hearing of the Reference a preliminary objection as to the
competency of the Reference was raised on behalf of the Advocate·
Gener.I of Bihar, on the ground that it did not relate to any of the
matters covered by the President's powers and duties Wlder the Con·
slitution. It was also urged that even if the Reference was competent,
B
lhe Court should not answer it as it was not obliged to do so, and the
answers given by it would not help the !'resident in solving any of the
<lilficulties with which he might be faced in di9Charging his duties. The
Court did not accepL these contentions and proueded to hear the par·
ties which fell, broadly, into two groups-those supporting the Assembly
.and thooe supporting the High Court.
On behalf of the As&embly it was urged
that by
virtue of Art.
C
194(3) of the Constitution all the powers, privileges, and immunities
<>f the House of Commons of the United Kingdom had been conferred
on it.
It was the sole judge of its privileges and the Courts had no
jurisdiction to interfere with their exercise.
In the alternative, it was
coolended that Courts in England never innerfered with a committal
by the House of Commons for contempt when the committal was by a
general ¥.'arrant. i.e., a warrant which did not state the facts constituting
the contempt, and. therefore Courts in India were also precluded from
D
examining the legality of the general warrants of the Slate Legislatures.
The proceedings in the High Court in the present case were, theroiore,
in contempt of the legislature.
Those supporting the stand taken by the High Court urged that the
Legi•latureo received the powers of the House of Common• subject to
provisioas of the Constitution and to the fundamental rights, that the
power to commit by general warrant was not one of the privileges of
E
the Howe of Commom, that by vinue of ArtielN 226 and 32, the
citizen had the right to move the Court• when hi• fundamental rights
were contravened, and that because of the provisions in Art. 211, the
Legislature was precluded from taking any action against the Judges.
HELD: (Per P. B. Gajendragadkar C. J., K. Subba Rao, K. N.
Wanchoo, M. Hidayatullab, l. C. Shah and N. Rajagopala Ayyangar,
JJ.)-The terms of Art. 143(1) are very wide and all that they require
F
is that the President should be satisfied that the questions to be referred
are of such a nature and of such public importance that it would be
expedient to obtain the Supreme C'.ourt's opinion on them.
The Presi·
dent's order making the present Reference showed that he wu so satisfied. and therefore the Reference wa' competent.
The argument that
a Reference under Art. 143( I) could only be on matters directly related to the President's powers and duties under the Constitution was
miscooceiYed. (431 E-P; 432 B-P].
G
Earlier References made by the Pre<ident under Art. 143(1) showed
no uniform pattern and that was consistent with the broad and wide
words uocd in Art 143(1). (433 C-D].
In rt: The Delhi Laws Act, 1912, (1951] S.C.lt. 747, In rt: The
Kora/a Educasion Bill, 1957, (1959] S.C.R. 995, In re: Btrubarl Union
le ExchanRe of Enclaves. (1960] 3 S.C.R. 250 and In " : Sea CllStoms
Act, (1964] 3 S.C.R. 787, referred to.
H
It is not obligatory on the Supreme Court to answer a Reference
under Art. 143(1 )-the word u.•ed in that Article being 'may', in COD·
trast to the word 'shall' used in Art. 143(2). Refusal to make a report
_,
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SPECIAL REFERENCE
415
answering tho questions referred would however be justified only for
sufficient and satisfactory reasons e.g., the questions referred being Of a
purely socio-oconomic or .political character
with
no
constitutional
significance at all.
The present Reference .raised questions of grave
constitutional importance and the answers given by the Court could help
the Prcoident to advise the Union and State Goyernments to take
sujta'1le legislative or executive action. It was therefore the duty of the
court to answer it. (434 B-D; 433 G-H).
The advisory opinion rendered by the Co~rt in the present Reference
proceedings was not adjudication properly so-called, and would bind na
partiea as such. [446 H; 447 AJ.
(ii) The State Legislatures in India could not by virtue of Art.
194(3) claim to. be the sole judges of their powers and privileges to the
exclusion of the courts.
Their po,vers and privileges were to be found
in Art. 194(3) alone and nowhere else, and the power to interpret
that Article lay under the scheme of the Indian Constitution, exclusively
with the Judiciary of this country.
(Scheme of the Constitution discussed).
[444 G-H; 446 G-H].
It was not the intention of the Constitution to perpetuate in India
the 'dualism' that rudely disturbed public life in England during the
16th, 17th and 18th centuries.
The Constitution-makers were aware
of the several unhappy situations that arose there as a result of the conflict between the Judica.ture and the Houses of Parliamen.t. and the provisions of Arts. 226, 32, 208, 212(1) and 211 (examined by the Court)
showed that the intention
was to
avoid
such
a
conflict
in
this
country. [-454 A-B; 455 C-E].
