Full Judgement
Pandit M. S. M. Sharma Vs. Shri Sri Krishna Sinha & Ors [1958] INSC 132 (12 December 1958)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
SUBBARAO, K.
WANCHOO, K.N.
CITATION: 1959 AIR 395 1959 SCR Supl. (1) 806
CITATOR INFO :
R 1960 SC1186 (1,2,5,6,8) D 1961 SC 613 (4) R 1962 SC 36 (36) F 1963 SC 996 (11) C 1965 SC 745 (36,37,46,ETC.,) R 1967 SC1639 (8) RF 1967 SC1643 (22) R 1968 SC1313 (10) RF 1971 SC1132 (49) R 1973 SC 106 (102) RF 1973 SC1461 (648) R 1982 SC 710 (21)
ACT:
State Legislature, Privilege of-Power to Prohibit Publication of proceedings including portions expunged by the Speaker--Publication, if a breach of privilege-If can prevail over the fundamental right to freedom of speech and expression--Freedom of the Press Scope and extentConstitution of India, Arts. 194(3), 19(1) (a).
HEADNOTE:
The petitioner, the Editor of the English daily newspaper Searchlight of Patna, was called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges of the Assembly why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a speech delivered in the Assembly by a member thereof, portions of which were directed to be expunged by the Speaker. It was contended on behalf of the Petitioner that the said notice and the proposed action by the Committee were in violation of his fundamental right to freedom of speech and expression under Art. 19(1)(a) and of the protection of his personal liberty under Art. 21 of the Constitution, and that, as an editor of a newspaper, he was entitled to all the benefits of the freedom of the Press.
The respondents relied on Art. 194(3) Of the Constitution and claimed that the proceedings in the House as those in the British House of Commons were not usually meant to be published, and in no circumstances was it permissible to publish the parts of a 807 speech which were directed to be expunged and, therefore, formed no part of the official report and such publication was in clear breach of the privileges of the Assembly. The points for determination were:
(1) Could the British House of Commons entirely prohibit the publication of its proceedings or even of such portions of them as had been directed to be expunged ? (2) Assuming that the British House of Commons had such power and consequently the State Legislature also had such power under Article 194(3), could the privileges of the Legislature under that Article prevail over the fundamental right guaranteed by Art. 19(1)(a)? The Bihar Legislature not having admittedly made any law governing its powers and privileges under Entry 39 of List II of the Seventh Schedule to the Constitution, the question naturally was as to what were the powers, privileges and immunities of the British House of Commons at the commencement of the Constitution.
Held (per Das, C. J., Bhagwati, Sinha and Wanchoo, jj.) that there could be no doubt that the liberty of the Press was implicit in the freedom of speech and expression guaranteed to a citizen under Art. 19(1)(a) of the Constitution and that must include the freedom of propagation of ideas ensured by the freedom of circulation.
Romesh Thappar v. State of Madras, [1950] S.C.R. 594, Brijbhushan v. TheState of Delhi, [1950] S.C. R. 605 and Express Newspaper Ltd. v. Union of India, [1959] S.C.R. 12, relied on.
The liberty of the Press in India flowed from this freedom of speech and expression of a citizen and stood on no higher footing and no privilege attached to the Press as such.
Arnold v. King Emperor, (1914) L.R. 41 I.A. 149, referred to.
A survey of the evolution of Parliamentary privileges in England showed beyond doubt that at the commencement of the Indian Constitution, the British House of Commons had the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place in the House, and with greater reason, the power and privilege of prohibiting publication of an inaccurate or garbled version of such debates and proceedings. These were the powers and privileges that Art. 194(3) conferred on State Legislatures and Art. 05(3) conferred on the Houses of Parliament in India.
It would not be correct to contend that Art. 19(1)(a) of the Constitution controlled the latter half of Art. 194(3) or of Art. 105(3) Of the Constitution and that the powers, privileges and immunities conferred by them must yield to the fundamental right of the citizen under Art. 19(1)(a).
As Arts. 194(3) and 105(3) stood in the same supreme position as the provisions of Part III of the Constitution and could not be affected by Art. 13, the principle of harmonious construction must be adopted.
808 So construed, the provisions of Art. 19(1)(a), which were general, must yield to Art. 194(1) and the latter part of its cl. (3), which are special, and Art. 19(1)(a) could be of no avail to the petitioner.
Ramjilal v. Income-tax Officer, Mohindergarh, [1951] S.C.R. a 127 and Laxamanappa Hanumantappa v. Union of India, [1955] 1 S.C.R. 769, applied.
Anand Bihayi Mishra v. Ram Sahay, A.I.R. (1952) M.B. 31, disapproved.
Gunapati Keshavyam Reddy v. Nafisul Hasan, A.I.R. (1954) S.C. 636 explained as having proceeded on concession by counsel.
Nor could the petitioner complain of any breach, actual or threatened, of his fundamental right under Art. 21 of the Constitution since Art. 194(3) read with the rules, framed by the Bihar Legislative Assembly in exercise of its power under Art. 208 of the Constitution, laid down the procedure for enforcing its powers, privileges and immunities under that Article and any deprivation of his personal liberty as a result of the proceedings before the Committee of Privileges would be in accordance with procedure established by law.
Held, further, that it was not for this Court to prescribe any particular period for moving a privilege motion so as to make the subject matter of the motion a specific matter of recent occurrence within the meaning of the said rules.
This was a matter for the speaker alone to decide.
The time within which the Committee of privileges was to submit its report was a matter between the House and its Committee and the party whose conduct was the subject-matter of investigation could have no say in the matter.
The effect in law of the order of the Speaker to expunge a portion of the speech of a member might be as if that portion had not been spoken and a report of the whole speech despite the speaker's order might be regarded as a perverted and unfaithful report and Prima facie constitute a breach of the privilege of the Assembly. Whether there had in fact been a breach of the privilege of the Assembly was, however, a matter for the Assembly alone to judge.
Per Subba Rao, J.-The second part of Art. 194(3) was clearly a transitory provision and had no higher sanctity than that of the first. While a law when made by the State Legislature under the first part would, by virtue of Art.
13(2), be void to the extent it contravened the provisions of 19(1)(a), unless saved by Art. 19(2), there could be no reason why the powers, privileges and immunities conferred under the second part should be free from the impact of the fundamental rights.
