# D. s. Ga.ew•I institute the enquiry against him. The Central v. Government would only come into the picture after

- **Citation:** [1959] Supp. 1 S.C.R. 806
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. Das, N. H. Bhagwati, B. P. Sinha, K. Subba Rao, K. N. W Anohoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-s-ga-ew-i-institute-the-enquiry-against-him-the-central-v-government-would-1645
- **Pages:** 86

## Headnote

State Legislature, Privilege of-Pawer to prohibit publication
of proceedings including portions -expunged by the SPeaker-Publi·
cation, if a breach of privilege-If can prevail over tM fundamental
right to freedom of speech and expression-Freedom of the PressScope and extent-Constitution of India, Arts. z94(3), z9(z)(a).
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. l9(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 llnd claimed that the proceedings in the House as those in 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
(1) S.C.R. SUPREME COURT R~PORTS
807
I
speech which were directed to be expunged and, therefore; formr958
ed no part of the official report and such publication was iri clear
breach of the privileges of the Assembly.
The points for
Pandit
determination were:
M. s. M. Sharma
(I) Could the British House of Commons entirely prohibit
v.
the publication of its proceedings or even of such port ons of Shri Sri Krishna
them as had been directed to be expunged ?
Sinha and Others
(2) Assuming that the British House of Commons ha:d such
power and consequently the State Legislature also had such
power under Article 194(3), could the privileges of the Legi~lature
under that Article prevail over the fundamental right guaranteed by Art. 19(1)(a)?
The Bihar Legislature not having admittedly made amy law
governing its powers and privileges under Entry 39 of List.JI of
the Seventh Schedule to the Constitution, the question naiturally
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, ]].)
that, there could be no doubt that the liberty of the Pr~ss 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.
Ramesh Thappar v. State of Madras, [1950]
S.C.~. 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.
I
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 evei;i 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 v~rsion of
such debates and proceedings. These were the powers and
privileges that Art. 194(3) conferred on State Legislatures and
Art. 105(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(31 or of

## Text

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806
SUPREME COURT REPORTS [1959] Supp.
•958
the Punjab Government would have authority to
D. s. Ga.ew•I institute the enquiry against him. The Central
v.
Government would only come into the picture after
Th• S•••• of
the enquiry is concluded and if it is decided to impose
Punj•b c;. Another one of the three punishments mentioned in r. 4(1).
Wanchoo J.
This contention must also be rejected.
We, therefore, dismiss the ·appeal with costs to the
State of Punjab.
Appeal dismissed..
PANDIT M. S. M. SHARMA
v.
SHRI SRI KRISHNA SINHA AND. OTHERS
(S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA,
K. SUBBA RAO and K. N. W ANOHOO, JJ.)
State Legislature, Privilege of-Pawer to prohibit publication
of proceedings including portions -expunged by the SPeaker-Publi·
cation, if a breach of privilege-If can prevail over tM fundamental
right to freedom of speech and expression-Freedom of the PressScope and extent-Constitution of India, Arts. z94(3), z9(z)(a).
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. l9(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 llnd claimed that the proceedings in the House as those in 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
(1) S.C.R. SUPREME COURT R~PORTS
807
I
speech which were directed to be expunged and, therefore; formr958
ed no part of the official report and such publication was iri clear
breach of the privileges of the Assembly.
The points for
Pandit
determination were:
M. s. M. Sharma
(I) Could the British House of Commons entirely prohibit
v.
the publication of its proceedings or even of such port ons of Shri Sri Krishna
them as had been directed to be expunged ?
Sinha and Others
(2) Assuming that the British House of Commons ha:d such
power and consequently the State Legislature also had such
power under Article 194(3), could the privileges of the Legi~lature
under that Article prevail over the fundamental right guaranteed by Art. 19(1)(a)?
The Bihar Legislature not having admittedly made amy law
governing its powers and privileges under Entry 39 of List.JI of
the Seventh Schedule to the Constitution, the question naiturally
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, ]].)
that, there could be no doubt that the liberty of the Pr~ss 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.