ArticJc 211 which provides that the Legislature..<; could not discuss
the conduct of the Judge in the discharge of his duties, was mandatory.
[457 G-Hl.
State of U. P. v. Manbod/lan Lal Srivastava, [1958] S.C.R. 533 and
Montreal Street Railway Company v. Normandin, L. R. [1917] A.C.
170. referred to.
(iii) Although Art. 194(3) has not been
made
expressly .subject
to the provisions of the Constitution, it \vould be unreasonable 1n construing it to ignore the other provisions, if for valid reasons they were
found to be relevant and applicable.
Therefore wherever it appeared
that there was a conflict between the provisions of Art. 194(3) and the
provisions relating to fundamental rights, an attempt had to be made
to resolve the said conflict by the adoption of the rule of harmonious
construction as was done in Shar1na's case. [443 C-E].
Pandit M. S. M. Sharma v. Slzri Sri
Krishna
Sinha
&:
Others,
[1959] Supp. J S.C.R. 806.
G
(iv) In Shanmis case a majority of this Court held,
Art. 21 was applicable to the contents of Art. 194(3)
19(1) was not. The minority view was that Art. 194(3)
all the fundamental rights. [ 45 J B-C].
in terms, that
though
Art.
\Vas subject to
H
The majority in Sharma's case cannot be said to have held that Art.
194(3) was independent of all the fundamental rights for the simple
reason that it was held that Art. 21 was applicable, although on the
facts of the case its provisions were found not to have been C?ntraveoed.
The petitioner in that case had not raised at alI the general issue as to
the applicability and relevance to Art. 194(3) of all the fundamental
rights in Part III, and therefore it was unnecessary for the Cou.rt · t~>
discuss and decide that general issue.
His claim \Vas based on the a~plic.-.·.
416
SUPREME COURT
REPORTS
[ 1965] I S.C.R.
ability of two Articles only i.e., Articles 21 and 19(1)(a). The Court
held that the former was applicable and the latter was not.
This mUSI
therefore be taken to ha»e been settled in Sharma's case. (451 C-F).
But Sharma's case cannot be said to have settled :he issue whether
Art. 22(2) was applicable to Art. 194(3) or not.
(Observations of the
majority therein as to the correctness of the decision in Reddy's c~e
which was decided on the basis that Art. 22(2) was applicable, held
to be obiter). (452 D-E).
Pandit M. S. M. Sharma v. Shri Sri
Krishna Sinha
&
OtherJ,
I 1959) Supp. I S.C.R. 806 and Gunupati Keshavram Reddy v. Nafisul
/Iman and the State of U.P., A.I.R. 1954 S.C. 636, discussed.
(v) l'he view taken in Shar1na's case that the
laws
defining
the
powers and privileges of the legislatures under the first part of Art.
194(3) would be subject lo Art. 13 and therefore to the fundamental
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rights, did not require reconsideration. [453 G].
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Anantha Krishnan v. State of Madras, A.J.R. 1952 Mad. 395, considered.
(vi) The first part of Art. 194(3) empowers the Stale Legislatures
10 define by law 1heir O\vn po\\'ers, privileges and immunities.
The
second part of the Article says that till they define their powers etc. in
the above manner, their powers, privileges and immunities will be those
of the Brith~h House of Commons.
The second part was obviously inD
1ended to confer for the interim period till laws were made under the
first part, thc..;e incidental privileges and immunitie.'i which everv Legi5·
laturc musti possess in order that it may be able to function effectively.
(442 C-E].
The power-. of the House of Commons conferred by this clause are
those which were still in existence
at the commencement of the Con·
atitution l.t., 26th January, 1950 and not those which had fallen into
desuetude or the claim in respect of which had been given up. Further,
E
only those powers can he deemed to have been conferred which were
not only clnimed by the House of Commons but also recognised by tho
British Cour:s. (442 F-H].
(vii) The claim that all the powers of the British HOU5e of Commons became vested in the Indian Legislatures by virtue of Art. 194(3)
cannot be accepted in its entirety for there are many powers of the
House of Commons-such as right of access to the sovereign, passing
F
acts of attainder, impeachment, determining its own Constitution etc.-
which cannot be possibly exercised by the
Indian
Legislatures. (448
D-GJ.
May'1 Parlia1ntntary Practice, 16th Edn. p. 86, referred to.
(viii) Art. 194(3) did not confer on the Indian State Legislat•res
the right to commit for contempt by a general warrant which could
not be examined for its validity by courts in habtas corpus proceedings.