As there was no inherent inconsistency between Arts.
19(1)(a) and the second part of Art. 194(3), full effect must be given to them both on the principle of harmonious construction. The 809 wide powers and privileges enjoyed by the Legislature and its members should, therefore, be so exercised as not to impair the fundamental rights of the citizen, particularly of one who was not a member of the Legislature. In case of a conflict, Art. 19(1)(a) must prevail over Art. 194(3) and not vice versa and the privilege must yield to the extent it affected the fundamental right.
Gunupati Keshavarm Reddy v. Nafisul Hasan, A.I.R. (1954) S.C. 636, applied.
At the commencement of the Constitution the House of Commons had no privilege to prevent the publication of a correct and faithful report of its proceedings, save those in respect of secret sessions held under exceptional circumstances, and had only a limited privilege to prevent mala fide publications of garbled, unfaithful and expunged reports of the proceedings. In the instant case, neither the notices nor the documents enclosed therewith disclosed any mala fides on the part of the petitioner or that he had knowledge that any portion of the speech had been expunged by the Speaker. Consequently, even supposing Art. 194(3) prevailed over Art. 19(1)(a), the petitioner was entitled to succeed.
Wasan v. Walter, (1868) L.R. 4 Q.B. 73, relied on.
ORIGINAL JURISDICTION: Petition No. 122 of 1958.
Petition under Article 32 of the Constitution of India for the enforcement of Fundamental rights.
1958, Oct. 16, 17, 28, 29, 30. Basdeva Prasad and Naunit Lal, for the petitioner :-The main question to be considered in the case is as to whose privilege has been involved and violated-those of the press or the House of the Legislature.
Notice served on the petitioner by the Privileges Committee of the Bihar Assembly is illegal and invalid and the Constitution of the Privileges Committee is illegal as the Chief Minister of the State Dr. S. K. Sinha himself has been the Chairman of the Committee.
On May 30, 1957, there was a debate in the Bihar Legislative Assembly when M. P. N. Singh, one of the oldest members of the Assembly, made a speech the gist of which was a criticism of the administration of Bihar as run by Dr. S. K. Sinha, the Chief Minister, and cited certain instances of favouritism. At this stage the Speaker held that a portion of the speech was objectionable and ordered it to be struck off and expunged. It was a general statement. No specific 102 810 direction was given to the Press. The opposite party was claiming the right to prohibit all publication of proceedings a right which the House of Commons possesses with its own history, but never exercises it. The speech was made on May 30, 1957, and the official authorised report was published and made available on January 2, 1958. 'The Search Light', being a daily newspaper, came out on May 31 with what happened in the Assembly. A privilege motion was said to have been moved and referred to the Committee of Privileges; no voting was taken and no time limit was given for the presentation of the report which was required under the rules of the House. If no time limit was prescribed then under rule 215 the report was to be submitted within a month.
It was after more than a year i.e. on August 18, 1958, that the petitioner received a notice to show cause why appropriate action should not be taken against him for the breach of privilege. This showed malice on the part of the Privileges Committee.
The action of the Privileges Committee raised constitutional points affecting the petitioners fundamental right of freedom of expression.
The Legislature cannot have such a privilege as will deprive the citizens of their fundamental rights which are guaranteed by the Constitution, specially the right of freedom of expression under Art. 19(1) (a). In the actual motion the charge was that the speech was published in its entirety, " Jyon ka Tyon " ; but the motion adopted by the Privileges Committee, the charge against the Editor was that he published a perverted and unfaithful report of the proceeding, and the expunged portions of the speech was also published in derogation of the order of the Speaker.
[Wanchoo, J.-If the publication of expunged portions would make a report false, how could it be anything other than perverted and unfaithful?] [Daphtary: It was unfaithful as it was not a true report, as portions expunged had also been published].
The reference was not by the House but by the Speaker. It was open to the petitioner to challenge the procedure, as one of the grounds of his objection 811 was that the motion was not put to vote. Important questions arose as a result of the proceedings, one of them being :Can a Committee presided over by a Chief Minister who has such an interest in the matter as might give him a real bias be deemed to be empowered to carry on the investigation and recommend punishment ? [Daphtary:I object to the use of the word 'bias'. It is not supported by the petition or the plea].
The allegation of mala fide is much stronger than bias.
[Chief Justice.-Art. 19(1) had granted fundamental rights against law made by the State. There were no fundamental rights against the Constitution itself. If the Constitution provided that the House shall have certain privileges then it was clear that there cannot be a question of fundamental rights against the Constitution. If the Constitution provided that the House shall have the privileges that so much shall be published then Art. 19(1) will not prevail against the Constitution].
I rely on Amendment One of the American Constitution on which the fundamental rights in Art. 19(1) are based.
Cooley's " Constitutional Law " (P. 350).
Express Newspapers (Private) Ltd. v. Union of India, [1959] S. C. R. 12, 121.
[Sinha, J.-In America people were more forthright in their views and opinions and that we could have better guidance from English precedents than from American.] Article 194 (3) which dealt with powers, privileges and immunities of the Legislatures were subject to the provisions of the Constitution. Article 194(3) cannot be said to abridge the provisions of Art. 19(1) which guaranteed fundamental rights. Article 194(3) of the Constitution provided the procedure of the British House of Commons in regard to powers, privileges and immunities.
Even then any power or privilege which militated against the fundamental rights cannot be deemed to be valid. The Legislature can follow the procedure of the British House of Commons, but this 812 privilege of legislature cannot go contrary to the fundamental rights. If such a privilege is allowed, the Legislature would assume sovereignty as against the Constitution itself under the garb of privileges.
Even in England, the ban on the publication of the proceedings in Parliament had ceased to exist in practice after the 16th century.
The proceedings of legislatures are open to the public and the citizens have a right to know whatever happens in the House and also to know as to how any portion of the proceedings is ordered to be expunged.
The Blitz case Gunupati Keshavram Reddy v. Nafisul Hasan, A. I. R. 1954 S. C. 636 in which the Supreme Court ordered the release of a correspondent who had been arrested by the Speaker of the U. P. Assembly in connection with breach of privilege. He was not produced before the Magistrate and on Habeas Corpus petition, he was released. Article 20 prevailed and it was established that Art. 194(3) could not go against Art. 20 guaranteeing a person's liberty.