Ramesh Thappar v. State of Madras, [1950]
S.C.~. 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.
I
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 evei;i 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 v~rsion of
such debates and proceedings. These were the powers and
privileges that Art. 194(3) conferred on State Legislatures and
Art. 105(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(31 or of
Art. 105(3) of the Constitution and that the powers, privileges
and immunities conferred by them must yield to the fund~mental
right of the citizen under Art. l9(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
SUPREME COURT REPORTS [1959] Supp.
r958
So construed, the provisions of Art. r9(r)(a), which were
general, must yield to Art. 194(1) and the latter part of its cl. (3),
P•ndit
which are special, and Art. l9(1)(a) could be of no avail to the
1\1. s. /II. Shanna petitioner.
v.
Rmnjilal v. I11come-tax Officer, Mohindergarh, (1951] S.C.R.
Shri Sri r,·rishna 127 and Laxa11tanappa Hanuntantappa v. Union of India, [1955J
Sinha a111l Others I S.C.R.' 769, applied.
Anand Bihari Mishra v. Ram Sahay, A.LR. (r952) M.B. 31,
disapproved.
Gimapati Keshavram Reddy v. Nafisul Hasan, A.LR. (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. 2r 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 po\vers, privileges and immunities under that Article and
any deprivation of his personal liberty as a result of the proceedings before the Committee of Privileges \VOuld 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 jacic constitute a breach of the privilege of the
Assembly. Whether there had in fact been a breach of the
pridlege of the Assembly was, however, a matter for the Assembly alone to judge.
Per Subba Rao, ].-The second part of Art. r94(3) was clearly
a transitory provision and had no higher sancitity than that of
the first.
While a law when made by the State Legislature
under the first part would, by virtue of Art. r3(2), be void to the
extent it contravened the provisions of r9(r)(a), unless saved by
Art. r9(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 iundamental rights.
As there was no inherent inconsistency between Arts. r9(r)(a)
and the second part of Art. r94(3), full effect must be given to
them both on the principle of harmonious construction.
The
(I) S.C.R. SUPREME COURT REPORTS
809
wide powers and privileges enjoyed by the Legislature and its
r958
members should, therefore, be so exercisr,d as not to impa,ir the
fundamental rights of the citizen, particularly of one wlfo was
Pandit
not a member of the Legislature. In case of a conflict, M. s. M. Sha,ma
Art. l9(1)(a) must prevail over Art. 194(3) and not vice ver~a and
v.
the privilege must yield to the extent it affected the funda- Sh'i Sri Krishna
mental right.
Sinha and Olhus
Gunupati Keshavram Reddy v. Nafisul Hasan, A.LR. \1954)
S.C. 636, applied.
At the commencement of the Constitution the House of
Commons had no privilege to prevent the publication of a cprrect
and faithful report of its proceedings, save those in respect of
secret st:ssions 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 uor the documents enclosed
therewith disclosed any mala fides on the part of the petitioper or
that he had knowledge that any portion of the speech had been
expunged by the Speaker.
Consequently, even supposing
Art. 194(3) prevailed over Art. l9(1)(a), the petitioner was entitled to succeed.
!
W asan v. Walter, (1868) L.R. 4 Q.B. 73, relied on.
ORIGINAL JURISDICTION: Petition No. 122 ofl958.
Petition under Article 32 of the Constitution of
India for the enforcement of Fundamental rightE1.
I
1958, Oct. 16, 17, 28, 29, 30.
Basdeva Prasad and
N aunit Lal, for the petitioner :-The main question to
be considered in the case is as to whose pi'ivileg~ has
been involved and violated-those of the press or the
House of the Legislature. Notice served on the....JJ.petitioner by the Privileges Committee of the J:Sihar
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,
a.nd 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
1o:i
810
SUPREME COURT REPORTS [1959jSupp.
direction was given to the Press. The opposite party
Pandit
was claiming the right to prohibit all publication of
proceedings-a right which the House of Commons posM. S. M. Sharnia
. h.
h"
b
h
v.
sesses wit its own istory, ut never exercises it. T e
SA.is,; K.ishna speech was made on May 30, 1957, and the official
Si•ha ""d Othm 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 the1Assembly.