G
The right claimed by the House of Commons not to have its general
warrants examined in hahta!; corpus proceedings, was based on the con·
5idcration that the I-louse of Commons Vias in the position of a superior
court of record and had the right like other superior courts of r~rd
to issue a general warrant for the commitment of persons found gwlty
,,f contempt.
There was a convention in En~land whereby the general
¥.:arrants committing. for contempt issued by a superior court of record
were not examined by other courts. It was on that ground and DOI on the
H
,round of privilege that the general warrants issued by the House of
Commons were treated as beyond scrutiny by the courts.
(482 B-D;
496 FJ.
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SPECIAL REFERENCE
417
May's Parliamentary Practice, 16th &In. relied on.
Ashby v. White, L.J, ( 1701-05) 714, Earl of Shaftesbury's ca.<c,
86 E.R. "/92, Bradlaugh v. Gossett, L.R. XJI Q.B.D. 271, 12 State Tr.
822, Sir Francis Burdett, Abbott, 104 E.R. 501, Stockdale v. llan.rnrd,
112 E.R. 1112, Ashby v. Wlu'te and Others, 92 E.R. 126, R. v. Paty &
others, 92 E.R. 232, Murray's case, 95 E.R. 629, Brass Crosby, 95 E.R.
1005, Burdett v. Abbott 3 E.R. 1289, Sheriff of Middlesex, 113 E.R.
419 and Howard v. Gossett, 116 E.R. 139, discussed and relied on.
Bradlaugh v. Gossett, L.R. XII Q.B.D. 271, held not applicable.
Speaker of the Legislative Assembly of Victoria v.
Hugh
Glass,
(1869-71) III L.R., P.C. 560, Fielding and Others· v. Thomas, 1896,
L.R., A.C., 600, The Queen v. Richardf, 92 C.L.R.
157
and
Dill v.
Murphy, (1864) I Moo. P.C.
(N.S.) 487 (15 E.R. 784), not followed.
Observations of Gwyer C.J., in Central Provinces and Berar Act
No. XIV of 1938 [1939J · F.C.R. 18 to the effect that decisions in re•-
pect of' other Constitutions could not be safely applied even \Vhen the
provisions interpreted are similar, relied on.
Observations of Parker J, in re: Hun(s case [1959J · 1 Q.B.D.
378, referred to as indicating that even in regard to a commitment for
contempt by a superior court of record, the court exercising its jurisrliction over a petition filed for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the
warrant for commitment was general or unspeaking.
The In<lian Siate Legislaturr:s were not at any time in their history,
either under the Constitution Act, 1935. or under the Indian Jndcpendence Act, 1947, intended to be courts of record.
The legal fiction in
Art. 194(3) could not transfer the history of England to India and
confer on the Indian State Legislatures the status of superior courts of
record.
Thus the very basis on which the English Courts agreed to
treat a general warrant issued by the House of ('ommons on the footing
that it \\!as a warrant issued by a superior court of record, wa~ ahsent
in their case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general
warrant
which the House of Commons, by agreement, was deemed to po•sess,
became vested in the Indian Legislatures.
On this view of the matter
the claim made by the Uttar Pradesh Assembly had to be rejcctod.
[4!>2 A-BJ.
(ix) Even if the power to commit by non-examinable general warrant were treated as forming an integral oart of the privileges of the
House of Commons it would not follow that the Indian State Legislatures could exercise that power by virtue of Art. 194(3). [495-HJ.
The very existence of the powers of the Courts under Art. 226 and
32 necessarily implies a right in the citizen to approach the High Court
or the Supreme Court for the protection of his
fundamental
righ~•.
(The present dispute was really between a citizen and the Legislature
and not one between the High Court and the Legislature). [494 A-BJ.
Tf a citizen moved this court and complained that his fundamental
right under Art. 21 [held to be applicable to Art. 194(3) in Sharma'.'
c...,) or any other applicable right, had been contravened, it would
plainly be the duty of this Court to examine the merits of the said contention.
It would be no answer in such a case to say that the warrant
issued against the citizen was a general warrant and a general warrant
mll.'lt stop all further judicial enquiry and scrutiny.
The impact of the
418
SUPREME COURT REPORTS
(1965] I S.C.R.
fun<Limental right conferred on Indian citizen hy Ari. 32 on the conA
st ruction of the I alter part of Art. 194 ( 3) was decisively against the
view that a power or privilege could be clai1ncd by the House though
it may he inconsistent with Art. 21.
In this connection it \Vas relevant
to rccftll that the rules for regulating the procedure of the House \Vere
subject to the provision of the Constitution under An.