[Chief Justice.-If the privileges were given by the Constitution itself, then the question of fundamental rights does not come at all. Article 19(1) is against law made by the State Government. Fundamental rights do not prevail against the Constitution. The counsel could take the stand that Bihar Legislative Assembly has not got the powers which it claims. The question was whether the Assembly had such powers under the Constitution].
In England there was no written constitution. The House of Commons had claimed the right to prohibit publication but in fact and in actual practice never exercised that right. The American Constitution also granted full freedom to publish the proceedings of the House including the expunged portions. That being so, it was for the Court to interpret Art. 194(3) harmoniously with Art. 19(1) and the provisions of the former had to be consistent with fundamental rights granted under the Constitution. In England the Parliament is supreme and there is no written constitution, but here the Constitution is supreme. The right to expunge could be claimed only for the purpose of 813 official record. They could not claim a total prohibition.
There was a common basis for this in both American and English democratic systems. The people, had the right to know as to what was happening in the House to enable them to exercise their franchise properly. If people have a right to see and hear the proceedings, other people who are not able to be in the House have a right to know through published proceedings.
Wason v. Walter, (1868) L. R. IV Q. B. 73, 95.
(The counsel refers to the standing orders in the British House of Commons quoting May's Parliamentary Practice).
Article 194(1) in its entirety was subject to the provisions of the Constitution and under Art. 19 to the provisions of the Constitution. If under Art. 194(3) the application of the House of Common laws provided complete immunity, then it was impossible to continue the consistency of Art. 194(1) and Art. 194(3). Article 194(1) provided clearly that it was subject to the provisions of the Constitution in the matter of freedom of speech, etc., in the State Legislature.
It was impossible to contend that Art. 194(3) was not subject to the provisions of the Constitution. Under Art.
194(1) it was made clear that a member of the House of Legislature did not have the same immunity as had a member of the House of Commons who enjoyed complete freedom and had no restriction of whatever sort. Here Art. 194(1) made the freedom of speech in the House subject to the provision of the Constitution.
[The Chief Justice.-It might be that one of the immunities was singled out and made subject to the provisions of the Constitution].
Privileges and rights of the House of Commons extended also to elections. The power of the House of Commons to fix its own elections could not be challenged in a tribunal or a court. Here in India, elections were held under a separate authority provided by the Constitution under Ch. XV and such elections could be challenged and appeared against in the High Court, tribunals, etc. In England, the validity of an election was to be determined by the House 814 of Commons itself or its tribunal. Such a privilege could not be claimed by a House of Legislature here.
[The Chief Justice.-Here we had powers, privileges and immunities which may be prescribed by law by legislation under Art. 194(3) and it was Part XV in the Constitution which provided for elections. It showed that powers, privileges and immunities had been separated and dealt with separately].
The whole scheme of the Constitution had to be taken into account. The reasonable interpretation of Art. 194(3) was that, like Art. 194(1) it was also in its entirety made subject to the provisions of the Constitution.
The next point was that the Chief Minister could not be the Chairman of the Committee of Privileges with quasi-judicial powers to summon witness and demand production of evidence.
In this case, the Chief Minister had a certain interest in the matter and this was against all principles of natural justice:
[The Chief Justice.-Whether Counsel claimed that the Chief Minister could not be at all the Chairman of the Committee or that the Chief Minister or anybody should not be the Chairman or in the Committee if he had an interest].
I put it on the ground of interest only. Voting took place in the Committee and if the Chief Minister had not been there might be a tie. (Quoted Rule 62 of the Standing Orders of the House of Commons to show that the Chief Minister could not be the Chairman of the Committee of Privileges).
I will now deal with and challenge the procedural aspect of the matter. It was the House alone which had a right to refer the matter of breach of privilege. Rule 207 of the Assembly clearly laid down that-the matter must be of recent occurrence. In the House of Commons, it was accepted that " recent occurrence " could not go beyond ten days.
The privilege motion got precedence over even adjournment motions. Then under r. 215, no time limit was fixed by the House for the report to be submitted, as such the report was to be submitted within 815 a month. The House had not extended the date for the submission of the Report by the Privileges Committee and in the absence of such extension, the reference not being reported, the Committee became " functus officio ". It was against this that the petitioner sought to move the Honourable Court for prohibition of the proceedings against him and for the vindication of his fundamental rights.
Either the Committee had become " functus officio " or the non-submission of the report within the stipulated time under r. 215 first proviso could only mean that the Committee had nothing to recommend. Regarding the procedure adopted, Rules 208 and 209 had to be taken together. There were objections to the motion at the time it was moved. The publication of a true and full account could not be termed unfaithful and perverted. It was for the court to determine whether there has been a breach of privilege committed.
[Sinha, J.-Is it our jurisdiction? Is it not the exclusive function of the Parliament ?] [The Chief Justice.--What was a privilege and what was not could be stated but whether there was a breach of privilege or not it was for the House to say].
There was no breach of privilege. What we are claiming is that the reporting of proceedings is not a privilege the House can claim. Then my other point is that I have not published the expunged portion.
[Daphtary, Solicitor-General: It is for the House to decide].
Am I not entitled to come to this Court as custodian of my fundamental rights, that powers are claiming to punish and proceed against me and coerce me? The question was whether one was not entitled to bring a petition under Art. 32 against it ? C. K. Daphtary, Solicitor-General for India, B. K. P. Sinha and S. P. Varma, for the respondents. The question to be considered is how much of the portion which contained all the allegations fell under Art. 32. The Article could deal only with breach of fundamental rights. If any of the powers or exercise of the 816 powers and privileges and the defence and assertion of any of the immunities involved, were a breach of fundamental rights or were something contrary to fundamental rights, even then the powers and the privileges were good. They could not be considered bad as offending those rights. It was not open for someone to come and say that there was no such power and immunity when such powers and immunities were provided under Art. 194(1) and was made part of the Constitution. Every citizen had been given the right of freedom of speech by the Constitution. A member of the House of a Legislature also enjoys that freedom by virtue of being a citizen. Only rules and regulations made in excess of legislative powers could be questioned and not the powers themselves. Then there was the question of amendment of the Constitution which was not affected by fundamental rights.