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 con-
.stitutional 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 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
(1) $.C.R. SUPREME COURT REPORTS
1 811
was that the motion was not put to vote. Important
z95s
questions arose as a result of the proceedings, dne of
them being :-
Pandit
C
C
"tt
"d d
b
Ch" f M" . t
M. S M. Sharma
an a· omm1 ee pres1 e over y a
ie
mis er
v.
who has such an interest in the matter as might1 give Shri Sri Krishna
him a real bias be deemed to be empowered to ¢arry Sinha and Others
on the investigation and recommend punishment ?
[Daphtary:
I object to the use of the word' l)ias '.
It is not supported by the petition or the plea].
The allegation of mala fide is much stronger than
bias.
'
[Chief Justice.-Art. 19(1) had granted fundamental
rights against law made by the State. There w11re no
fundamental rights against the Constitution itself. If
the Constitution provided that the House shall have
certain privileges then it was clear that there ctnnot
be a question of fundamental rights against the Constitution. If the Constitution provided that the House
shall have the privileges that so much shall bti published then Art. 19(1) will not prevail agains't the
Constitution].
I rely on Amendment One of the American Constitution on which the fundamental rights in Art. 19('1) are
based. Cooley's "Constitutional Law" (P. 350).,
Express Newspapers (Private) Ltd. v. Union of India,
[1959] S. C. R. 12, 121.
'
[Sinha, J.-In America people were more forthright
in their views and opinions and that we could have
better guidance from English precedents than' from
American.]
Article 194 (3) which dealt with powers, privileges
and immunities of the Legislatures were subject to the
provisions of the Constitution. Article 194(3) cannot
be said to abridge the provisions of Art. 19(1) .which
guaranteed fundamental rights. Article 194(3) of the
Constitution provided the procedure of the :$ritish
House of Commons in regard to powers, privileges and
immunities. Even then any power or privilege
1which
militated against the fundamental rights canrnot be
deemed to be valid. The Legislature can follow the
procedure of the British House of Commons, bht this
8l2
SUPREME OOURT REPORTS [1959] Supp.
i958
privilege of legislature cannot go contrary to the funPandil
damental rights. If such a privilege is allowed, the
M. s. M. Sharma Legislature would assume sovereignty as against the
v.
Constitution itself under the garb of privileges.
Shri Sri Krishna
Even in England, the ban on the publication of the
Sinha and O•hm 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 tho 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 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 tho 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 foll 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 fqndamental 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
(1) S.C.R. SUPREME COURT REPORTS
813
official record. They could not claim a total ptohibix9s8
tion .. There was a c?mmon basis. for this in both
Pandit
American and English democratic systems., The M. s. M. 511.,,1114
people had the right to know as to what was happenv.
ing in the House to enable them to exercise, their Shri Sri K•ishna
franchise properly. If people have a right to see and Sinha' antJ Olhm
hear the proceedings, other people who are not able to
be in the House have a right to know through published proceedings.
Wason v. Walter, (1868) L. R. IV Q. B. 73, 95.
(The counsel refers to the standing orders ~n 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 Commons' 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 ma~ter of
freedom of speech, etc., in the State Legislature. It was
impossible to contend that Art. 194(3) was not $Ubject
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 bf 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
cha.llenged in a tribunal or a court. Here in India,
elections were held under a separate authoriey provided by the Constitution under Ch. XV and such
elections could be challenged and appealed against in
the High Court, tribunals, etc. In England, tlJ,e validity of an election was to be determined by the House
814
SUPREME COURT REPORTS [1959] Supp.
r958
of Commons itself or its tribunal. Such a privilege
could not be claimed by a House of Legislature here.
