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TMI Blog1964 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such a nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon. 2. It appears that on March 14, 1964, the Speaker of the Legislative Assembly of Uttar Pradesh administered, in the name of and under the orders of the Legislative Assembly (hereinafter referred to as "the House"), a reprimand to Keshav Singh, who is a resident of Gorakhpur, for having committed contempt of the House and also for having committed a breach of the privileges of Narsingh Narain Pandey, a member of the House. The contempt and the breach of privileges in question arose of a pamphlet which was printed and published and which bore the signature of Keshav Singh along with the signature of other persons. In pursuance of the decision taken by the House later on the same day, the Speaker directed that Keshav Singh be committed to prison for committing another contempt of the House by his conduct in the House when he was summoned to receive the aforesaid reprimand and for writing a disrespectful letter to the Speaker of the House earlier. According to this order, a warrant was issued over the signature of the Speaker of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition was admitted and notice was ordered to be issued to the respondents with the additional direction that the case should be set down for hearing as early as possible. This happened on March 19, at 3 P.M. 5. On March 20, 1964, Mr. Shri Rama, the Government Advocate, wrote to Mr. Nigam, Secretary to Government U.P., Judicial Department, Lucknow, giving him information about the Order passed by the High Court on Keshav Singh's application. In this communication, Mr. Shri Rama has stated that after the matter was mentioned to the Court at 2 P.M. it was adjourned to 3 P.M. at the request of the parties; soon thereafter Mr. Kapur contacted Mr. Nigam on the phone, but while the conversation was going on, the Court took up the matter at 3 P.M. and passed the Order directing the release of Keshav Singh on terms and conditions with have already been mentioned. Mr. Shri Rama sent to Mr. Nigam three copies of the application made by Keshav Singh and suggested that arrangement should be made for making an appropriate affidavit of the persons concerned. He also told Mr. Nigam that the application was likely to be listed for hearing at a very early date. 6. Instead of complying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... developments had given rise to a very serious problem a Full Bench of the Allahabad High Court consisting of 28 Judges took up on the same day the petitions presented before them by their two colleagues at Lucknow, directed that the said petitions should be admitted and ordered the issued of notices against the respondents restraining the Speaker from issuing the warrant in pursuance of the direction of the House given to him on March 21, 1964, and from securing execution of the warrant if already issued, and restraining the Government of U.P. and the Marshal of the House from executing the warrant. 9. Meanwhile, on March 25, 1964, Mr. Solomon, the learned Advocate of Keshav Singh, presented a similar petition to the High Court under Art, 226. He prayed for a writ of mandamus on the same lines as the petitions filed by the two learned Judges, and he urged that suitable order should be passed against the House, because it has committed contempt of Court. To his petition Mr. Solomon had impleaded seven respondents; they were : the Speaker of the House, Mr. Verma : the Legislative Assembly, U.P.; the Marshal of the U.P. Legislative Assembly; Mr. Saran and Mr. Ahmad, Members of the Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law regarding the powers and jurisdiction of the High Court and its Judges in relation to the State Legislature and its officers and regarding the powers, privileges and immunities of the State Legislature and its members in relation to the High Court and its Judges in the discharge of their duties. The President was also satisfied that the questions of law set out in his Order of Reference were of such a nature and of such public importance that it was expedient to obtain the opinion of this Court on them. That is the genesis of the present reference. 14. The questions referred to this Court under this Reference read as follows :- (1) Whether, on the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh consisting of the Hon'ble Mr. Justice N. U. Beg and the Hon'ble Mr. Justice G. D. Sahgal, to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Keshav Singh on bail pending the disposal of his said peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advisory opinion of this Court under Art. 143(1). In our opinion, this contention is wholly misconceived. The words of Art. 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact which has arisen or which is likely to arise, provided it appears to the President that such a question is of such a nature or of such public importance that it is expedient to obtain the opinion of this Court upon it. It is quite true that under Art. 143(1) even if questions are referred to this Court for its advisory opinion, this Court is not bound to give such advisory opinion in every case. Art. 143(1) provides that after the questions formulated by the President are received by this Court, it may, after such hearing as it thinks fit, report to the Precedent its opinion thereon. The use of the word "may" in contrast with the use of the word "shall" in the provision prescribed by Art. 143(2) clearly brings out the fact that in a given case, this Court may respectfully refuse to express its advisory opinion if it is satisfied that it should not express its opinion having regard to the nature of the questions f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to this Court to obtain the advisory opinion of this Court on the question about the validity and constitutionality of the material provisions of the Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947, and the Part C States (Laws) Act, 1951 (In re : the Delhi Laws Act, 1912, [1951] S.C.R. 747). The second Special Reference (In re : the Kerala Education Bill, 1957, [1959] S.C.R. 995) was made in 1958. This had reference to the validity of certain provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly, but had been reserved by the Governor for the consideration of the President. The third Special Reference (In re : the Berubari Union, ) was made in 1959, and it invited the advisory opinion of this Court in regard to the validity of the material provisions of an agreement between the Prima Ministers of India and Pakistan which was described as the Indo-Pakistan Agreement. The fourth Special reference (In re : the Bill to Amend Sea Customes Act etc. ) By this reference, the President forwarded for the advisory opinion of this Court questions in regard to the validity of the relevant provisions of a draft Bill wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional significance. It is with a view to confer jurisdiction on this Court to decline to answer questions for such strong and compelling reasons that the Constitution has used the word 'may' in Art. 143(1) as distinct from Art. 143(2) where the word used is 'shall'. In the present case, we are clearly of opinion that the questions formulated for our advisory opinion are questions formulated for our advisory opinion are questions of grave constitutional importance and significance and it is our duty to make a report to the President embodying our answers to the questions formulated by him. 20. That takes us to the merits of the controversy disclosed by the question formulated by the President for our advisory opinion. This Reference has been elaborately argued before us. The learned Attorney-General opened the proceedings before us and stated the relevant facts leading to the Reference, and indicated broadly the rival contentions which the House and the High Court sought to raise before us by the statements of the case filed on their behalf. Mr. Seervai, the learned Advocate-General of Maharashtra, appeared for the House and presented before the Court a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in the nature of a judicial adjudication between the parties before the Court as such. 22. The same stand was taken by Mr. Seervai in regard to Art. 194 of the Constitution. Art. 194(3) deals with the question about the powers, privileges and immunities of the Legislatures and of the Members and Committees thereof. We will have occasion to deal with the provisions of this Article later on. For the present, it is enough to state that according to Mr. Seervai, it is the privilege of the House to construe the relevant provisions of Art. 194(3) and determine for itself what its powers, privileges and immunities are, and that being so, the opinion expressed by this Court on the questions relating to the existence and extent of its powers and privileges will not preclude the House from determining the same questions for itself unfettered by the views of this Court. 23. Having thus made his position clear in regard to the claim which the House proposes to make in respect of its powers and privileges, Mr. Seervai contended that even in England this dualism between the two rival jurisdictions claimed by the Judicature and the Parliament has always existed and it still continues to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider whether the reasons set out in the warrant amount to contempt or not. To this limited extent, the jurisdiction of the Judicature is recognised and consistently, for the last century, whenever it became necessary to justify the orders passed by it for its contempt, a return has always been filed in courts. Mr. Seervai, however, emphasises the fact that even as a result of this large measure of agreement between the Judicature and the House of Commons on the question about the mature and extent of privilege, it appears to be taken as settled that if an unspeaking or general warrant is issued by the House of Commons to punish a person who is guilty of its contempt, the courts would invariably treat the said general warrant as conclusive and would not examine the validity of the order passed by the House. In the present case, according to Mr. Seervai, the resolution which has been passed by the House against the two learned Judges as well as against Mr. Solomon is in the nature of a general resolution and though the warrants issued against the Judges have been withdrawn, it is clear that the decision of the House and the warrants which were initially ordered to be issued i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Art. 194(3) is thus read, it would appear that there is no scope for introducing any antinomy or conflict or dualism between the powers of the High Court and those of the House in relation to matters which have given rise to the present questions. He further urges that it would be idle for the House to adopt an attitude which the House of Commons in England appears to have adopted in the 17th, 18th and 19th centuries when conflicts arose between the said House and the Judicature. For more than a century no attempt has been made by the House of Commons, says Mr. Setalvad, to contend that if a citizen who is punished by the House for its alleged contempt committed by him would be guilty of another contempt if he moved the Court in its habeas corpus jurisdiction, nor has any attempt been made during this period by the House of Commons to proceed against a lawyer who presents an application for habeas corpus or against Judges who entertain such applications; and so, the argument is that we ought to deal with the present dispute on the basis of the common agreement which has, by convention, been evolved between the two august and powerful institutions, the Judicature and the Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of a general warrant, the High Court has no jurisdiction to go behind the warrant; and in the present case, since it has entertained the petition and passed an order case, since it has entertained the petition and passed an order releasing Keshav Singh on bail without examining the warrant, and even before a return was filed by the respondents, it has acted illegally and without jurisdiction, and so the learned Judges of the High Court, the Counsel, and the party are all guilty of contempt of the House. Mr. Seervai urges that in any case, in habeas corpus proceedings of this character, the High Court had no jurisdiction to grant interim bail. 29. It is not seriously disputed by Mr. Setalvad that the House has the power to inquire whether its contempt has been committed by anyone even outside its four-walls and has the power to impose punishment for such contempt; but his argument is that having regard to the material provisions of our Constitution, it would not be open to the House to make a claim that its general warrant should be treated as conclusive. In every case where a party has been sentenced by the House for contempt and detained, it would be open to him to move the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature." 