208(1).
[493
D-E].
Observ~tions of Simonds J., in In re :
Parli11111c11ta.~.r Prii.:i/egcs A,·1.
B
1770, [ 1958] A.C. 331 and Reso/11tio11 of the Houst of Lords,
C.J.
1702-04, pp. 555, 560, (Cited in May 16th Edn. p. 47), referred to.
It \vould be strange if the House which v.·as incompetent because or
Art. 211 to discuss the conduct of a Judge in the discharge of his dutit.~.
shou!d have the power to summon him in cuStody for alleged contempr
committed in discharge of his duties.
If the claim of the House were
upheld it would mean that the House could issue a general warrant
C
against a Judge and no judicial scrutiny could be held
jg
respect
ol
the validity of such a \varrant.
This would pul the h.isic concept of
judicill independence into grave jeopardy. [493 E-HJ.
Jt Y.'as also doubtful whether the power to is.c;ue a general up-speaking warrant was C-Onsistcnt with s. 554(2)(b) and s. 555 of the C-Odc
of Criminal Procedure [496 E-FJ.
Section 30 of the Advocates Act 1961, confers on all Advocates, the
D
statutory right to practice in all courts, including the Supreme (',ouri,
before any Tribunal or person legally authorised to take evidence, and
before any other authority or person before whom such Advocate is by
or under any law for the time being in force entitled to prac1icc.
Section 14 of the Har Councils Act recognises a similar right.
Just as the
rights of lhc Judicalure to deal v.·ith 1na11crs before them under Art. 226
or An. 32 cannot be subjected to the powers and
priviJcges
of the
House under Art. 194(3), so the rights of the
citizen
to
move
the
E
Judicature and the right of the Advocates to assist that process must
remain uncon1rolled by Art. 194(3),
That is one integrated scheme
for protecting the fundamental rights and for sustaining the rule of law
in this country.
lbereforc the right to commh by a conclusive general
\Varrant which the State Assembly clai1ned to he an integral part of its
po\vers or privileges was inconsistent with the material provisions of the
Conslitution and could not be deemed to have been included under the
latter part of Art 194(3). (495 E-H].
F
The power to con1mit by gen1.;ral warrant was moreover not essential for the effective functioning of a House of Legislature. The American C.ongress. had been functioning
effectively
\i.ri1hout
such
power.
[497 B-EJ,
In India, there are 14 State Legislatures in addition to the Houses
or Parliament.
If the power claimed by the U.P. Assembly were conceded it is not difficult to imagine that its exercise may lead to anomaG
Jous situations as \\·hen a member of one Legislature is committed for
contempt by a general warrant issued ;y another Legislature on account
of a speech made by him in his own LcGislalure. [497 E-FJ.
(<) It was open to Ke"hav Singh in his petition under Art. 226 to
implead the House on the ground that his commitment \Yas based on
the order passed by the House, and in that sense the House was responsible for, and had C-Onlrol over his commitment. [496 B-CJ.
JI
The King v.
The Earl of Crtwe Ex parte Sekgome.
[1910] 2
K.B.D. 576 and Tht Kini! v. Secretary of State for Home Affairs Ex
part• O'britn, [1923] 2 K.B.D. 361, referred to.
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.SPECIAL REFERENCE
419
(xi) Although in England parties who stand committed for contempt by the House of Commons are not admitted to bail by courts,
the position in India is different. If Art. 226 confers jurudiction on the
court to deal with the validity of the order of commitment even though
the commitment has been ordered by the House, it follows
that the
court has jurisdiction to make an interim order
in such
proceedings.
[498 F-HJ.
State of Orissa v. Madan Gopal Ru11gta and others, [1952] S.C.R.
28 and Maxwell on Interpr~tation of Statutes, 11th Edn. p. 350, relied
on.
Lala Jairam Das & others and King Emperor, 72 I.A. 120, held
inapplicable.
(xii) On the 'facts of the case the High Court was competent to
entertain the petition of Keshav Singh and to grant him bail pending
disposal of his petition.
There was no contempt Of the U.P. Assembly
committed by Keshav Singh or his Advocate in ;\noving the app1ication
under Art. 226, or by the High Court in entertaining the said petition
:md granting bail.
It was not competent for the Legislative Assembly
to direct the production of the two Hon'ble Judges and the Advocate
hcfore it in custody or to call for their explanation for their conduct.
It was competent for the Full Bench of the Allahabad High Court to
entertain and deal with the petitions of the said two Hon'ble Judges and
the Advocate, and to pass interim orders restraining the Speaker of the
U .P. A"embly and other respondents to the said petitions from impl&-
menting the aforesaid direction of the Assembly.