The result would be that by amendments of the Constitution fundamental rights could be modified or removed. That was what was done by amendments in Arts. 31(a) and 31(b) where the rights were modified. Article 194 was put there in the Constitution by the framers simultaneously with other provisions. It therefore had an equal footing with other provisions of the Constitution and unless expressly stated in the provision itself could not be made subject to other provisions of the Constitution. All parts of the Constitution were made by the same people and were equal.
One could not be made more important than the other.
[Subba Rao, J.-What was the idea then in giving a paramount position to fundamental rights in our Constitution ?] They are fundamental to human beings.
[Subba Rao, J.-If the legislature had made a law defining its powers and privileges, could that law be valid if it infringed the fundamental rights?] The Constitution itself said that powers, privileges and immunities would be such as the Legislature would lay down.
Even such a law would not be against the fundamental rights.
It would be in exercise of the constituent law. The Constitution makers 817 thought it best that they would not define the powers of the Legislature and left to the Legislature to decide what powers it will have.
[Subba Rao, J.-When a law was made by the Legislature it was subject to fundamental rights under Art. 19 but when the Legislature made laws relating to its powers, etc., it was not subject to Art. 19. Was that not an anomalous situation ?] There was no anomaly at all. The Constitution makers themselves had said what powers and privileges of the Legislature were. When it was so made as a law by virtue of powers granted by the Constitution then it could not be subject to fundamental rights. That what the Constitution itself had chosen to give was subject to fundamental rights was not a sound argument.
[Bhagwati, J.-The fundamental rights were on a high pedestal and any other provisions should not infringe them].
What was constitutional was constitutional. Unless there were provisions made expressly subject to other provision or provisions they had all the same footing and were on the same plane. Wherever the Constitution makers wanted to say it, they said so. They were otherwise independent of each other, unless stated to the contrary. No part of the Constitution could be said to be void and if one part was struck down then it would mean that the Constitution itself was being struck down. Article 194 had to be given the status of Constitution law.
The first point was that powers, privileges and immunities given by Art. 194(3), were not subject to Art. 19. Having established that, the second point that would arise would be what were those powers and privileges. What was the ambit of those powers.
In England there were instances to show that breach of privilege was treated as contempt of the House, disobedience of the Speaker's order was contempt. (Refers to the standing order 62 of the House of Commons).
103 818 The argument advanced by the other side was fallacious.
[Quotes from May's Parliamentary Practice].
Standing order 62 did not apply to the Committee of Privileges. It applied to select committees and standing committees but not to the Committee of Privileges, which was a sessional committee appointed at the beginning of each session. The House of Commons had powers to make rules from time to time and regulate its own procedure. All that the court had to satisfy itself about was whether or not the House had the power to follow up a breach of privileges.
[Bhagwati, J.-Whether power to make rules had not been within limits. In an effort to protect immunities and privileges one could not expand the privileges and immunities].
All the precedents of the House of Commons were not available dating back to 16th or 17th Century but there was enough in May's Parliamentary Practice to support the argument. So long as the debates were correctly and faithfully reported the right to prevent publication was not enforced. Journalists were present in the House galleries by the leave and licence of House and on sufferance. What the Speaker said was not to be published, it could not be published.
[Subba Rao, J.-What was the purpose of expunging a portion of the proceedings ?] The expunged portion was not deemed to have been stated in the House. There was the case in the House of Lords where an expunged portion was published and became breach of privilege. The privilege of the House to control -publication was always there though it might not be exercised. The House, was always zealous of its privileges.
Even here in India, House privilege had been asserted at the time when Mr. Vithalbhai Patel was President of the Assembly. There was heated debate on the question as to in whom did the control of the precinct of the House vest, the Viceroy or the President of the Assembly. Mr. Patel to assert the Privilege of the House asked the galleries to be cleared. Privilege was not ordinarily exercised if the report was faithful and accurate. But it was 819 necessary in order to ensure if the member could say things without fear of being misreported. Otherwise his freedom of speech was affected.
It was the power and privilege of the House of Commons to decide what was a breach or not. The courts could go to the extent to find whether a particular privilege existed.
[The Chief Justice: If the privilege claimed was excessive would it not affect fundamental rights ?] It depended on the wording of the notice. In the present case the motion and Committee's notice had to be read together. It would not be correct to give fundamental rights paramountcy over other parts of the Constitution.
With reference to the allegations of mala fide'. What was the' mala fide'? Who could deny it except the secretary as the 'mala fides' charge was levelled against the Committee of Privileges ? [Sinha, J.-Including the Chief Minister].
" Mala Fides " was alleged against the Committee. [Sinha, J.-The petition says that the committee is influenced by the Chairman].
It is not so. I will confine myself to the petition which says that the Committee of Privileges is proceeding against the petitioner mala fide' in order to muzzle him and restrict him from expressing his views.
The Chief Minister was the Chairman of the Committee. There was nothing to show nor was it claimed that the member of the Committee were all his party men. There were members of other parties. It was not alleged otherwise. It could not also be said that the members of the Committee were all his adherents. In the circumstances, what else could be done except for the Secretary to deny the allegations of 'mala fide' which was levelled against the committee appointed by the Speaker and the Chief Minister was Chairman from long before the matter under consideration was taken up.
[The Chief Justice.-What about the time lag? No step was taken for one whole year and the allegation 820 is that, when some articles were published, the matter was taken up].
The action was taken after some time to enable the party to correct itself.
Sinha, J.-The point raised was that the Committee did not do anything for one year and then woke up one morning and then pressed the matter].
How is the matter carried any further by these arguments.
Ultimately the House would judge and it was composed of 316 members. Where was the question of mala fide'? No one in the House opposed the motion. Where was the malice of the Committee, whether it issued the notice immediately or after some time ? [Sinha, J.-The argument of the petitioner's Counsel was that the House should have been presumed to have dropped the matter as the House had not done anything at all for one year and all of a sudden the matter was taken up. The point made out was that but for the petitioner's subsequent action, no notice would have been issued by the Committee].
They had issued the notice stating that there was a breach of privilege.
[Sinha, J.-Had not the Committee become 'functus officio' by lapse of time ?] No. the Committee had the power to launch the prosecution.