31. It will be noticed that the first three material clauses of Art. 194 deal with three different topics. Clause (1) makes it clear that the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the Legislature. While interpreting this clause, it is necessary to emphasise that the provisions of the Constitution subject to which freedom of speech has been conferred on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. The rules and standing orders may regulate the procedure of the Legislature and some of the provisions of the Constitution may also purport to regulate it; these are, for instance, Articles 208 and 211. The adjectival clause "regulating the procedure of the Legislature" governs both the preceding clauses relating to "the provisions of the Constitution" and "the rules and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedom is literally absolute and unfettered. 33. That takes us to clause (3). The first part of this clause empowers the Legislatures of States to make laws prescribing their powers, privileges and immunities; the latter part provides that until such laws are made, the Legislatures in question shall enjoy the same powers, privileges and immunities which the House of Commons enjoyed at the commencement of the Constitution. The Constitution-makers must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by clause (3), are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3). 34. This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma v. Shri Sri Krishna Sinha & Others ([1959] Supp. 1 S.C.R. 806). 37. The implications of the first part of clause (3) may, however, be examined at this state. The question is, if the Legislature of a State makes a law which prescribed its powers, privileges and immunities, would this law be subject to Art. 13 or not ? It may be recalled that Art. 13 provides that laws inconsistent with or in derogation of the fundamental rights would be void. Clause (1) of Art. 13 refers in that connection to the laws in force in the territory of India immediately before the commencement of the Constitution, and clause (2) refers to laws that the State shall make in future. Prima facie, if the legislature of a State were to make a law in pursuance of the authority conferred on it by clause (2) of Art. 13 would render it void if it contravenes or abridges the fundamental rights guaranteed by Part III. As we will presently point out, that is the effect of the decision of this Court in Pandit Sharma's ([1959] Supp. 1 S.C.R. 806) case. In other words, it must not be taken as settled that if a law is made under the purported exercise of the power conferred by the first part of clause (3), it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be claimed by the House; and so, at the very threshold of our discussion, we must decide this question. 39. In dealing with this question, it is necessary to bear in mind one fundamental feature of a federal constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England is having a right to override or set aside the legislation of Parliament; and that the right or power of Parliament extends to every part of the Queen's dominions (Dicey, The Law of the Constitution 10th ed. pp. xxxiv, xxxv). On the other hand, the essential characteristic of federalism is "the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with an independent of each others." The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nisters, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense. 42. There is another aspect of this matter which must also be mentioned; whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative functions, and the functions and authority of the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country. 44. But when, as in the present case, a controversy arises between the House and the High Court, we must deal with the problem objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference and though its consideration may present some difficult aspects, we must attempt to find the answers as best we can. In dealing with a dispute like the present which concerns the jurisdiction, the dignity and the independence of two august bodies in a State, we must remember that the objectively of our approach itself may incidentally be on trial. It is, therefore, in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the questions framed for our advisory opinion. If ultimately we com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of is members in cases of doubt (Ibid, p. 175). This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. 46. In construing the relevant provision of Art. 194(3), we must deal with the question in the light of the previous decision of this Court in Pandit Sharma's ([1959] Supp. 1 S.C.R. 806) case. It is, therefore, necessary to recall what according to the majority decision in the case, is the position of the provision contained in Art. 194(3). In that case, the Editor of the English daily newspaper, Search Light of Patna, had been called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly in that he had published in its entirety the speech delivered in the Assembly by a Member, portions of which had been directed to be expunged by the Speaker. The Editor who moved this Court under Art. 32, contended that the said notice and the action p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental right of freedom of speech conferred by Art. 19(1)(a) when exercised in the State Legislatures, but Art. 194(3) does not, in terms, purport to be an exception to Art. 19(1)(a). This argument was also rejected by both he majority decision that clause (1) of Art. 194 no doubt makes a substantive provision of the said clause subject to the provisions of the Constitution; but in the context, those provisions cannot take in Art. 19(1)(a), because this latter article does not purport to regular the procedure of the legislature and it is only such provisions of the Constitution which regulate the procedure of the legislature which are included in the first part of Art. 194(1). 50. The third argument urged by the petitioner was that Art. 19 enunciates a transcendental principle and should prevail over the provisions of Art. 194(3), particularly because these latter provisions were of a transitory character. This contention was rejected by the majority view, but was upheld by the minority view. 51. The fourth argument urged was that if a law is made by the legislature prescribing its powers, privileges and immunities, it would be subject to Art. 13 of the Constitution and woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art III, the latter must always yield to the former. The majority decision, therefore, must be taken to have settled that Art. 19(1)(a) would not apply, and Art. 21 would. 55. Having reached this conclusion, the majority decision has incidentally commenced on the decision in Gunupati Keshavram Reddy's case. Apart from the fact that there was no controversy about the applicability of Art. 22 in that case, we ought to point out, with respect, that the comment made by the majority judgment on the earlier decision is partly not accurate. In that case, a Constitution Bench of this Court was concerned with the detention of Mr. Mistry's under an order passed by the Speaker of the Uttar Pradesh Legislative Assembly for breach of privilege of the said Assembly. The validity of Mr. Mistry's detention was challenged on the ground that it had contravened Art. 22(2) of the Constitution. The facts alleged in support of this plea were admitted to be correct by the Attorney-General, and on those admitted facts, the Court held that Mr. Mistry's detention was clearly invalid. Referring to this decision, the majority judgment has observed that it "proceeded entirely on a concess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a law will have to be treated as a law within the meaning of Art. 13. That is the view which the majority decision expressed in the case of Pandit Sharma ([1959] Supp. 1 S.C.R. 806), and we are in respectful agreement with that view. Mr. Seervai attempted to support his contention by referring to some observations made by Venkatarama Aiyar J. in Ananthakrishnan v. State of Madras (I.L.R. Mad. 933, 951). In that case, the learned Judge has observed that "[Art. 13] applies in terms only to laws in force before the commencement of the Constitution and to laws to be enacted by the States, that is, in future. It is only those two classes of laws that are declared void as against the provisions of Part III. It does not apply to the Constitution itself. It does not enact that the other portions of the Constitution should be void as against the provisions the Part III and it would be surprising if it did, seeing that all of them are parts of one organic whole." This principle is obviously unexceptionable. This principle could have been invoked if it had been urged before us that either the first or the second part of Art. 194(3) itself is invalid because it is inconsistent wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the right conferred by Part III and for any other purpose. It is hardly necessary to emphasise that the language used by Art. 226 in conferring power on the High Courts is very wide. Art. 12 defines the "State" as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Art. 226(1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Art. 226(1) read by itself, does not seem to permit such a plea to be raised, Art, 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Art. 194(3), those rules must be subject to the fundamental rights of the citizens. 61. Similarly, Art. 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art. 