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TMI Blog1958 (12) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ause title. As no objection has been taken to the way the second and the third respondents have been impleaded as parties nothing further need be said about the propriety of such procedure. 2. This petition under Article 32 of the Constitution raises several important questions of far reaching effect. It came to be filed in the following circumstances : In his speech made in the Bihar Legislative Assembly on May 30, 1957, in course of the general discussion on the Budget for the year 1957-58 Shri Maheshwar Prasad Narayan Sinha, a Congress member of that Assembly, delivered what has been described as "one of the bitterest attacks against the way the Chief Minister was conducting the administration of the State". The Chief Minister, who also belongs to the Congress party, is the first respondent before us. Shri Maheshwar Prasad Narayan Sinha referred to the way the Chief Minister, according to him, was being guided by the advice of a gentleman who was well understood by all to be Shri Mahesh Prasad Sinha, who was an ex-minister of Bihar and had been defeated at the last general elections. The member referred, as common knowledge, to the activities of Shri Mahesh Prasad Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report which reads as follows :- BITTEREST ATTACK ON CHIEF MINISTER M. P. Sinha's choice as Khadi Board Chief condemned. Maheswar Babu's scathing criticism of Government. (By our Assembly Reporter) Patna, May 30. One of the bitterest attacks against the way the Chief Minister was conducting the administration of the State was made in the Bihar Assembly today by Mr. Maheshwar Prasad Narayan Singh, a Congress member who aid that contrary to all principles of good Government, the Chief Minister was guided by the advice of a gentleman who had been defeated at the election and stood condemned before the bar of public opinion. He also named the gentleman by whose advice the Chief Minister was allegedly running the administration. In this sixty-minute speech which was punctuated with frequent applause by Congress as well as Opposition benches, Mr. M. P. N. Singh said that corruption could not be eradicated from Government unless the Chief Minister refused to be influenced by such undesirable elements. He said it was common knowledge that during the period of the formation of the new-ministry which took unduly long time many aspirants for Ministership and Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use to move his motion. One Shri Karpuri Thakur having remarked that he could express no view without knowing what had been printed and what had been directed not to be printed, the Speaker read to the text of the notice sent in by Shri Nawal Kishore Sinha set out above which referred to the issue of the Searchlight in question. As Shri Karpuri Thakur was apparently satisfied by this, the Speaker then requested Shri Nawal Kishore Sinha to move his resolution. The account shows that Shri Nawal kishore Sinha then said - "Sir, I beg to move : that the matter be referred to the Privilege Committee of the House". No amendment having been moved, the Speaker, according to the report of the proceedings set forth in "annexure D", put the question to the House and, nobody objecting to the same, declared the resolution carried. 7. It appears that the Committee of Privileges (respondent 2) did not take up the consideration of the matter promptly and while the matter was pending before the Committee sharp exchanges of charges and counter charges took place between the petitioner and the Chief Minister (respondent 1) as are evidenced by the extracts from the issues of the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;, was raised in the Assembly by Shri Nawal Kishore Sinha, M. L. A. (Patna) on the 10th June, 1957, and whereas the same, having been referred to the Committee of Privileges for examination, investigation and report, was considered by the Committee which has been pleased to find a prima facie case of breach of privilege made out against you. You are hereby directed to show cause, if any, on or before the 8th September, 1958, why appropriate action should not be recommended against you for breach of privilege of the Speaker and the Assembly. Please also take notice that the question will come up for examination by the Committee on the 8th September, 1958, at 11 a.m. in the Official Sitting Room (Ground Floor) of the Assembly Buildings, Patna, and thereafter on such day or days and at such time and place as the Committee may from time to time appoint. You are informed that if the matter comes to evidence, you can, if you so choose, adduce evidence, both oral and documentary, relevant to the issue, and you must come prepared with the same on the date fixed in this behalf. Sd. Enayetur Rehman, Secretary to the Legislative Assembly. 9. Finding that things had begun to move and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned advocate for the petitioner relies upon Article 19(1)(a) and contends that the petitioner, as a citizen of India, has the right to freedom of speech and expression and that, as an editor of a newspaper, he is entitled to all the benefits of freedom of the Press. it is, therefore, necessary to examine the ambit and scope of liberty of the Press generally and under our Constitution in particular. 13. In England freedom of speech and liberty of the Press have been secured after a very bitter struggle between the public and the Crown. A short but lucid account of that struggle will be found narrated in the Constitutional History of England by Sir Thomas Erskine May (Lord Farnborough), Vol. II, ch. IX under the heading "Liberty of Opinion". In the beginning the Church is said to have persecuted the freedom of thought in religion and then the State suppressed it in politics. Matters assumed importance when the art of printing came to be developed. The Press was subjected to a rigorous censorship. Nothing could be published without the imprimatur of the licenser and the publication of unlicensed works was visited with severe punishments. "Political discussion was sil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any previous license subject to the consequences of law. It is, in substance, a mere application of the general principle of the rule of law, namely, that no man is punishable except for a distinct breach of the law (Dicey's Law of the Constitution, 9th Edn., p. 247). It was thus, as a result of a strenuous struggle, that the British people have at long last secured for themselves the greatest of their liberties - the liberty of opinion. 