A Judge of a High
Court who entertains or deals with a petition challenging any order
or decision of a Legislature imposing any penalty
on
the
petitioner
(who is not a member of the Legislature) or issuing any process against
the petitioner for its contempt (the alleged contempt having been comnlitted outside the four-walls of the House), or for the infringement of
iL'> privileges and immun"ities, or who passes any order on such petition,
does not commit any contempt of the said Legislature, and
the said
Legislature is not competent to take proceedings against such a Judge
in the exercise and enforcement of its powers, privileges and immunities.
[502 A; 503 C].
(xiii) It is necessary to remember that the status, dignity and importance of the two institutions, the Legislature and the Judicature. are
derived
primarily from
the
status,
dignity
and
importance of
the respective causes
that are
assigned
to their
charge
by
the
Constitution.
These two bodies as well as the executive which is another important constituent of a democratic State, must function not in
antinomy nor in a spirit of hostility, but rationally, harmonioualy and
in a spirit of understanding within their respective spheres, for such
harmonious working of the three constituents of the democratic State
alone will help the peaceful development', growth and stabilintion of the
democratic way of life in this Country, [447 D-B].
(xiv) The power to punish for contempt large as it is, must always
be exercised cautiously, wisely and with circumspection..
Frequent or
indiscriminate use of this priwer in anger or irritatlon would not help to
•ustain the dignity of the court, but may sometimes affei:t it adversely.
Wi.se Judges never forget that the best way to sustain the dignity and
status of their office is to deserve respect from the public at large by
the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which
they observe in their judicial conduct.
We venture to think that what
is true of the Judicature is equally true of the Legislature. [501 F-G].
420
SUPREME COURT
REPORTS
[1965) I S.C.R.
Observations of Lord Atkin in Andre
Paul v. Allorney General of
A
Trinidad, A.LR. 1936, P.C. 141, referred to.
l'er Sarkar J. (i) It is undoubtedly for the Courts to inlerpret the
Ccnstituti0n and therefore Art. 194 ( 3). It follows that when a question
ari'iCS in this Country as to wheth-zr the House of Commons po&SCSiCd
a panicuJar privilege at the commencement of the Constitution,
that
questioo must be settled, and settled only by the courts of law.
There
is no scope of the dreaded 'dualism' appearing here, that is, courts
B
cntenng into a controversy v.•irh a Housl! of a Legislature as to what its
privileges are. (509 A-BJ.
·
(ii) The words appearing in Ari. 194(3) ·arc "the powers, privileges
and immunities of a House ...... shall be those of the House of CommoI\'i."
One cannot imagine more plain language than this.
That lan-
~uage can only have one meaning and that is that it was intended to
confer on the State legislatures the po\\.'Crs, privileges and immunities
C
""'hic:h the House of Commons in England had.
There is no occasion
here for astuteness in denying "·ord"' c.heir plain meaning by professing
allegiance 10 a supposed theory of divi,ion of powers. (511 A-BJ.
Brad/aug/r v. Gossett, ( 1884) 12 Q.B.0.271, /lurdetl v. Ahbotl. (1811)
14 East I, In re: Delhi Laws, [1951] S.C.R. 747. Pt. M.S.M. Sharma v.
Sliri Sri Krishna Sinha. ( 1959) Supp. 1 S.C.R. 806, Speaker of 1he Lc11i<-
/a1ive Assembly of Victoria v. Glass (1871) L.R. 3.
P.C.
App.
560
Quu11 v. Richards, 92 C.L.R. 157, Queen v. Richards, 91
C.L.R. 171
D
and Fielding v. Thomas, (1896] A.C. 660, referred to.
(iii) The power to commit by a general warrant with 1he consequent
deprivation of the jurisdiction of the courts \vas, one of the privileges of
the House of Commons.
That privilege was possessed hy the U.P. Assembly by virtue of Art. 194(3) of the Constilulion. (524 C-D).
There is no authority to show that the House of Commons· possessed
the powers to commit by a general warrant hccause ii was a superior
E
court of record.
Neither the history oi the House, nor the judgments in
English cases support that conteotion.
The courts only treated the House
'a.• entitled to the same respect as a superior court.
They did not say that
the House was a superior court. (513 B-C, 522 BJ.
May's Parliamentary Practice, 16th Edn. Potter's Outlines of Legal
lllslory, (1958 Edn.) Anson's Law of lhc Constitution. 6th Edn. Vol. I,
referred to.
F
Bradlaugh v. Cossell, (1884) 12 Q.B.D. 271 Burdell v. Abboll, 5
now 165. Sl1uif/ of Middlesex. ( 1840) 11 A & E 272. Stockdale v.