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, Mr. Seervai has argued that the effect of the provisions contained in Art. 211 should not be exaggerated. He points out that Art. 211 appears in Chapter III which deals with the State Legislature and occurs under the topic "General Procedure", and so, the only object which it is intended to serve is the regulation of the procedure inside the chamber of the Legislature. He has also relied on the provisions of Art. 194(2) which expressly prohibit any action against a member of the Legislature for anything said or any vote given by him in the Legislature. In other words, if a member of the Legislature contravenes the absolute prohibition prescribed by Art. 211, no action can be taken against him a court of law and that, says Mr. Seervai, shows that the significance of the prohibition prescribed by Art. 211 should not be overrated. Besides, as a matter of construction, Mr. Seervai suggests that the failure to comply with the prohibition contained in Art. 211 cannot lead to any constitutional consequence, and in support of this argument, he has relied on a decision of this Court in State of U. P. v. Manbodhan Lal Srivastava ([1958] S.C.R. 533). In that case, this Court wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith such a question, the Speaker to may have to consider whether the observations which a member wants to make are in relation to the conduct of a Judge in discharge of his duties, and in that sense, that is a matter for the Speaker to decide. But the significant fact still remains that the Constitution-makers though it necessary to make a specific provision by Art. 194(2) and that is the limit to which the Constitution has gone in its objective of securing complete freedom of speech and expression within the four-walls of the legislative chamber. 66. The latter part of Art. 194(3) makes no such exception, and so, it would be logical to hold that whereas a speech made in contravention of Art. 211 is protected from action in a court by Art. 194(2), no such exception or protections is provided in prescribing the powers and privileges of the House under the latter part of Art. 194(3). If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt, and the House proceeds to take action against the Judge in that behalf, such action on the part of the House cannot be protected or justified by any specific provision ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (People v. De Renna (2 N.Y.S.) (2) 694, 166 Misc. (582) cited in Crawford, Statutory Construction p. 516) These principles would clearly negative the construction for which Mr. Seervai contends. It is hardly necessary to refer to other provisions of the Judicature in this country. The existence of a fearless and independent judiciary can be said to be the very basic foundation of the constitutional structure in India, and so it would be idle, we think, to contend that the absolute prohibition prescribed by Art. 211 should be read as merely directory and should be allowed to be reduced to a meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his duties. Therefore, we are satisfied that Mr. Setalvad is right when he contends that whatever may be the extent of the powers and privileges conferred on the House by the latter part of Art. 194(3), the power to take action against a Judge for contempt alleged to have been committed by him, by his act in the discharge of his duties cannot be included in them. Thus, Mr. Setalvad's case is that so far as the Judges are concerned, the position is quite clear that as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore convenient to reserve the term "privilege" to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are "absolutely necessary for the due execution of its powers". They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity (May"s Parliamentary Practice pp. 42-43). 70. May points out that except in one respect, the surviving privileges of the House of Lords and the House of Commons are justifiable on the same ground of necessity as the privileges enjoyed by legislative assemblies of the self-governing Dominions and certain British colonies, under the common law as a legal incident of their legislative authority. This exception is the power to punish for contempt. Since the decision of the Privy Council in Kielley v. Carson (4 Moore P. C. 63) it has been held that this power is inheren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no doubt that by its resolutions, the House of Commons cannot add to the list of its privileges and powers. 72. It would be relevant at this stage to mention broadly the main privileges which are claimed by the House of Commons. Freedom of speech is a privilege essential to every free council or legislature, and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament. It is remarkable that notwithstanding the repeated recognition of this privilege, the Crown and the Commons were not always agreed upon its limits. This privilege received final statutory recognition after the Revolution of 1688. By the 9th Article of the Bill of Rights, it was declared "that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament"(Ibid., p. 52). 73. Amongst the other privileges are : the right to exclude strangers, the right to control publication of debates and proceedings, the right to exclusive cognizance of proceedings in Parliament, the right of each Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revealed the importance of the judicial elements in the origins of Parliament. Maitland, in his introduction to the Parliament Roll of 1305, was the first to emphasise the importance of the fact that Parliament at that time was the King's "great court" and was thereby (among other things) the highest court of royal justice. There is now general agreement in recognising the strongly judicial streak in the character of the earliest Parliaments and the fact that, even under Edward III, although Parliaments devoted a considerable part of their time to political and economic business, the dispensation of justice remained one of their chief functions in the eyes of the King's subjects" (May"s Parliamentary Practice, pp. 3-4). As is well-known, the Parliament of the United Kingdom is composed of the Sovereign, the House of Lords, and the House of Commons. These several powers collectively form the Legislature;land, as distinct members of the constitution, they exercise functions and enjoy privileges peculiar to each. 77. The House of Lords, Spiritual land Temporal, sit together, and jointly constitute the House of Lords (Ibid, pp. 8-9). The exact date of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given for good conduct; and their customary form of commitment is by attachment. The Commons, on the other hand, commit for no specified period, and during the last two centuries have not imposed fines. There can be no question that the House of Lords, in its judicial capacity, is a court of record; but, according to Lord Kenyon, 'when exercising a legislative capacity, it is not a court of record'. Whether the House of Commons be, in law, a court of record, it would be difficult to determine; for this claim, once firmly maintained, has latterly been virtually abandoned, although never distinctly renounced" (Ibid., p. 90). This last comment made by May would be of decisive significance when we later have occasion to deal with the question as to whether the privilege claimed by Mr. Seervai that a general warrant cannot be examined by courts is a part of the privilege itself, or is the result of convention established between the courts and the House of Commons. 79. Let us then briefly indicate, in the words of may, the general features of the power of commitment possessed by the House of Commons. "The power of commitment", says May,"is truly describe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of courts of law in matters of privilege. May says, it would require a separate treatise to deal adequately with a subject which raises incidentally such important questions of constitutional law. According to him, in cases affecting parliamentary privilege the tracing of a boundary between the competence of the courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases, particularly from the seventeenth to the nineteenth centuries. It has been common ground between the Houses and the courts that privilege depends on the "known laws and customs of Parliament", and not on the ipse dixit of either House. The question in dispute was whether the law of Parliament was or part of the common law in its wide and extended sense, and in the former case whether it was a superior law which overrode the common law. Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely by the House which it concerned, even when the rights third parties were involved, or whether it might in certain c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, "there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect" and May describes these general conclusions in the following words : (1) It seems to be recognized that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the king and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly. (2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts. On the other hand, the courts admit :- (3) That the control of each House over its internal proceedings is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radually developed in England. 87. For our purpose, the story can be said to being in the year 1677 when the Court of King's Bench had occasion to deal with a part of this problem in The Earl of Shaftesbury's case (86 E.R. 792); it develops from time to time when some aspect or the other of this problem of parliamentary privileges came before the courts at Westminster until we reach 1884 when the case of Bradlaugh v. Gossett (L.R. 12 Q.B.D. 721) was decided. 88. Let us then begin with Shaftesbury's case. In that case, the Earl of Shaftesbury was committed to the Tower of London under an order of the House of Lords which directed the constable of the Tower of London to receive him and keep him in safe custody during the pleasure of the House "for high contempts committed against this House; and this shall be a sufficient warrant on that behalf." The Earl of Shaftesbury took the mater before the Court of Kings' Bench on a writ of habeas corpus and urged that the committal of the Earl was unjustified in law because the general allegation of "high contempts" too uncertain for the court to sustain. It was also argued on his behalf that in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everely criticised by all prominent writers on constitutional law in England and it would be fairly accurate to that it has been regarded as an unfortunate and regrettable episode in the history of the House of Commons. It is somewhat ironical that what happened as long ago as 1689 is attempted to be done by the House in the present proceedings 14 years after this country has been used to a democratic way of life under a written Constitution ! 90. Before we part with this case, however, it would be material to indicate briefly how succeeding Judges have looked at this conduct of the House of Commons. In Sir Francis Burdett v. Abbot (104 E.R. 501, 541), Lord Ellenborough C.J., observed : "It is surprising upon looking at the record in that case how a Judge should have been questioned, and committed to prison by the House of Commons, for having given a judgment, which no Judge whoever sat in this place could differ from", and he added that the Attorney-General who had appeared in Burdett had conceded that probably the matter was not so well understood at that time, whereupon Lord Ellenborough observed that it was after the Revolution, which makes such a commitment for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is agreed that the persons for whom the plaintiff voted were elected; so that the action is brought for being deprived of his vote." (Ibid,. 