It did not do it immediately. It waited for three or four months.
[Sinha, J.-The very essence of these proceedings which are of a summary character is that the matter should be expeditiously dealt with].
Is it not a matter of internal management ? The House had decided something and it was for the Committee to take some action. The House did not rescind the decision.
With reference to the claim that rules had not been followed: the standing Order 62 of the House of Commons did not apply to the Privileges Committee which was a sessional committee. Then there was rule 215 about the time limit.
What was it that the House had done? It appointed one of its committees to 821 inquire and submit its report within a period. The House could say that it could extend the time and enlarge the scope of time limit.
[The Chief Justice.-But as long as the rule stand.........].
The nature of the rule had to be gone into. It was something fixed by the House for the guidance of the Committee. The rules were made for the benefit of the House. It was a matter for themselves, not for the benefit of an outsider to seek to enforce it.
On the subject of malice, if something was lawful it did not matter how much malice there was, the motive of malice could not make unlawful what was otherwise lawful.
Malice imputed was that the Chief Minister was the Chairman of the Committee. He might not be there. The Speaker might appoint someone else. How can then one presume that the committee would act maliciously ? There were responsible persons holding, responsible positions.
H. N. Sanyal, Additional Solicitor-General of India, for the Attorney-General for India, cited the powers of the legislature of Nova Scotia and the position there, summed up the law relating to powers and privileges' Basdeva Prasad, in reply. The main fact to be borne in mind is that the Parliament or the Legislature in India was not really as sovereign as the' British Parliament which was supreme in all matters.
Article 194(1) is not a repetition of Art. 19(1)(a), but are abridgement of the freedom of expression and, speech which would have otherwise been available to' the members of the legislature as ordinary citizens.
Article 194(3) itself does not provide a constitutional exemption to the freedom guaranteed under Art. 19(1)(a) and Art. 194(3) is subject to the provisions of the Constitution in Part III and the other Art. 21.
Article 194(3) does not import into the Indian Constitution the powers, privileges and immunities in their entirety, as for instance the right to prohibit publication altogether could not be imported.
822 It had already been made clear that Art. 194(1) was subject to the provisions of the Constitution. The point was that Art. 194(3) in its entirety was subject to the Constitution.
Article 32 itself was very significant as to what rights and powers of Part III were ]lore important. Writs could be issued for breach of fundamental rights or other violation of rights, including powers of taxation.
Therefore, Art. 194 did not enlarge but it abridged the scope of application of Art. 19(1)(a), since it was also made subject to the rules and standing orders that might be made by the House.
[The Chief Justice.-Whether Parliament could not under the residuary powers of legislation, make a law imposing restrictions on the freedom of speech of members of the State Legislature. It was pointed that Art. 19(1) was a primary right; Art. 19(2) cut it to some extent; Art. 194(1) also made it subject to the provisions of the Constitution but the freedom of speech was further restricted. The Constitution itself appeared to provide those limitations.
Would not then Art. 194(1) read with Art. 19(1) equally lead to an anomaly?] Article 194(2) flowed from Art. 194(1). If Art. 194 imported powers, privileges and immunities wholesale from the House of Commons of Great Britain, how could they be exercised ? There was Art. 208. Any other form of restriction arising from the exercise of those powers would be unreasonable restriction.
What Art. 194 gave powers, privileges and immunities.
Article 208 gave the power to punish, subject to the provisions of the Constitution. It could not be said that the British House of Commons had the power to punish a man twice. A man could not be held guilty of privilege by an ordinary court of law and at the same time by the House of Commons. But here Art. 208 and Art. 194 came to be subject to Art. 21 in that no one could be deprived of personal liberty with. out a procedure of law.
[The Chief Justice.-But then you have not come to the stage of Art. 21 at all. Your liberty has not been taken away].
823 My liberty is threatened. The notice says there is prima facie case. Then there is the allegation of mala fide and bias. I refer to the claim of the House to be the Bole Judge of its privileges. I say that the, must be subject at least to constitutional rights.
[The Chief Justice.-If Art. 194(3) incorporated all the privileges, then could not that privilege itself be taken as procedure established by law ?] Article 21 never contemplated that there would be no procedure. Supposing none of them was followed and a warrant was issued, could not that be questioned in a court of law ? [The Chief Justice.-If the man is arrested then we shall consider].
It would then be subject to the jurisdiction of their Lordships. Article 21 guaranteed that there would be no interference with the personal liberty of the citizen except according to a procedure enacted by law. There must be a substantive law. and such law must be valid.
If your Lordships hold with me that fundamental rights were superior, then Art. 194 would have to be read with Art.
19(1) and the American position would help. If the House was the sole Judge then neither Art. 21 nor Art. 22 would be available.
[The Chief Justice.-If one could publish anything that was said in the House there would be no meaning in expunging.
Being expunged,, meant it was not said].
Yes, but will not the House take notice? It is the right of the people to know what had been said and what was expunged.
Expunction would be for the purposes of official record.
Even in Hansard, the expunged portion is not removed but only red lines put over it.
[Sinha, J.-The argument advanced was that under the language of Art. 194(2) you could not publish anything at all].
Yet, if the claim of total prohibition was accepted, then I would be on velvet. But would that position be allowed in India ? The House of Commons debated 824 on the Public, and I have a right to publish what takes place.
[Sinha, J.-You claim a total right to publish].
Yes, total right to publish whatever takes place in the House. I will not claim I have a right to publish garbled and unfaithful report, I have a right to publish a faithful report of what was said or done. The argument of the learned Solicitor-General was that Art. 194(3) was not subject to the provisions of the Constitution. In the Constitution, the power was given to the President to make all laws and regulations in Part D States and the provision did not say subject to fundamental rights Could the President make laws that would have the effect of taking away fundamental rights or that it was said that citizens in Part D states aid not have any fundamental rights? All the provisions of the Constitution had to be read in relation to the chapter on fundamental rights.
In the absence of law, the power to make rules could come in conflict with fundamental rights. Law could mean a power or authority.