Ht1T1Sard, (1839) Y AD & E! and Howard v. Gosscll, (1874) IO Q.B.
359. relied on.
It is fallacious to say that the right to comn1it hy general v.·3rrant
posses.sed by the- House of Commons springs from son1e rule of cornily
of courts, or of pre.'iump1ive evidence, or from an agreement between
G
court!\ of Jaw and the House. or lastly, from some concession!\ nlade by
the former to the latter. [522 E-F].
All privileges of the House of Commons arc based on law.
That law
i~ known as Ll'X Parliam~nti. That la...,· like any other law is a IJw of the
land which courts are entil!ed tr. adminisrer. (522 F-GJ.
It is not for us to start new idc~ about privileges of the Hou'\C of
Commons, ideas which hnd not ever bcen'imagincd in England. Researches
H
into the period when these privileges \Ycre taking: shape c.1n afford
no answer to their contents and nature in 1950. (523 G-H; 524
R-C).
SPECIAL REFERENCE
421
A
Writers of undoubted authority as well as certain recent decisions of
B
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D
E
F
G
H
the Judicial Committee have treated the power to commit by a conclusive
general warrant as a matter .of privileae of the House and not as a ri&ht
possessed by it as a superior court. [515 G-H].
May's Parliamentary Practice, 16th &In. Cases on Con~titutional Law
by Keir and Lawson, Halsbury's Law's of England, Vol. 28, 467, Dicey's
Constitutional Law, 10th &In., referred to.
Speaker of the Legislative Assembly of Victoria v. Glass, Fielding v.
Thomas, and Sheriff of Middlesex, relied on.
(iv) Tuer! (le.iisions of the Judicial Committee may not be binding on
Indian courts but· they have high persuasive value, unless shown to be
wrong.
The question 4s whether the House of Commons had a certain
privilege. If judicial notice of the privilege has to be taken, then under
s. 57 of the Evidence Act, a reference to the authorised law reports of
England would be legitimate, and if the existence of the privilege has
to be decided as a matter of foreign law, then again under s. 38 of that
Act a reference to these reports would be justified. And since they
contain decisions of one of the highest courts in England, we are not
entitled to say that what they call a privilege of the House of Commons of
their country is not a privilege, unless some equally high authority taking
the contrary view is forthcoming. [517 D-F].
(v) It cannot be said that the privilege in question can be exercised
by the Indian State Legislatures only subject to the fundamental rights
of a citizen guaranteed by the Constitution. In Sharma's case this court
laid down that the privileges of the House of Commons which were
conferred on the House of a State Legislature by Art. 194(3) take precedence over fundamental rights.
This decision was
correct and did not
require reconsideration. [524 E-F; 525 B-C, F].
In re: Delhi Laws Act, 195g, [1951] S.C.R. 747, referred to.
It was not held in Sharma's case that Art. 21 takes precedence over
the privileges in Art. 194(3). Das C.J. no doubt said that there was no
violation of Art. 21 . in that case because the deprivation of liberty was
according to procedure established by law.
But that was only ar. alternative reason for he could have held-as he did in the case of Art.
19(1)(a)-that Art. 2(being a general provision and Art. 194(3) being
•pecial, the former must yield to the latter. [531 E-F; 532 B-E].
Another reason for saying that Das C.J. did not bold that Art. 21
took precedence over the privilege to commit by a general warrant is
the fact that be held that Reddy's case was wrongly decided. That cue
had held that Art. 22 bad
precedence over the privilege of committal.
If Art. 22 did not have precedence, as Das C.J. must have held since
he did not accept the correctness of Reddy' s case, no more could he have
held that Art. 21 would have precedence over the privilege to commit
for contempt. [532 E-F].
(vi) The majority in Sharma's case no doubt said without discussion
that the law under Art. 194(3) would be subject to all fundamental rights,
but that is so only because Art. 13 says so. [528 C-D].
Article 13 makes a law bad .if it conflicts with fundantental rights.
It cannot be said that since Art. 13 might make laws made under cl. (3)
of Art. 194 void, the privileges conferred by the second part must also
be void.
Article 13 has no application to the provisions of the Consti·
tution itself. It governs on.'y the laws made by a State Legislature which
Art. 194(3) is not.
The fact that in cl. (I) of Art. 194 the wordl
422
SUPREME COURT
RP.PORTS
(1965] I S.C.R.
'sub1ect to the provisions of the Constitution' occur, while
they arr
omillcd from cl. (3) is '1 strong indication that the Jailer clause was not
iatended to be so subjecl. [528 E-H].