137) He conceded that the court ought not to encroach or enlarge its jurisdiction; but he thought that the court must determine on a charter granted by the King, or on a matter of custom or prescription, when it comes before the court without encroaching on the Parliament. His conclusion was that if it be a matter with the jurisdiction of the Court, "we are bound by our oaths to judge of it"(Ibid,. 138). This decision, however, has nothing to do with the question of contempt. 94. The next case which deals with the question of contempt of the House of Commons, is R. v. Paty ((1704) 92 E.R. 232). In that case, Paty and four others were committed to Newgate by warrant issued by the Speaker of the House. The warrant was speaking warrant and showed that the persons detained had committed contempt of the jurisdiction of the House and open breach of its known privileges. The validity of this warrant was challenged by the said persons on the ground that it suffered from many infirmities. The majority decision in the case, however, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to kneel, when brought up to the bar of the House. It was declared by the House that the refusal of Murray to kneel was "a most dangerous contempt of privilege". When a petition for habeas corpus was moved before the Court, it was rejected on the ground that "the House of Commons was undoubtedly a High Court and that it was agreed on all hands that they have power to judge to their own privileges, and it need not appear to us what the contempt was, for if it did appear, we could not judge thereof." That is the view expressed by Justice Wright. The learned Judge also added that the House of Commons was superior to his own Court, and that his Court could not admit to bail person committed for a contempt in any other Court in Westminster Hall. Dennison J. agreed and expressed his opinion that the Court at Westminster Hall was inferior to the House of Commons with respect to Judging of their privileges and contempts against them. This case again proceeds on the basis that the House of Commons is a superior court, and as such its warrants cannot be examined. 96. The next relevant case in point of time is Brass Crosby (95 E.R. 1005) Brass Crosby was Lord Mayor of Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution to uphold the House of Commons, even though it should have abused it power (Stockdale v. Hansard, 112 E.R. 1112, 1158)." 98. The next important decision on this topic is sir Francis Burdett's case (104 E.R. 501). This case arose out of an action of trespass which Sir Francis Burdett commenced against the Speaker of the House of Commons for breaking and entering his house, and imprisoning him in the Tower. The plea raised in defence was that the conduct of the defendant was justified by an order of the House for Burdett's committal after the House had adjudicated that he had been guilty of a contempt of the House by publishing a libellous and scandalous paper reflecting on the just rights and privileges of the House. The case was elaborately argued and as May points out : "This case provides one of the principal authorities for the Commons' power (as Lord Shaftesbury's case does for the Lords') to commit for contempt (May's Parliamentary Practice, p. 159)." the warrant in this case was a speaking warrant and the contempt was the contempt of the House of Commons. The plea made by Burdett was rejected, but the reasons given for reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the House of Commons, Lord Ellenborough made it clear that this convention would be subject to the exception that wherever it appeared from the return or otherwise that the commitment was palpably unjust, the court would not be powerless to give relief to the party. 100. This case went in appeal before the Court of Exchequer and the decision under appeal was confirmed. It appears that before the appellate decision was pronounced, Lord Eldon proposed to their Lordships that the counsel for the defendants should not be heard until they received the advice of the Judges on the question which he formulated. This question was : "Whether, if the Court of Common Pleas, having adjudged an act to be a contempt of Court, had committed for the contempt under a warrant, stating such stating such adjudication generally without the particular circumstances, and the matter were brought before the Court of King's Bench, by return to a writ of habeas corpus, the return setting forth the warrant, stating such adjudication of contempt generally; whether in that case the Court of King's Bench would discharge the prisoner, because the particular facts and circumstances, out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary Practice, p. 159)." Incidentally, it may be added that as a result of this controversy, the Parliament ultimately passed the Parliamentary Papers Act, 1840, which overruled this view. 102. Not deterred by the adverse verdict of the jury on the merits, Stockdale began another action. Before this action was commenced, the House of Commons had passed a resolution in 1837 reaffirming its privileges, and expressing its deliberate view that for any court to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament. Nevertheless, in this second action brought by Stockdale, the House decided to put in a defence of privilege. This defence was rejected and a decree was passed for payment of damages and costs. Even so, the House of Commons did not act upon its resolutions and refrained from publishing Stockdale and his legal advisers for having taken the matter to a court of law; instead, it decided that the damages and costs be paid under the special circumstances of the case. 103. Encouraged by this result Stockdale brought a third action for another publication of the said report. This t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in proceedings for habeas corpus. Littledale J. concurring with Lord Denman C.J. said : "if the warrant declares the grounds of adjudication, this Court, in many cases, will examine into their validity; but, if it does not, we cannot go into such an inquiry. Here we must suppose that the House adjudicated with sufficient reason; and they were the proper judges". Justice Williams, who also concurred with Lord Denman, thought it necessary to add that "if the return, in a case like this, shewed a frivolous cause of commitment, as for wearing a particular dress, I should agree in the opinion expressed by Lord Ellenborough in Burdett v. Abbot (104 E.R. 501), where he distinguishes between a commitment stating a contempt generally, and one appearing by the return to be made on grounds palpably unjust and absurd. Coleridge J. preferred to put his conclusion on the ground that "[the right of the House of Commons] to adjudicate in this general form in cases of contempt is not founded on privilege, but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment." It is remarkab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament is a superior Court and the general warrants issued by it cannot be subjected to the close scrutiny, just as similar warrants issued by other superior courts of record are held to be exempt from such scrutiny. It would be noticed that the Court of Exchequer has observed in this case that the House of Commons as a part of the High Court of Parliament, is a Supreme Court in this country and is higher than the ordinary courts of law; and this recalls the original judicial character of the House of Parliament in its early career and emphasizes the fact that the House of Lords which is a part of the House of Parliament still continues to be the highest court of law in England. 107. The last case in this series to which we ought to refer is the decision of the Queen's Bench Division in Bradlaugh v. Gossett ((1884) L.R. 12 Q.B.D. 271). This decision is not directly relevant or material but since Mr. Seervai appeared to rely on certain statements of law enunciated by Stephen J., we think it necessary to refer to it very briefly. In the case of Bradlaugh the Court was called upon to consider whether an action could lie against the Serjeant-at-Arms of the House of Commons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in the present proceedings. We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside the fourwalls of the House, and that essentially raises different considerations. 108. Having examined the relevant decisions bearing on the point, it would, we think, not be inaccurate to observe that the right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings has been based more on the consideration that the House of Commons is in the position of a superior court of record and has the right like other superior courts of record to issue a general warrant for commitment of persons found guilty of contempt. Like the general warrant issued by superior courts of record in respect of such contempt, the general warrants issued by the House of Commons in similar situations should be similarly treated. It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the courts in habeas corpus proceedings. In this connection, we ought to add that even while recognizing the validity of such general warrants, Judges have frequently observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the House generally, without specifying what the character of the contempt is." Then he considered the merits of the argument that the relevant Constitution Act did not confer on the Legislative Assembly of Victoria the incidental power of issuing a general warrant, and rejected it. "[Their Lordships] consider", said Lord Cairns, "that there is an essential difference between a privilege of committing for contempt such as would be enjoyed by an inferior Court, namely, privilege of first determining for itself what is contempt, then of stating the character of the contempt upon a Warrant, and then of having that Warrant subjected to review by some superior Tribunal, and running the chance whether that superior Tribunal will agree or disagree with the determination of the inferior Court, and the privilege of a body which determines for itself, without review, what is contempt, and acting upon the determination, commits for that contempt, without specifying upon the Warrant the character or the nature of the contempt." According to Lord Cairns, the latter of the two privileges is a higher and more important one than the former, and he added that it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of law and without having its process interfered with by those courts." ([1896] L.R.A.C. 600, 609) It is the last part of this observation which lends some support to Mr. Seervai's case. All that we need say about this observation is that it purports to be based on two earlier decisions which we have already examined, and that it is not easily reconcilable with the reservations made by some of the Judges who had occasion to deal with this point in regard to their jurisdiction to examine the validity of the imprisonment of a petitioner where it appeared that the warrant issued by the House of Commons appeared on a return made by the House to be palpably frivolous or based on extravagant or fantastic reasons. 