Pandit
M. s. M. sh .. ma
[The Chief Justice.-Here we had powers, privilev.
ges and immunities which may be prescribed by law
Sh'i 5,; K•ishna by legislation under Art. 194(3) and it was Part XV
>inha and Oehm in the Constitution which provided for elections. It
showed that powers, privileges and immunities had
been separated and dealt with 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 pro<luction 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.-,Vhether Counsel claimed that
the Chief l\Iinister 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
pl.ice in the Committee and if.the Chief Minister had
not been there, there might be a tie. (Quoted Rule 62
of the Standing Orders of the Honse of Commons to
show that the Chief .l\Iinister 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 Honse
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
(1) S.C.R. SUPREME COURT REPORTS
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 referPandit
ence not being reported, the Committee became M s 111• Sht .. ma
"functus officio". It was against this that the peti- Shri 5,iv.Krishna
tioner sought to move the Honourable Court for proSinha and Others
hibition of the proceedings against him and for the
vindication of his fundamental rights. Either the
Committee had become "functus officio" or the nonsubmission of the report within the stipulated time
under r. 215 first proviso could only mean thfl,t the
Committee had nothing to recommend.
Reg~rding
the procedure adopted, Rules 208 and 209 had1to be
taken together. There were objections to the motion
at the time it was moved. The publication of!), 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 portipn.
[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 rue ? The question was whether one was not
entitled to bring a petition under Art. 32 against it?
0. K. Daphtary, Solicitor-General for India, B. K. P.
Sinha and S. P. Varma, for the respondents. The
question to 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 fundlfl,mental rights. If any of the powers or exercise <:>f the
I
I
Pandit
M.S M. Sharma
v
Shri Sri /(rishna
Sinha 'nd Others
816
SUPREME COURT REPORTS [1959] Supp.
powers and privileges and the defence and assertion of
any of the imi;nunities 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. 3l(a) and 3l(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 right.s ?]
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
(l)S.C.R. SUPREME COURT REPORTS
817
thought it best that they would not define the powers
z958
of tbe Legislature and left to the Legislature to decide
.
what powers it will have.
.
Pandtt
[Subba Rao, J.-When a law was made by the M. 5 M. Sharma
Legislature it was subject to fundamental rights under snri s,:·Krisnna
Art. 19 but when the Legislature made laws relating Sinna and Others
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 andJrivileges of the Legislature were. When it was so
ade 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 we11e on a
high pedestal and any other provisions should not
infringe them].
What was constitutional was constitutional. Unless
there w~re provisions made expressly subject to other
provision or provisions they had all the same footing
and were on the same plane. Wherever the CQnstitution makers wanted to say it, they said so. 'l'h~y were
otherwise independent of each 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 t~at breach of privilege was treated as contempt of the! House,
disobedience of the Speaker's order was co)ltempt.
(Refers to the standing order 62 of the House of
Commons).
103
Pandit
M. S. M. Sharma
v
ShN Sri Krishna
Sinha and Others
818
SUPREME COURT REPORTS
[1959] Snpp.
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 l\Iay's Parliamentary Pra.ctice _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 Pa.tel 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. Privileize was not ordinarily exercised
if the report was faithful and accurate. But it was
(1) S.C.R.
SUPREME COURT REPORTS
819
necessary in order to ensure if the member could say
z958
things without fear of being misreported. Otherwise
Pandit
his freedom of speech was affected.
M. s M. Sharma
It was the power and privilege of the House ofi Comv
mons to decide what was a breach or not. The courts Shri Sri Krishna
could go to the extent to find whether a particular Sinha and Others
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. ln the
present case the motior. and Committee's notice had
to be read together. It would not he correct to give
fundamental rights paramountcy over other Ptrts of
the Constitution.
'
With reference to the allegations of 'mala fide'.
What was the ' mala fide ' ? Who could deny it ¢xcept
the secretary as the ' mala tides' charge was levelled
against the Committee of Privileges ?
[Sinha, J.-Including the Chief Minister].
i
" 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 'ma.la fide ' in or~er 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 partymen. There were members of other parties. It was
not alleged otherwise. It could not also be sai~ 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 Cha~rman
from long before the matter under consideratio:q was
taken up.