[Subba Rao, J.Under Art. 194(3), the legislature of a State had all the powers, privileges and immunities of the House of Commons. One of such powers was to prevent publication of a garbled version. If in exercise of that power, the legislature made an order asking someone to appear at its bar, would that order come within the meaning of law ?] " Law included order, regulation or notification." [The Chief Justice.-What is the meaning of an order ? Does it mean an executive order ?] It is an executive order. Order flowing from public authority. The definition of the State included Government, Parliament, Legislature and local authority. It would be an order passed by authority. Article 21 would cover acts under the enacted law. Here, a Committee of the House was proceeding to take action to deprive the petitioner of his personal liberty. What was the remedy? What could be the procedure? [The Chief Justice.-It would be argued that the Constitution itself was law. It Deed not be enacted by 825 the Legislature. If Art. 194 imported all the privileges of the House of Commons, then no question arose at all. That itself prescribed the powers and privileges].
[Subba Rao, J.-If in exercise of such a power an order was made by the legislature, would it not be law within the meaning of its definition in the Constitution ?] Executive order will be included in the expression law ".
[Subba Rao, J.-If an order, which would be law as thus defined, be made, would it be valid if it infringed the fundamental rights ?] [The Chief Justice.-The State could make a law relating to contempt of Court. Supposing the State did not make such a law, the Court could still haul up people for contempt. Was not there inherent power ?] The High Courts had the power to punish. But the question of punitive punishment would arise.
[The Chief Justice.-Fundamental rights were fundamental in the sense that human rights which were valuable were fundamental. The other provisions of the Constitution could be equally efficacious].
My point was that any law or action had to be within the constitutional rights guaranteed by the Constitution. Even the right to punish would have to be within the ambit of the fundamental rights chapter. If anyone was committed for contempt of court which was not fully established, could he not seek redress ? Justice 'Was not a cloistered virtue.
Could be not then claim a remedy under the ordinary law ? [Subba Rao, J.-A law made by the Legislature in respect of privileges would be subject to fundamental rights. If the law was not made, the privileges were not subject to fundamental rights].
[Sinha, J.-This will be a good reason for the Legislature not to make law at all].
Article 194(3) bad to be interpreted as coming within the scope of fundamental rights. The first part was admittedly so. The second part was equally subject to the fundamental rights by the very necessary implication.
104 826 Privileges did come within judicial review. They could go into the nature of privilege and on the given facts decide their constitutional validity.
Cur. Adv. Vult.
1958. December 12. The Judgment of Das, C. J., Bhagwati, Sinha and Wanchoo, JJ., was delivered by Das, C. J. Subba Rao, J., delivered a separate Judgment.
DAS, C. J.-The petitioner before us, who is a citizen of India, is by profession a journalist and has at all material times been and is still working as the editor of the Searchlight., one of the well-known English daily newspapers having a large circulation in Patna and other places in the State of Bihar. The first respondent has at all material times been and is the Chief Minister of the State of Bihar and the Chairman of the Committee of Privileges of the Bihar Legislative Assembly. The Committee of Privileges has been impleaded as the second respondent as if it is a legal entity entitled to sue or to be sued in its name. The third respondent is called and described as the Secretary to the Bihar Legislative Assembly as if it also is a legal entity but the incumbent of that office has not been named in the cause title. As no objection has been taken to the way the second and the third respondents have been impleaded as parties nothing further need be said about the propriety of such procedure.
This petition under Art. 32 of the Constitution raises several important questions of far reaching effect. It came to be filed in the following circumstances: In his speech made in the Bihar Legislative Assembly on May 30, 1957, in course of the general discussion on the Budget for the year 1957-58 Shri Maheshwar Prasad Narayan Sinha, a Congress member of that Assembly, delivered what has been described as " one of the bitterest attacks against the way the Chief Minister was conducting the administration of the State ".
The Chief Minister, who also belongs to the Congress party, is the first respondent before us. Shri Maheshwar Prasad Narayan Sinha 827 referred to the way the Chief Minister, according to him, was being guided by the advice of a gentleman who was well understood by all to be Shri Mahesh Prasad Sinha, who was an ex-minister of Bihar and had been defeated at the last general elections. The member referred, as common knowledge, to the activities of Shri Mahesh Prasad Sinha in the selection of Ministers and the formation of the Ministry as also to the glaring instances of encouragement of corruption by the Government by, amongst other things, the transfer of a Muslim District Engineer from Darbhanga to Muzaffarpur for exploiting that officer's influence on the Muslim voters of Muzaffarpur. Similar reference was made to the case of a District and Sessions Judge who, notwithstanding the recommendation for his discharge made by the Chief Justice after a regular judicial enquiry had been held by a High Court Judge, was ordered only to be transferred to another place on the intervention of Shri Mahesh Prasad Sinha. The member strongly criticised the appointment of Shri Mahesh Prasad Sinha as the Chairman of the Bihar State Khadi Board as having been made only to enable him to stay in Patna where residential accommodation at Bailey Road had been procured for him. The distribution of portfolios amongst the ministers did not also escape strictures from this member. There is no dispute-indeed it is admitted in paragraph 6 of the present petition-that immediately after Shri Maheshwar Prasad Narayan Sinha referred to the question of appointment of the Chairman of the Khadi Board, a point of order was raised by another member of the Assembly, Shri Satendra Narain Agarwal, and the Speaker stated as follows:" Mahesh Babu ke Sambandh Me Jitni Baten Kahi Gain Uske Bare Me Maine Kah Diya Ki Us Tarah Ki Bat Ko Proceeding Se Nikal Diya Jayega Lekin State Khadi Board Ke Chairman Ke Bare Me Jo Kuch Kahenge We Karyawahi Me Rahenge or Iske Bishai Me Manniya Sadasya Ko Kahane Ka Hak Hai. " which translated into English means roughly:" I have already ruled with reference to whatever has been said about Mahesh Babu that such words 828 would be expunged from the proceedings but that whatever may be said with reference to the Chairmanship of the State Khadi Board will remain in the proceedings and the Hon'ble member has the right to speak on that matter. " In its issue of May 31,1957, the Searchlight published a report of the speech of Shri Maheshwar Prasad Narayan Sinha which is set out in paragraph 2 of the petition and also reproduced in what has been called "annexure B " in annexure III to the petition. It will suffice, for the purposes of our decision of this petition, to set out the opening part of the report which reads as follows:BITTEREST ATTACK ON CHIEF MINISTER M. P. Sinha's choice as Khadi Board chief condemned.