113. The last decision on which Mr. Seervai relies is the case of The Queen v. Richards (92 C.L.R. 157). In that case, the High Court of Australia was called upon to construe the provisions of s. 49 which are similar to the provisions of Art. 194(3) of our Constitution. Section 49 reads thus :- "The powers, privileges, and immunities of the Senate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in general terms. In order words, this decision undoubtedly supports Mr. Seervai's contention that a general warrant issued by the House in the present case is not examinable by the High Court. 116. In appreciating the effect of this decision it is necessary to point out that so far as Australia was concerned, the point in issue had been already established authoritatively by the decisions of the Privy Council in Dill v. Murphy (15 E.R. 784 : (1864) 1 Moo P.C. (N.S.) 487) as well as in Hugh Glass. In fact, fact, Dixon C.J. has expressly referred to this aspect of the matter. Naturally, he has relied on the observations made by Lord Cairns in Hugh Glass and has followed the said observations in deciding the point raised before the High Court of Australia. That is the basis which was adopted by Dixon C.J. in dealing with the question. Having adopted this approach, the learned Chief Justice thought it unnecessary to discuss at length the situation in England, because what the situation in England was, had been conclusively determined for the guidance of the Australian courts by the observations made by Lord Cairns in Hugh Glass ([1869-71] 3 L.R.P.C. 560). Even so, he has observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of s. 49 of the Australian Constitution, and as Gwyer C.J. has observed in In re The Central Provinces and Berar Act No. XIV of 1938 ([1939] F.C.R. 18), "there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsafe to assumed that a decision on the of them can be applied without qualification of another." The learned Chief Justice has significantly added that this may be so even where the words or expressions used are the same in both cases for a word or expressions used are the same in both cases for a word or a phrase may take a colour from its context and bear different senses accordingly (p. 38). 118. These observations are particularly relevant and appropriate in the context of the point which we are discussing. Though the words used in s. 49 of the Australian Constitution are substantially similar to the words used in Art. 194(3), there are obvious points on which the relevant pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though this Court always has power to inquire to inquire into the legality of the committal, it will not inquire whether the power has been properly exercised." He, however, added that in the case before him, he was quite satisfied that the application ought to fail on the merits. These observation tend to show that in exercising habeas corpus jurisdiction, a court at Westminster has jurisdiction to inquire into the legality of the commitment even though the commitment has been ordered by another superior court of record. If that be the true position, it cannot be assumed with certainty that Courts at Westminster would today concede to the House of Commons the right to claim that its general warrants are unexaminable by them. 120. Even so, let us proceed on the basis that the relevant right claimed by the House of Commons is based either on the ground that as a part of the High Court of Parliament, the House of Commons is a superior court of record and as such, a general warrant for commitment issued by it for contempt is treated as conclusive by courts at Westminster Hall, or in course of time the right to claim a conclusive character for such a general warrant became ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Chamber. Section 71 of the same Act deals with the Provincial Legislatures and contains similar provisions in its clauses (2), (3) and (4). 122. After the Indian Independence Act, 1947 (10 & 11 Geo. VI, c. 20) was passed, this position was altered by the amendments made in the Government of India Act, 1935 by various amendment orders. The result of the amendment orders including Third Amendment Order, 1948 was that sub-sections (3) and (4) of section 28 of the said Act were deleted and sub-section (2) was amended. The effect of this amendment was that the members of the Federal Chambers of Legislature could until their privileges were defined by Act of Federal Legislature claim the privileges enjoyed by the members of the House of Commons which were in existence immediately before the establishment of the Federation. It is, however, remarkable that he corresponding sub-sections (3) and (4) of section 71 were retained. The question as to where the result of the deletion of sub-sections (3) and (4) and the amendment of sub-section (2) of s. 28 was to confer on the Federal Legislature the same status as that of the House of Commons, does not call for our decision in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lords, and the Judicature was regarded by the House of Commons as a creature of the King and the Judicature was obviously subordinate to the House of Lords which was the main opponent of the House of Commons. This led to fierce struggle between the House of Commons on the one hand, and the King and the House of Lords on the other. There is no such historical background in India and there can be no historical justification for the basis on which the House of Commons struggled to deny the jurisdiction of the Court; that is another aspect of the matter which is relevant in considering the question as to whether the House in the present case can claim the status of a superior Court of Record. 125. There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a Court of Record. A Court of Record, according to Jowitts Dictionary of English Law, is a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority. The House, and indeed all the Legislative Assemblies in Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivilege under Art. 194(3). But, for the moment, we may consider Art. 20. If Art, 21 applies Art. 20 may conceivably apply, and the question may arise, if a citizen complains that his fundamental right had been contravened either under Art. 20 or Art. 21, can he or can he not move this Court under Art. 32 ? For the purpose of making the point which we are discussing, the applicability of Art. 21 itself would be enough. If a citizen moves this Court and complains that his fundamental right under Art. 21 had been contravened, it would plainly be the duty of this Court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. In fact, this question was actually considered by this Court in the case of Pundit Sharma ([1959] Supp. 1 S.C.R. 806). It is true that the answer was made in favour of the legislature; but that is wholly immaterial for the purpose of the present discussion. If in a given case, the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law, but for capricious or mala fide reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case. 130. In In re Parliamentary Privilege Act, 1770 ([1985] A.C. 331), the Privy Council was asked to consider whether the House of Commons would be acting contrary to the Parliamentary Privilege Act, 1770, if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its privileges. The said question had given rise to some doubt, and so, it was referred to the Privy Council for its opinion. The opinion expressed by the Privy Council was in favour of Parliament. Confining its answer to the said limited question, the Privy Council took the precaution of adding that "they express no opinion whether the proceedings referred to in the introductory paragraph were 'a proceeding in Parliament', a question not discussed before them, nor on the question whether the mere issue of a writ would in any circumstances be a breach of privilege." & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 (25 of 1961) confers on all Advocates the statutory right to practise in all courts including the Supreme Court, before any tribunal or person legally authorised to take evidence, and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice. Section 14 of the Bar Councils Act recognises a similar right. If a citizen has the right to move the High Court or the Supreme Courts against the invasion of his fundamental rights, the statutory right of the advocate to assist the citizen steps in and helps the enforcement of the fundamental rights of the citizen steps in and helps the enforcement of the fundamental rights of the citizen. It is hardly necessary to emphasise that in the enforcement of fundamental rights guaranteed to the citizens the legal profession pays a very important and vital role, and so, just as the right of the Judicature to deal with matters brought before them under Art. 226 or Art. 32 cannot be subjected to the powers and privileges of the House under Art. 194(3), so the rights of the citizens to move the Judicature and the rights of the advocates to assist that process must remain unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded to the House of Commons, because as a part of the High Court of Parliament it is itself a superior Court of Record. 135. Before we part with this topic, there are two general considerations which we ought to advert. It has been urged before us by Mr. Seervai that the right claimed by the House to issue a conclusive general warrant in respect of contempt is an essential right for the effective functioning of the House itself, and he has asked us to deal with this matter from this point of view. It is true that this right appears to have been recognised by courts in England by agreement or convention or by considerations of comity; but we think it is strictly not accurate to say that every democratic legislature is armed with such a power. Take the case of the American Legislatures. Article 1, section 5 of the American Constitution does not confer on the American Legislature such a power at all. It provides that each House shall be the judge of the Elections, Returns and Qualifications of its own Members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorised to compel the attendance of absent Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution, Mr. Seervai no doubt invited our attention to the fact that the Committees of Privileges of the Lok Sabha and the Council of States have adopted a Report on May 22, 1954 with a view to avoid any embarrassing or anomalous situations resulting from the exercise of the legislative powers and privileges against the members of the respective bodies, and we were told that similar resolutions have been adopted by almost all the Legislatures in India. But these are matters of agreement, not matters of law, and it is not difficult to imaging that if the same political party is not in power in all the States, these agreements themselves may not prove to be absolutely effective. Apart from his aspect of the matter, in construing the relevant clause of Art. 194(3), these agreements can play no significant part. 137. In the course of his arguments, Mr. Seervai laid considerable emphasis on the fact that in habeas corpus proceedings, the High Court had no jurisdiction to grant interim bail. It may be conceded that in England it appears to be recognised that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt can be said to have exceeded its jurisdiction with the result that the order in question is null and void. Besides, the validity of the order has no relation whatever with the question as to whether in passing the order, the Judges have committed contempt of the House. 