[The Chief Justice.-Wbat about the time lag? No
step wa.s ta.ken for one whole year a.nd the a.lle~a.tian
820
SUPREME COURT REPORTS (1959] Supp.
z958 •
is that, when some articles were published, the matter
.
was taken up].
Pan~~
The action was taken after some time to enable the
M. s. M.
"'""' party to correct itself.
.
Shri SrivK•ishna
Sinha, J.-The point raised was that the ComSinha and Others mittee 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 ' ma.la 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 ha.d not been
followed : the standing Order 62 of the House of Commons did not apply to the Privili>ges Committee which
was a sessional committee. Then there was rule 215
a.bout the time limit. What was it that the House
ha.d done? It appointed one of its committees to
(1) S.C.H.. SUPREME COURT REPORTS
! 821
inquire and submit its report within a period. The
House could say that it could extend the time and
Pandit
enlarge the scope of time limit.
1
.w. s. M.Sharma
[The Chief Justice.-But as long as the rule stands
v •
• • • • • • • • • • • • ].
Shri Sri Krishna
The nature of the rule had to be gone into. It wa.s Sinha and Others
something fixed by the House for the guidance of the
Committee. The rules were made for the benefit <1>fthe
House. It was a matter for themselves, not for the
benefit of an outsider t.o seek to enforce it.
On the subject of m<tlice, if something was lawful it
did not matter how much malice there was1 the
motive of malice could not make unlawful whatl 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, Ad,ditional 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 m11-tters.
Article 194(1) is not a. repetition of Art. 19(l)(a), but
an abridgement of the freedom of expressioq 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(l)(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, a.s for instance the right to prohibit
publication altogether could not be imported.
822
SUPREME COURT REPORTS [1959j Supp.
,958
It had already been ma.de clear that Art. 194(1) was
P ~·
subject to the provisions of the Constitution. The
M s. ~~ ;~ ,,,. point was that Art. 194(3) in its entirety was subject
•
v.
•
• to the Constitution. Article 32 itself was very signifiShri s,; Krishna cant as to what rights and powers of Part III were
Sinha and Othm more 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(l)(a}, since it was
also ma.de subject to the rules and standing orders
that might be ma.de by the House.
[The Ohief 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 ma.de it subject to the
provisions of the Constitution but the freedom of speech
was further restricted. The Constitution itself a ppea.r·
ed to provide those limitations. Would not then Art.
194(1) read with Art. 19(1) equally lead to an anomaly?]
Article 194(2) fl.owed 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 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 without 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 ta.ken a.way].
•
(1) S.C.R. SUPREME COURT REPORTS
823
I
My liberty is threatened. The notice says there is a.
1958
' prima facie ' case. Then there is the allegation of
.
rnala fide and bias. I r.efer t.o ~he claim of the House M. s~~~~~~"'"'a
to be the sole Judge of its privileges. I say that they
v.
must be subject at least to constitutional rights,
Shri Sri Krishna
[The Chief Ju8tice.-If Art. 194(3) incorporated a.II Sinha and OtMrs
the privileges, then could not that privilege itself be
taken as'procednre established by law?] ·
Article 21 never contemplated that there wo!lld 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 ChiefJustice.-If the man is arrested then we
shall consider].
It would then be subject to the jurisdiction ~f their
Lordships.
Article 21 guaranteed that there would be
no interference with the personal liberty of the citizen
except according to a procedure enacled by law. There
must be a substantive law and such law must be
valid.
I
-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?
I~ is the
right of the people to know what had been salid 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 wa$ that
under the language of Art. !94(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 ppsition
be allowed in India ? The House of Commons debated
,.
.--··
824
SUPREME COURT REPORTS
(1959] Supp.
z95B
in the.Public, and I have a right to publish what takes
Pandit
place.
M.s M.Sharma
[Sinha, J.-You claim a total right to publish].
v.
Yes, total right to publish whatever takes place in
Sh•i Sri f(,ishna the House.