Maheswar Babu's scathing criticism of Government.
(By our Assembly Reporter) Patna, May 30.
One of the bitterest attacks against the way the Chief Minister was conducting the administration of the State was made in the Bihar Assembly today by Mr. Maheshwar Prasad Narayan Singh, a Congress member who said that contrary to all principles of good Government, the Chief Minister was guided by the advice of a gentleman who had been defeated at the election and stood condemned before the bar of public opinion. He also named the gentleman by whose advice the Chief Minister was allegedly running the administration.
In this sixty-minute speech which was punctuated with frequent applause by Congress as well as Opposition benches, Mr. M. P. N. Singa said that corruption 829 could not be eradicated from Government unless the Chief Minister refused to be influenced by such undesirable elements.
He said it was common knowledge that (luring the period of the formation of the new ministry which took unduly long time many aspirants for Ministership and Deputy Ministership went to a defeated Minister for pleading their case so that the defeated Minister concerned could influence the Chief Minister." It has not been denied by the learned advocate for the petitioner that the references to the gentleman who had been defeated at the election and was said to have stood condemned and by whose advice the Chief Minister (respondent 1) was alleged to be guided, were intended to be and were understood by the public to be references to Shri Mahesh Prasad Sinha, all reference to whom had, as herein before mentioned, been directed by the Speaker to be expunged from the proceedings.
On June 10, 1957, one Shri Nawal Kishore Sinha, a member of the Bihar Legislative Assembly, gave notice to the Secretary, Bihar Legislative Assembly (respondent 3) that he wanted to raise a question of the breach of privilege of the House. That notice was in the following terms "To The Secretary, Bihar Legislative Assembly, Patna.
The 10th June, 1957.
Sir, I give notice that I want to raise the following question involving a breach of privilege of the House, after question hour today.
" That the Hon'ble Speaker ordered that all references regarding Shri Mahesh Prasad Sinha, Ex-Industry Minister, made in the speech of Shri Maheshwar Prasad Narain Sinha on the 30th May, 1957, except that of his appointment as the Chairman of the Khadi 830 Board, be expunged but in spite of this the " Searchlight ", a local daily, published the entire speech of Shri Maheshwar Prasad Narayan Sinha, containing all references to Shri Mahesh Prasad Sinha which were ordered to be expunged.
Hence there has been a breach of the privilege of the House.
A copy of the " Searchlight ", dated the 31st of May, is filed herewith.
Yours faithfully, Nawal Kishore Sinha, M.L.A." An account of the proceedings that took place in the House on June 10, 1957, appears from " annexure D " in annexure III to the petition. It will appear from that account that after Shri Nawal Kishore Sinha had asked for leave to move his motion, the Speaker read out to the members the relevant rule as to the procedure that has to be followed when, on such leave being asked for, an objection is or is not taken.
Thereafter, as no objection was raised in accordance with that rule, the Speaker declared that the mover had received the permission of the House to move his motion. One Shri Karpuri Thakur having remarked that he could express no view without knowing what had been printed and what had been directed not to be printed, the Speaker read out the text of the notice sent in by Shri Nawal Kishore Sinha set out above which referred to the issue of the Searchlight in question.
As Shri Karpuri Thakur was apparently satisfied by this, the Speaker then requested Shri Nawal Kishore Sinha to move his resolution. The account shows that Shri Nawal Kishore Sinha then said "Sir, I beg to move: that the matter be referred to the Privilege Committee of the House". No amendment having been moved, the Speaker, according to the report of the proceedings set forth in " annexure D " ' put the question to the louse and, nobody objecting to the same, declared the resolution carried.
It appears that the Committee of Privileges (respondent 2) did not take up the consideration of the matter promptly and while the mattet was pending before the 831 Committee sharp exchanges of charges and counter charges took place between the petitioner and the Chief Minister (respondent 1) as are evidenced by the extracts from the issues of the Searchlight of May 27, 28 and 31, 1958. There appears to have been a debate on June 5, 1958, for two hours in the Bihar Legislative Assembly on the alleged failure of the State Government to protect the petitioner from being assaulted by goondas. It is said that these exchanges roused the Committee of Privileges from slumber into activity on August 10, 1958, when it passed a resolution which, according to annexure II to the petition, ran as follows -"The question is that Shri M. S. M. Sharma, Editor and Shri Awadhesh Kumar Tiwari, Printer and Publisher of the " Searchlight " be called upon to show cause why appropriate action be not taken against them by reason of the commission of a breach of privilege in respect of the Speaker of the Bihar Legislative Assembly and the Assembly itself by publishing a perverted and unfaithful report of the proceedings of the Assembly relating to the speech of Shri Maheswar Prasad Narain Sinha, M.L.A., expunged portions of whose speech were also published in derogation to the orders of the Speaker passed in the House on the 30th May, 1957, and that they be further directed to be in attendance at the meeting or meetings of the Committee on such date or dates as may be fixed by the Committee for consideration of the case against them." On August 18, 1958, the petitioner was served with a notice dated August 14,1958, issued by respondent 3, the Secretary to the Bihar Legislative Assembly, calling upon the petitioner to show cause, on or before September 8, 1958, why appropriate action should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of the offending publication. It is necessary, in view of one of the points taken by the learned advocate for the petitioner, to set out the full text of this notice which was thus worded:832 "Government of Bihar, Legislative Assembly Secretariat.
Confidential No. 3538-1A.
From Shri Enayetur Rahman, B.A., B.L., Secretary to the Legislative Assembly.
To Shri M. S. M. Sharma, Editor, " The Searchlight Searchlight Press, Patna.
Patna, August 13/14, 1958.
Whereas a question involving breach of privilege of the Bihar Legislative Assembly arising out of the publication of a news item in the Searchlight, dated the 31st May, 1957, under the caption " Bitterest attack on Chief Minister", was raised in the Assembly by Shri Nawal Kishore Sinha, M. L. A.
(Patna) on the 10th June, 1957, and whereas the same, having been referred to the Committee of Privileges for examination, investigation and report, was considered by the Committee which has been pleased to find a prima facie case of breach of privilege made out against you.