139. There is yet one more aspect of this matter to which we may incidentally refer. We have already noticed that in the present case, when the habeas corpus petition was presented before the Lucknow Bench at 2 P.M. on March 19, 1964, both parties appeared by their respective Advocates and agreed that the application should be taken up at 3 P.M. the same day, and yet the House which was impleaded to the writ petition and the other respondents to it for whom Mr. Kapur had appeared at the earlier stage, were absent at that time. That is how the Court directed that notice on the petition should be issued to the respondents and released the petitioner on bail subject to the terms and conditions which have already been mentioned; and it is this latter order of bail which has led to the subsequent developments. In other words, before taking the precipitate action of issuing warrants against the Judges of the Lucknow Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrant the Court had no authority to make any order of bail. This fact cannot be ignored in dealing with the case of the House that the Judges committed contempt in releasing the petitioner on bail. 140. But we ought to make it clear that we do not propose to base our answers on this narrow view of the matter, because questions 3 and 5 are broad enough and they need answers on a correspondingly broad basis. Besides, the material questions arising from this broader aspect have been fully argued before us, and it is plain that in making the present Reference, the President desires that we should render our answers to all the questions and not exclude from our consideration any relevant aspect on the ground that these aspect would not strictly arises on the special facts which have happened so far in the present proceedings. 141. In conclusion, we ought to add that throughout our discussion we have consistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a Member of the House outside the four-walls of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition. (2) On the facts and circumstances of the case, Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon Advocate, by presenting the said petition, and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Keshav Singh on bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly of Uttar Pradesh. (3) On the facts and circumstances of the case, it was not competent for the Legislative Assembly of Uttar Pradesh to directs the production of the said two Hon'ble Judges and Mr. B. Solomon Advocate, before it in custody or to call for their explanation for its contempt. (4) On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere divided into two broad groups, one supporting the Assembly and the other, the High Court. 146. I shall now state the actual facts which gave rise to the conflict. The Assembly had passed a resolution that a reprimand be administered to one Keshav Singh for having committed contempt of the Assembly by publishing a certain pamphlet libelling one of its members. No question as to the legality of this resolution arises in this case and we are concerned only with what followed. Keshav Singh who was a resident of Gorakhpur, in spite of being repeatedly required to do so, failed to appear before the Assembly which held its sittings in Lucknow, to receive the reprimand alleging inability to procure money to pay the fare for the necessary railway journey. He was thereupon brought under the custody of the Marshal of the Assembly in execution of a warrant issued by the Speaker in that behalf and produced at the Bar of the House on March 14, 1964. He was asked his name by the Speaker repeatedly but he would not answer any question at all. He stood the with his back to the Speaker showing great disrespect to the House and would not turn round to face the Speaker though asked to do so. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and that Keshav Singh be immediately taken into custody and kept confined in the District Jail for the remaining term of his imprisonment and that Beg J., Sahgal J. and B. Solomon be brought in custody before the House, and also that Keshav Singh be brought before the House after he had served the remainder of his sentence. Warrants were issued on March 23, 1964 to the Marshal of the House and the Commissioner of Lucknow for carrying out the terms of the resolution. On the same day, Sahgal J. moved a petition under Art. 226 of the Constitution in the High Court of Uttar Pradesh at Allahabad for a writ of certiorari quashing the resolution of the Assembly of March 21, 1964 and for other necessary writs restraining the Speaker and the Marshal of the Assembly and the State Government from implementing that resolution and the execution of the orders issued pursuant to the resolution. The petition however did not mention that he warrants had been issued. That may have been because the warrants were issued after the petition had been presented, or the issue of the warrant was not known to the petitioner. This petition was heard by all the Judges of the High Court excepting Sahgal and B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the detained citizen. It is said on behalf of the Assembly that it has such a privilege and the interference by the court in the present case was without jurisdiction. The question is then of the privilege of the Assembly, for if it does not possess the necessary privilege, it is not disputed, that what the High Court has done in this case would for the present purposes be unexceptionable. 149. First then as to the privileges of the Assembly. The Assembly relies for purpose on clause (3) of Art. 194 of the Constitution. The first three clauses of that article may at this stage be set out. 150. Art. 194(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, is not the kind of privilege of the House of Commons to which clause (3) of Art. 194 refers. Privileges of the House of Commons have a technical meaning in English Parliamentary Law and the article uses the word in that sense only. That technical sense has been described in these words : "certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions." (May's Parliamentory Practice, 16th ed. p. 42) A point I would like to stress now is that it is of the essence of the nature of the privileges that they are ancillary to the essence of the House of Commons. Another thing which I wish to observe at this stage is that "[s]ome privileges rest solely upon the law and custom of Parliament, while others have been defined by statute. Upon these grounds alone all privileges whatever are founded" (Ibid, p.44). In this case we shall be concerned with the former kind of privilege only. The point to note is that this variety of privilege derives its authority from the law and custom of Parliament. This law has been given the name of Lex Parliamenti. It owes its origin to the custom of parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature. 156. The privilege which I take up first is the power to commit for contempt. It is not disputed that the House of Commons has this power. All the decided cases and text-books speak of such power. "The power of commitment is truly described as the 'keystone of parliamentary privilege'.... without it the privileges of Parliament could not have become self-subsistent, but, if they had not lapsed, would have survived on sufferance." (May, p. 90) In Burdett v. Abbott (104 E.R. 501, 559) Lord Ellenborough C.J. observed, "Could it be expected ....... that the Speaker with his mace should be under the necessity of going before a grand jury to prefer a bill of indictment for the insult offered to the House ? They certainly must have the power of self-vindication land self-protection in their own hands ...." 157. The possession of this power by the House of Commons is, therefore, undoubted. 158. It would help to appreciate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be said that the provision concerning it was bad as our Constitution was based on a division of powers. Such a contention would of course be absurd. The only question, therefore, is whether our Constitution-makers have conferred the power to commit on the Legislatures. The question is not whether they had the power to do so, for there was no limit to their powers. What the Constitution-makers had done can, however, be ascertained only from the words used by them in the Constitution that they made. If those words are plain, effect must be given to them irrespective of whether our Constitution is based on a division of power or not. That takes me to the language used in clause (3) of Art. 194. The words there appearing are "the powers, privileges and immunities of a House ... shall be those the House of Commons". I cannot imagine more plain language than this. That language can only have one meaning and that is that it was intended to confer on the State Legislatures the powers, privileges and immunities which the House of Commons in England had. There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based upon the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear." (92 C.L.R. 157, 167) 162. The similarity in the language of the provisions in the Australian Constitution and our Constitution is striking. It was said however that they were not the same for under s. 49 the Australian Houses might by resolution declare the privileges whereas in our case the privileges had to be defined by law and that in Australia there were no fundamental rights. I confess i do not follow this argument at all. The question is not how the privileges are declared in Australia or what effect fundamental rights have on privileges, but as to the meaning of the words which in the two statutes are identical. In Richard's case (92 C.L.R. 157) an application was made to the Judicial Committee for leave to appeal from the judgment of Dixon C.J. but such leave was refused, Viscount Simonds observing that the judgment of the Australian High Court "is unimpeachable" : Queen v. Richards (92 C.L.R. 157, 171). Reference may also be made to Fielding v. Thomas ([1896] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Parliament was a court. The House of Commons, however, does not seem to have been a part of this Court. In medieval times the legal conception was that the King was the source of all things; justice was considered to flow from him and, therefore, the court of justice was attached to the King. The King's Court thus was a court of law and that is the origin of what is called "the High Court of Parliament". The history of the High Court of Parliament has been summarised in Potter's outlines of English Legal History (1958 ed.) and may be set out as follows : The King's Council, under its older title of Curia Regis, was the mother of the Common law courts, but still retained some judicial functions even after the common law courts had been well-established. (p. 78). Later however in the 14th and 15th centuries it came to held that appeals from the King's Bench lay to the Parliament and not to the Council. But Parliament had a great deal of work to do and could find little time for hearing petitions or even for hearing rules of Error from the King's Bench and this jurisdiction fell into abeyance in the 15th century. It would appear, however, that of this P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en dealt with by authoritative textbook writers in England. At p. 173, after having discussed the tussle between the Commons and the Courts in regard to the privileges of the former and having stated that in theory there is no way of resolving the real point at issue should a conflict between the two arise. May observes, "In practice however