(vii) When there u a conflict between a privilege conferred on a
House by the second pan of Art. 194(3) and a fundamental right that
conflict has to be resolved as in Sharmds CMC by harmonising the two
provisions.
Harmonious construction n1earu that both the provisions
should be given maximum effect without oae of them wiping out the
other.
In the 'instan.t case the conflict wa•
between
the privilege of
the House to commit a person for contempt
without
that
commillal
being liable to be examined by a court of law, and the personal liberty
of a citizen guaranteed by Art. 21 and the rig}\t to move the courts in
enforcement of that right under Art. 32 or Art. 226. If the right to
move the courts in enforcement of the fundamental right is given prece·
dcnce, the privilege whi¢h provides that if a House commits a person by
a general warrant that commiual would not be reviewed by courts of
law, will lose all its effect and it would be as if the privilege had not
been granted to a House by the second pan of Art. 194(3). Thi• was
not harmonious construction.
That being so. it would follow that when
<t House commits a person for contempt by a general \Varrant that person
would have no right to approach the courts nor can the
coum sit
in
judgment over such order of comminal. [533 G-H, 534 A-CJ.
Observation of Lord Ellenborough C. J. in Burdelt v. Abbort, referred
10 ror po5'ible exceptions to the rule. [534 C-DJ.
(viii) The Lucknow Bench was not apprised of the fact that the
detention of Kcahav Singh was under " general \•.:arrant, and till so appri'"'d it had full competence to deal with the petition under Art. 226.
Ir was not necessary in the present reference to decide the
question
whether in a habeas corpus petition where the commitment is for contempt the: law permits
release on bail, because the Reference was nol
meant to seek an answer to that question.
No contempt was committe.d
hy the Hon'ble Judges or B. Solomon or Keshav Singh for the respective
parts takeu by them in connection with the pelition as it did not appear
thoit any of those persons knew that the commitment was under a general
warrant.
Since they were not guilty, it was not competent for the
Assembly to order their production in custody.
Strictly spcakini:. the
ques!ion as to bringing them in custody before the
House <ltd not
arise on the facts of the case as the A-.embly had modified its resolution
in that regard. The Assembly was competent to ask
for explanation
from the 1wo Judges and B. Solomon.
As it had power to commit for
contempt it necessarily had power to ascenain facts concerning the contempt. The Fuli Bench was competent to entertain the petition of the
t"'O Judges and B. Solomon Advocate if on the facts of the case they
could not be said to be guilty. It would follow that the Full Bench had the
power to pass the interim orders it did.
On the facts of the
ca~e.
a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the
J>etitioner or issuing any process against the petitioner for its contempt
or for infringement of its privileges and immunities or·· who
paMCS any
order on such a petition docs not commit contempt of the said Legi>lature,
and the said Legislature is not compe!ent to take proceedings against such
a Judge in the exercise and enforcement of
it:1
poVv·ers,
privileges
and
immunities. [534 D; 537 D].
(ix) During the fourteen years that the Con•titution has been in operation, the Legislatures have not done anything to justify the view
that they do not deserve to be trusted with power. Though Art.· 211 is
A
B
c
D
E
F
G
H
SPECIAL REFERENCE
423
A
not enforceable the Legislatures have shown an admirable spirit of restraint aad have not even once in all these years discussed the conduct
of Judges. We must not lose faith in our people, must not think that
the Legislatures would misuse the powers given to them by the Constitution or that safety lay in judicial correction.
Such correction may do
more harm than good. In a modem State it is often necessary for the
good of the country that parallel powers should exist in different autho-
.6
rities. It is not inevitable that such powers will clash. [541 C-E].
c
D
E
F
G
H
Aov1soRY JURISDICTION: Special Reference No. I of 1964.
Special Reference under Art. 143 of the
Constitution of
India.
C.K. Daphtary, Attorney-General,
H.N. Sanyill,
SolicitorGeneral. S. V. Gupte, Addi. Solicitor-General, B. R. L. Iyengar
and R. H. Dhebar, for Union of India.
M.C. Setalvad, G.S. Pathak, Jagadish Swaroop, S.N. Andlcy,
P.L. Vohra, Rameshwar Nath, Mahinder Narain, Harash K. Puri
and Suresh Vohra, for Hon'ble the Chief Justice and other Judge~
of the Allahabad High Court.
G. S. Pathak, Jagdish Swaroop, Bishun Singh, Gopal Behari,
J.S. Trivedi,
S.N. Pawnikar,
S.N. Andley,
P.L. Vohra and
Rameshwar Nath, for Hon'ble Mr. Justice N.U. Beg.