You are hereby directed to show cause, if any, on or before the 8th September, 1958, why appropriate action should not be recommended against you for breach of privilege of the Speaker and the Assembly. Please also take notice that the question will come up for examination by the Committee on the 8th September, 1958, at 11 am. in the Official Sitting Room (Ground Floor) of the Assembly Buildings, Patna, and thereafter on such day or days and at such time and 833 place as the Committee may from time to time appoint. You are also informed that if the matter comes to evidence, you can, if you so choose, adduce evidence, both oral and documentary, relevant to the issue, and you must come prepared with the same on the date fixed in this behalf.
Sd. Enayetur Rehman, Secretary to the Legislative Assembly." Finding that things had begun to move and apprehending an adverse outcome of the enquiry to be held by the Committee of Privileges (respondent 2), the petitioner moved the High Court at Patna under Art. 226 for an appropriate writ;, order or direction restraining and prohibiting the respondents from proceeding further with the enquiry referred to above. It appears that on August 29, 1958, the Art. 226 petition came up for preliminary hearing and after it had been urged for a day and a half before the High Court for admission, the petitioner on September 1, 1958, withdrew that petition allegedly " with a view to avail the fundamental rights granted to him under Art. 32 of the Constitution." The present petition under Art. 32 of the Constitution was filed on September 5, 1958. The petitioner contends that the said notice and the proposed action by the Committee of Privileges (respondent 2) are in violation of the petitioner's fundamental rights to freedom of speech and expression under Art. 19(1)(a) and to the protection of his personal liberty under Art. 21 and the petitioner claims by this petition to enforce those fundamental rights.
An affidavit in opposition affirmed by Shri Enayatur Rahman, the present incumbent of the office of respondent 3, has been filed on behalf of the respondents wherein it is maintained that the report contained in the offending publication was not in accordance with the authorised report of the proceedings in the House in that it contained even those remarks which, having been, by order of the Speaker, directed to be expunged, did not form part of the proceedings.
105 834 It is claimed that generally speaking proceedings in the House are not in the ordinary course of business meant to be published at all and that under no circumstances is it permissible to publish the parts of speeches which had been directed to be expunged and consequently were not contained in the official report. Such Publication is said to be a clear breach of the privilege of the Legislative Assembly, which is entitled to protect itself by calling the offender to book and, if necessary, by meting out suitable punishment to him. This claim is sought to be founded on the provisions of cl. (3) of Art. 194 which confers on it all the powers, privileges and immunities enjoyed by the House of Commons of the British Parliament at the commencement of our Constitution.
Learned advocate for the petitioner relies upon Art.
19(1)(A) and contends that the petitioner, as a citizen of India, has the right to freedom of speech and expression and that, as an editor of a newspaper, he is entitled to all the benefits of freedom of the Press. It is, therefore, necessary to examine the ambit and scope of liberty of the Press generally and under our Constitution in particular.
In England freedom of speech and liberty of the Press have been secured after a very bitter struggle between the public and the Crown. A short but lucid account of that struggle will be found narrated in the Constitutional History of England by Sir Thomas Erskine May (Lord Farnborough), Vol.
11, ch. IX under the heading " Liberty of Opinion ". In the beginning the Church is said to have persecuted the freedom of thought in religion and then the State suppressed it in politics. Matters assumed importance when the art of printing came to be developed. The Press was subjected to a rigorous censorship. Nothing could be published without the imprimatur of the licenser and the publication of unlicensed works was visited with severe punishments. "Political discussion was silenced by the licenser, the Star Chamber, the dungeon, the pillory, mutilation and branding." Even in the reign of Queen Elizabeth printing was interdicted save in London, Oxford and Cambridge. " Nothing marked more deeply the tyrannical spirit 835 of the first two Stuarts than their barbarous persecutions of authors, printers and the importers of prohibited books:
nothing illustrated more signally the love of freedom than the heroic courage and constancy with which those persecutions were borne " (1). There was no mention of freedom of speech or of liberty of the Press in the Petition of Rights of 1628. The fall of the Star Chamber augured well for the liberty of the Press, but the respite was short lived, for the Restoration brought renewed trials upon the Press. The Licensing Act (13 & 14 Chs. 11 c. 33) placed the entire control of the Press in the Government. Liberty of the Press was interdicted and even news could not be published without licence. Then came the Revolution of 1688; but even in the Bill of Rights of 1688 there was no mention of freedom of speech or of liberty of the Press. In 1695, however, the Commons refused to renew the Licensing Act and the lapse of that Act marked the triumph of the Press, for thenceforth the theory of free Press was recognised and every writing could be freely published, although at the peril of the rigorous application of the law of libel. William Blackstone in his 4th Book of Commentaries published in 1769 wrote at p. 145:" The liberty of the Press is indeed essential to the nature of a free State; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the Press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity." Halam in his Constitutional History of England expresses the same view by saying that liberty of the Press consists merely in exemption from the licenser. To the same effect are the observations of Lord Mansfield, C. J., in King v.
Dean of St. Asaph (2). The liberty of the Press, therefore, primarily consists in (1) May's Constitutional History of England, Vol. ii PP. 240-41.
(2) (1784) 3 Tr. 428.
836 printing without any previous license subject to the consequences of law. It is, in substance, a mere application of the general principle of the rule of law, namely, that no man is punishable except for a distinct breach of the law (1). It was thus, as a result of a strenuous struggle, that the British people have at long last secured for themselves the greatest of their libertiesthe liberty of opinion.
In the United States of America freedom of speech and liberty of the Press have been separately and specifically safeguarded in the Constitutions of most of the different States. Portions of the Constitutions of the 48 federating States, relevant for our purpose, have been collected in Cooley's Constitutional Limitations, Vol. 11, ch. 12, pp.
876-880. Fifteen States, only, namely, Alabama, Arizona, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, North Dakota, Oregon, South Dakota, Washington and Wyoming do not specifically refer to liberty of the Press but content themselves by providing for freedom of speech. The Constitutions of the rest of the federating States separately and 'Specifically mention liberty of the Press in addition to freedom of speech. The first Amendment of the federal Constitution of the United States, which was ratified in 1791, provides that " Congress shall make no law........... abridging the freedom of speech or of the Press ". The Fifth and the Fourteenth Amendments also protect people from being deprived of life, liberty or property without due process of law.
Prior the advent