there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect." He then adds, "The courts admit :- (3) that the control of each House, over its internal proceedings is absolute and cannot be interfered with by the courts. (4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal." So May treats the right of the House of Commons to commit by a general warrant as one of its privileges and not something to which it is entitled under the common law as of right as a Court of Record. In Cases on Constitutional Law by Keir and Lawson, (4th ed.) p. 126, it is stated that among the undoubted privileges of the House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt on a habeas corpus petition. I have earlier stated that under certain statutes the Assembly claimed the same privileges which the House of Commons possessed. The Supreme Court of Victoria held in favour of Glass. The matter was then taken to the Judicial Committee and it appears to have been argued there that "the privilege is the privilege of committing for contempt merely; that the judging of contempt without appeal, and the power of committing by a general Warrant, are mere incidents or accidents applicable to this Country, and not transferred to the Colony." The words "this Country" referred to England. Lord Cairns rejected this argument with the following observations : "The ingredients of judging the contempt, and committing by a general Warrant, are perhaps the most important ingredients in the privileges which the House of Commons in this Country possesses; and it would be strange indeed if, under a power to transfer the whole of the privileges and powers of the House of Commons, that which would only be a part, and a comparatively insignificant part, of this privilege and power were transferred." (p. 573). He also said, (p. 572) "Bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been shown that they are wrong and, therefore, they are of value at least as persuasive authorities. The fact that the decisions of the Judicial Committee are not binding on us judgments of a superior court is however to no purpose. The real question for our decision is whether the House of Commons possessed a certain privilege. We may either have to take judicial notice of that privilege or decide its existence as a matter of foreign law. It is unnecessary to decide which is the correct view. If the former, under s. 57 of the Evidence Act a reference to the authorised law reports of England would be legitimate and if the latter, then again under s. 38 of that Act a reference to these reports would be justified. So in either case we are entitled to look at these reports and since they contain decisions of one of the highest Courts in England, we are not entitled to say that what they call a privilege of the House of Commons of their country is not a privilege unless other equally high authority taking a contrary view is forthcoming. 169. I now come to some of the English case on which the proposition that the right to commit by a general warrant is not a matter of privilege of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the House of Commons was a superior court. It seems to me that Lord Eldon thought that the House of Commons should be treated the same way as one superior court treated another and wanted to find out how the courts treated each other. I shall later show that this is the view which has been taken of Lord Eldon's decision in other cases. But I will now mention that if Lord Eldon had held that the House of Commons was a court, a constitutional lawyer of Anson's eminence would not have put the matter in the way that I have just read from his work. 170. Then I come to the case of Stockdale v. Hansard (112 E.R. 1112). That case was heard by Lord Denman C.J., Littledale J., Patteson J. and Coleridge J. Lord Denman said, (p. 1168), "Before I finally take leave of this head of the argument, I will dispose of the notion that the House of Commons is a separate Court, having exclusive jurisdiction over the subject-matter, on which, for that reason, its adjudication must be final. The argument placed the House herein on a level with the Spiritual Court and the Court of Admiralty. Adopting this analogy, it appears to me to destroy the defence attempted to the present action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial significance for the reasons hereafter to appear. It is obvious that neither Patteson J. nor Coleridge J. thought that the House of Commons was a Court or possessed any power as such. 175. Next in order of date is the case of the Sheriff of Middlesex (113 E.R. 419). Lord Denman, C.J. said at p. 426 : "Representative bodies must necessarily vindicate their authority by means of their own; and those means lie in the process of committal for contempt. This applies not to the Houses of Parliament only, but [as was observed in Burdett v. Abbot (14 East, 138)], to the Courts of Justice, which, as well as the Houses, must be liable to continual obstruction and insult if they were not entrusted with such powers. It is unnecessary to discuss the question whether each House of Parliament be or be not a Court; it is clear that they cannot exercise their proper functions without the power of protecting themselves against interference. The test of the authority of the House of Commons in this respect, submitted by Lord Eldon to the Judges in Burdett v. Abbot (5 Dow, 199) was whether, if the Court of Common Pleas had adjudged an act to be a contempt of Court, and committed for it, sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, and, therefore, it was not a privilege, a term which has been used in the sense of something which the Parliament Possessed and which exceeded those possessed by other bodies or individuals : Cf. May 42. 178. Then comes the case of Howard v. Gossett (116 E.R. 139). It will be enough to refer to the judgment of the Court of Exchequer Chamber in appeal which begins at p. 158. That judgment was delivered by Parke B. who observed at p. 171 : "the warrant of the Speaker is, in our opinion, valid so as to be a protection to the officer of the House, upon a principle which as it applies to the process and officers of every Superior Court, must surely be applicable to those of the High Court of Parliament and each branch of it." 179. Here again the House is treated as being entitled to the same respect as a superior court, but it is not being said that the House is a superior court. 180. Lastly, I come to Bradlaugh v. Gossett ((1884) L.R. 12 Q.B.D. 271) in which at p. 285 Stephen J. said, "The House of Commons is not a Court of justice." I am unable to see how these authorities can be said to hold that the power of the House of Commons to commit by a general war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this is a presumption which the law requires to be made. If it is not so, then the right of the House would depend on the indulgence of the judge concerned and, therefore, be no right at all. That cannot be, nor is it so. What then ? If it is a presumption of law, what is the law on which the presumption is a based ? None has been pointed out and so I know, none exists unless it be lex Parliamenti. Once that is said, it really becomes a matter of privilege for the lex Parliamenti would not create the presumption except for establishing a privilege. A right created by lex Parliamenti is a privilege. This I have earlier said in discussing the nature of privileges. 184. Lastly, has the right its origin in agreement between the House of Commons and the courts of law, or in a concession granted by the latter to the former ? This is novel argument. I have not known of any instance where a right, and therefore, the law on which it is based, is created by an agreement with courts. Courts do not create laws at all, least of all by agreement; they ascertain them and administer them. For the same reason, courts cannot create a law by concession. A court has no right to concede a question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere conferred on the House of a State Legislature by Art. 194(3), take precedence over fundamental rights. The facts were these. A House of the Bihar Legislature which also had made no law defining its privileges under Art. 194(3), had directed certain parts of its proceedings to be expunged but notwithstanding this the petitioner published a full account of the proceedings in his paper including what was expunged. A notice was thereupon issued to him by the House to show cause why steps should not be taken against him for breach of privileges of the House. The privilege claimed in that case was the right to prohibit publication of its proceedings. The petitioner, the Editor of the paper, then filed a petition under Art. 32 of the Constitution stating that the privilege did not control his fundamental right of freedom of speech under Art. 19(1)(a), and that, therefore, the House had no right to take proceedings against him. He also disputed that the House of Commons had the privilege which the Bihar Assembly claimed. The majority held that the House possessed the privilege to prohibit the publication of its proceedings and that privilege was not subject to the fundamental right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot think that any that other reading is possible. Clause (3) of Art. 194 thus not having been expressly made subject to the other provision of the Constitution, how is a conflict between it and any other provisions of the Constitution which may be found to exist, to be resolved ? The majority held that the principle of harmonious construction has to be applied for reconciling the two and Art. 194(3) being a special provision must take precedence over the fundamental right mentioned in Art. 19(1)(a) which was a general provision : (p. 860). Though Subba Rao J. said that there was no inherent inconsistency between Art. 19(1)(a) and Art. 194(3), he nonetheless applied the rule of harmonious construction. He felt that since the legislature had a wide range of powers and privileges and those privileges can be exercised without infringing the fundamental rights, the privilege should yield to the fundamental right. This construction, he thought, gave full effect to both the articles : (pp. 880-1). With great respect to the learned Judge, I find it difficult to follow how this interpretation produced the result of both the articles having effect and thus achieving a harmonious construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of the statute book the conflicting part and saying that the two provisions have thereby been harmonised because after such deletion the rest of the first and the whole of the second operate. We are concerned with harmonising two conflicting provisions by giving both the best effect possible and that is not done by cutting the gordian knot by removing the conflicting part out of the statute. 