N.C. Chatterjee, Asif Ansari, M.K. Ramamurthi, and R.K.
Garg for Hon'blc Mr. Justice G.D. Sehgal.
H. M. Seervai, Advocate-General, Maharashtra, T. R. Andhya•
rujina and S.P. Varma, for U.P. Vidhan Sabha.
N.A. Palkhivala, J.B. Dadachanji, O.C. Mathur and Ravinder
Narain, for Hon'ble the Chief Justice, Maharashtra High Court.
J. M. Thakore, Advocate-General, Gujarat, J. B. Dadachanji,
0. C. Mathur and Ravinder Narain, for Hon'ble the Chief Justice,
Gujarat High Court.
D. Narasaraju, N. Ramdar, O.P. Malhotra, B. Parthasarathy,
J.B. Dadachanji, O.C. Mathur, and Ravinder Narain, for Hon'ble
the Chief Justice, Orissa High Court.
Murli Manohar Vyqs, S. Murti, B.N. Kirpal, B.L. Khanna,
K. K. Jain, Chitale and M. S. Gupta, for Hon'ble the Chief Justice,.
Rajasthan High Court.
Murli Ma1Whar,
S. Murti,
B. N. Kirpal,
B. L. Khanna,
K. K. Jain, Cltitale and M. S. Gupta, for Hon'ble the Chief Justice,.
Madhya Pradesh High Court.
D.P. Singh, S. Balkrishnan, Shanti Bhatnagar and Lal Narai,,.
Singh, for Hon'ble the Chief Justice, Patna High Court.
' 'Sup.C.J./65-2
-124
SUPREME
COURT REPORTS
[ 1965] I S.C.R.
A.C. Mitra and D.N. Mukherjee, for Hon'ble Speaker. West
A
Bengal Legislative Assembly.
S. S. Sanyal, S. K. Acharyya and D. N. Mukherjee, for Hon'ble
Chairman, W.B.L.C.
H.M. Seervai, Advocate-General, Maharashtra, T.R. Anandyarujina, R .A. Gagrat and V.J. Merchant, for Hon'ble the
B
Speaker/Chairman Maharashtra L.A. & L.C.
G.N. Joshi, Atiqur Rehman and K.L. Hathi, for
Hon'ble
the Speaker, Gujarat L.A.
A tiqur Rehman and K.L.' Hathi, for Hon'ble the Speaker,
Himachal Pradesh Vidhan Sabha.
C
B.C. Barua, Advocate-General, Assam and Naunit Lal, for
Hon'ble the Speaker, Assam Legislative Assembly.
D.M. Sen, Advocate-General, Nagaland and Naunit Lal, for
Nagaland Legislative Assembly.
B.P. Iha, for Hon'ble the Chairman, Bihar Legislative Council
D
and Hon'ble the Speaker Bihar Legislative Assembly.
K.L. Misra, Advocate-General, Uttar Pradesh, B.C. Misr. ,
D.D. Chaudhury and C.P. Lal, for the Advocate-General for
the State of U.P.
M. Adhikari, Advocate-Genera/, Madhya Pradesh and l.N.
E
Shroff, for the Advocate-General for the State of Madhya Pradesh.
N. Krishnaswamy Reddy,
Advocate-General, Madras,
V.
Ramaswamy and A. V. Rangam, for the Advocate-General for
State of Madras.
B.V. Subrahamanyam, Advocate-General, State of Andhra
F
Pradesh, M. Jaganadha Rao and T.V.R. Tatachari, for the Advocate-General for the State of Andhra Pradesh.
B. Sen, S.C. Bose and P.K. Bose, for the Advocate-General
for the State of West Bengal.
-
G.C. Kasliwa/, Advocate-Genera/, State of Rajasthan, M. V.
G
Goswami, for the State of Rajasthan.
S.P. Varma, for the Advocate for the State of Bihar.
J.P. Goyal, for M/s. Keshav Singh and B. Soloman.
M. K. Namb,var and N. N. Keswani, for Bar Council of India.
M. K. Nambyar, Chaudhury Hyder Hussain, B. K. Dlurwan,
H
Bishun Singh, Shiv Sastri and S. S. Shukla, for Oudh Bar Association.
A
B
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D
SPECIAL REFERENCE (Gajendragadkar C.J.)
425
R. Jethmalani, P.K. Kapila and A. K. Nak. for Western
India Advocates Association (Intervener).
S. N. Kakar, C. S. Saran, G. P. Gupta, and S. C. Agarwal,
for Allahabad High ·court Bar Association (Intervener).
M.K. Nambyar and V.A.