194. I agree that in view of the conflict between Art. 194(3) and Art. 19(1)(a), which arise in the manner earlier stated, it has to be resolved by harmonious construction. As I understand the principle, it is this. When the Legislature - here the Constitution - enacted both the provisions they intended both to have effect. If per chance it so happens that both cannot have full effect, then the intention of the legislature would be best served by giving the provisions that interpretation which would have the effect of giving both of them the most efficacy. This, I believe, is the principle behind the rule of harmonious construction. Applying that rule to Sharama's case ([1959] Supp. 1 S.C.R. 806), if the privilege claimed by the Legislature under Art. 194(3) of prohibiting publication o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 13. The argument that since the laws made under Art. 194(3) are subject to fundamental rights, so must the privileges conferred by the second part of clause (3) be, is therefore based on a misconception. Article 13 makes a law bad if it conflicts with fundamental rights. It cannot be argued that since Art. 13 might make laws made under clause (3) of Art. 194 void, the privileges conferred by the second part of that clause must also be void. Article 13 has no application to a provision in the Constitution itself. It governs only the laws made by a State Legislature which Art. 194(3) is not. Therefore, I do not see why it must be held that because a law defining privileges if made, would be void if in conflict with fundamental rights, the privileges incorporated in Art. 194(3) - I have already said that that is how the second part of Art 194(3) has to be read - must also have been intended to be subject to the fundamental rights. If such was the intention, clause (3) would have started with a provision that it would be subject to the Constitution. The fact that in clause (1) the words 'subject to the provisions of this Constitution' occur while they are omitted form clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atures should make laws defining their own privileges and get rid of the privileges of the Houses of Commons conferred on them by the second part of Art. 194(3). I think it right also to state that even if the rights conferred by the second part of Art. 194(3) were transitory, that would not justify a reading the result of which would be to delete a part of it from the Constitution. 198. It is necessary to notice at this stage that in Ganupati Keshav Ram Reddy v. Nafisul Hassan his Court held the arrest of a citizen under the Speaker's order for breach of privilege of the Uttar Pradesh Assembly without producing him before a magistrate as required by Ar. 22(2) of the Constitution was a violation of the fundamental right mentioned there. Reddy's case states no reason in support of the view taken. Subba Rao J., though he noticed this, nonetheless felt bound by it. The majority did not do so observing that the decision there proceeded on a concession by counsel. In this Court learned Advocate for the High Court said that there was no concession in the earlier case. I notice that Das C.J., who delivered the judgment of the majority in Sharma's case ([1959] Supp 1 S.C.R. 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rma's case ([1859] Supp. 1 S.C.R. 806) as correctly decided. 202. I now come to the other contention concerning Sharma's case ([1859] Supp. 1 S.C.R. 806). it was said that all that the majority judgment held in that case was that the privilege of prohibiting publication of its proceedings conferred on a Legislature by the second part of clause (3) of Art. 194 was not subject to the fundamental right of freedom of speech guaranteed by Art. 19(1)(a). It was pointed out that that case did not say that all the privileges under the second part of Art, 194(3) would take precedence over all fundamental rights. it was stressed that Das C.J. dealt with the argument advanced in that case that Art. 21 as the arrest would be according to procedure established by law because the arrest and detention would be according to rules of procedure framed by the House under Art. 208. It was contended that the majority therefore held that the fundamental right guaranteed by Art. 21 would take precedence over the privilege to commit. 203. This contention is also not acceptable to me. No doubt Sharma's case ([1859] Supp. 1 S.C.R. 806) was concerned with the concerned with the conflict between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l right under Art. 21 took precedence over the privilege of committal by a general warrant which the Legislature possessed under the second part of clause (3) of Art. 194. If he did so, then there would be no reason why he should have held that fundamental right of freedom of speech should yield to the House's privilege to stop publication of its proceedings. Another reason for saying that Das C.J. did not hold that Art. 21 took precedence over the privilege to commit by a general warrant is the fact that the held that Reddy's case ([1959] Supp. 1 S.C.R. 806) was wrongly decided. That case had held that Art. 22 have precedence, as Das C.J. must have held since he did not accept the correctness of Reddy's case , no more could he have held that Art. 21 would have precedence over the privilege to commit for contempt. 205. Some reference was made to cls. (1) and (2) of Art. 194 to show that Sharma's case ([1959] Supp. 1 S.C.R. 806) decided that Art. 19(1)(a) alone had to yield to the privilege conferred by the second part of clause (3) of Art. 194, but I do not think that the majority decision in Sharma's case ([1959] Supp. 1 S.C.R. 806) was at all based on those c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the two provisions. It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is a fundamental right or for any other reason. In the present case the conflict is between the privilege of the House to commit a person for contempt without that committal being liable to be examined by a court of law and the personal liberty of a citizen guaranteed by Art. 21 and the right to move the courts in enforcement of that right under Art. 32 or Art. 226. If the right to move the courts in enforcement of the fundamental right is given precedence, the privilege which provides that if a House commits a person by a general warrant that committal would not be reviewed by courts of law, will lose all its effect and it would be as if that privilege had not been granted to a House by the second part of Art. 194(3). This, in my view, cannot be. That being so, it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal. It is not my intention to state that there may not be exceptions to the rule but I do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for contempt. I do not think this is a fit occasion for deciding that question of law for even if the order for bail was not justifiable in law that would not otherwise affect the competence of the Bench to make the order. I do not suppose this reference was intended to seek an answer on the question whether in a habeas corpus petition where the imprisonment is for contempt, the law permit a release on bail. 211. Question No. 2 - Whether, on the facts and circumstances of the case, Shri Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Shri B, Solomon, Advocate, by presenting the said petition and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh. 212. The first thing I observe is that the question whether there is a contempt of the Assembly is for the Assembly to determine. If that determination does not state the facts, courts of law cannot review the legality of it. Having made that observation, I proceed to deal with the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the two Judges and B. Solomon, I think it had. That is one of the privileges of the House. As it has power to commit for contempt, it must have power to ascertain facts concerning contempt. 218. Question No. 4. - Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges and Shri B. Solomon, Advocate and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other Respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; 219. I would answer the question in the affirmative. The Full Bench had before it petitions by the two Judges and B. Solomon complaining of the resolution of the Assembly finding them guilty of contempt. I have earlier stated that on the facts of this case, they cannot be said to have been so guilty. It would follow that the Full Bench had the power to pass the interim orders that it did. 220. Question No. 5. - Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendence. It was next point out that under our Constitution Judges cannot be removed from office except by the process of impeachment under Art. 124(4), that is, by the order of the President upon an address by each House of Parliament supported by a certain majority. Reliance was then placed on Art. 211 of the Constitution which prohibits discussion in the Legislature of the conduct of a Judge in the discharge of his duties and it was said that this indicated that a Judge cannot be liable for contempt, because to make him so liable his duties and it was said that this indicated that a Judge cannot be liable for contempt, because to make him so liable his conduct was to be discussed. It was however conceded that Art. 211 did not give an enforceable right in view of Art. 194(2) but it was said to indicate the intention of the Constitution-makers that a Judge is to be immune from liability for contempt for the Assembly. 224. The correctness of these contentions was challenged on behalf of the Assembly. With regard to the point of judicial independence, it was said that it would hardly have been intended that a Judge should have immunity even though he deliberately committed contempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity on a Judge for an admitted contempt committed by him. It was pointed out that in England judicial officers, including Judges of superior courts, did not have that immunity and reference was made to Jay v. Topham (12 Howell's State Trials 821) and case of Brass Crossby (19 Howell's State Trials 1138). 227. I am not sure that I have set out all the arguments on this question but what I have said will give a fair idea of the competing contentions. For the purpose of this case, I do not think it necessary to go into the merits of those contentions. The questions that arise on the facts of the reference can, in my view, be answered without pronouncing on the question of immunity of Judges. It is often much better that theoretical disputes should be allowed to lie buried in learned tracts and not be permitted to soil our daily lives. It would not require much strain to avoid in practice circumstances which give rise to those disputes. In England they have done so and there is no reason why in our country also that would not happen. I strongly feel that it would serve the interest of our country much better not to answer this question especially as it has really not arisen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not starting proceedings against the Judges at once. It might have kept in mind that the Judges had difficult duties to perform, that often they had to act on imperfect materials, and errors were, therefore, possible. It could have realised that when it placed the facts before the judges, its point of view would have been appreciated and appropriate orders made to undo what had been done in the absence of full materials. Such an action of the Assembly would have enhanced it stature and prestige and helped a harmonious working of the different organs of the State. 230. I wish to add that I am not one of those who feel that a Legislative Assembly cannot be trusted with an absolute power of committing for contempt. The Legislatures have by the Constitution been expressly entrusted with much more important things. During the fourteen years that the Constitution has been in operation, the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. I would point out that though Art. 211 is not enforceable, the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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