15. In the United States of America freedom of speech and liberty of the Press have been separately and specifically safeguarded in the Constitutions of most of the different States. Portions of the Constitutions of the 48 federating States, relevant for our purpose, have been collected in Cooley's Constitutional Limitations, Vol. II, ch. 12, pp. 876-880. Fifteen States, only, namely, Alabama, Arizona, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, North Dakota, Oregon, South Dakota, Washington and Wyoming do not specifically refer to liberty of the Press but content themselves by providing for freedom of speech. The Constitutions of the rest of the federating States separately and specifically mention liberty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... citizens shall have the right - (a) to freedom of speech and expression; ............................................................... ............................................................... (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence." 18. It will be noticed that this Article guarantees to all citizens freedom of speech and expression but does not specifically or separately provide for liberty of the Press. It has, however, been held that the liberty of the Press is implicit in the freedom of speech and expression which is conferred on a citizen. Thus, in Romesh Thappar v. State of Madras MANU/SC/0006/1950 : 1950CriLJ1514 this Court has held that freedom of speech and expression includes the freedom of propagation of ideas and that freedom is ensured by the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts the petitioner, was wrongly decided. For the purposes of this case, therefore, we are relieved of the necessity for examining the larger questions and have to proceed on the footing that the freedom of speech and expression conferred on citizens includes the right to publish news and reports of proceedings in public meetings or in Parliament or State Legislatures. The respondents, however, deny that the petitioner has the absolute right broadly formulated as hereinbefore mentioned. They urge, inter alia, that under Article 194(3) Parliament and the State Legislatures have the powers, privileges and immunities enjoyed by the House of Commons of British Parliament and those powers, privileges and immunities prevail over the freedom of speech and expression conferred on citizens under Article 19(1)(a). 20. Besides a few minor miscellaneous points raised by the learned advocate for the petitioner, which will be dealt with in due course, two principal points arising on the pleadings have been canvassed before us and they are formulated thus :- I. Has the House of the Legislature in India the privilege under Article 194(3) of the Constitution to prohibit entirely the publication o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (3) of Article 194 the Legislative Assembly of Bihar has all the powers, privileges and immunities enjoyed by the House of Commons at the commencement of our Constitution. What, then, were the powers, privileges and immunities of the House of Commons which are relevant for the purposes of the present petition ? Parliamentary privilege is defined as "the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals" (Sir Thomas Erskine May's Parliamentary Practice, 16th Edn., Ch. III, P. 42). According to the same author "privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law". The privileges of Parliament are of two kinds, namely, (i) those which are common to both Houses and (ii) those which are peculiar either to the House of Lords or to the House of Commons (Halsbury's Laws of England, 2nd Edn., Vol. 24, Article 698, p. 346). The privileges of the Commons, as distinct from the Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Parliament by the Speaker addressing the Lord Chancellor on behalf of the Commons. They are climbed as "ancient and undoubted" and are, through the Chancellor "most readily granted and confirmed" by the Crown (Anson's Law and Custom of the Constitution, Vol. 1, Ch. 4, p. 162). Of the three things thus claimed, two, namely, the freedom of the person and the freedom of speech and certain consequential rights like the right to exclude strangers from the House and the control or prohibition of publication of the debates and proceedings are common to both Houses (Halsbury's Laws of England, 2nd Edn., Vol. 24, p. 346). 22. For a deliberative body like the House of Lords or the House Commons, freedom of speech is of the utmost importance. A full and free debate is of the essence of Parliamentary democracy. Although freedom of speech was claimed and granted at the commencement of every Parliament, it was hardly any protection against the autocratic Kings, for the substance of the debates could be and was frequently reported to the King and his ministers which exposed the members to the royal wrath. Secrecy of Parliamentary debates was, therefore, considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been abrogated or repealed. In 1680 to prevent inaccurate accounts of the business done, the Commons directed their "votes and proceedings, without any reference to the debates, to be printed under the direction of the Speaker. After the Revolution of 1688 frequent resolutions were passed by both Houses of Parliament from 1694 to 1698 to restrain newsletter writers from "intermeddling with their debates or other proceedings" or "giving any account of minute of the debates". But such was the craving of the people for political news that notwithstanding these resolutions and the punishment of offenders imperfect reports went on being published in newspapers or journals. Amongst the papers were Boyer's "Political State of Great Britain", "London Magazine", and "Gentleman's Magazine" in which reports of debates were published under such titles as "Proceedings of a Political Club" and "Debates in the Senate of Magna Lilliputia". In 1722 the House of Commons passed the following resolutions : "Resolved, That no News Writers do presume in their Letters, or other Papers, that they disperse as Minutes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Lord Chief Justice Denman held that the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports was no justification for their or for any other bookseller publishing a parliamentary report, containing a libel against any man. Subsequently the House retaliated by committing Stockdale and his attorney and also the sheriff to prison. The deadlock thus brought about was at length removed by the passing of the Parliamentary Papers Act, 1840 (3 and 4 Vic. c. 9). 25. Learned advocate for the petitioner has drawn our attention to the judgment of Cockburn, C.J., in the celebrated case of Wason v. Walter (1868) L.R. IV Q.B. 73. The plaintiff in that case had presented a petition to the House of Lords charging a high judicial officer with having, 30 years before, made a statement false to his own knowledge, in order to deceive a committee of the House of Commons and praying enquiry and the removal of the officer if the charge was found true. A debate ensued on the presentation of the petition and the charge was utterly refuted. Allegations disparaging to the character of the plaintiff had been spoken in the course of the debate. A faithful r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, no doubt, is, that each house of parliament does, by its standing orders, prohibit the publication of its debates. But, practically each house not only permits, but also sanctions and encourages, the publication of its proceedings, and actually gives every facility to those who report them. Individual members correct their speeches for publication in Hansard or the public journals, and in every debate reports of former speeches contained therein are constantly referred to. Collectively, as well as individually, the members of both houses would deplore as a national misfortune the withholding their debates from the country at large. Practically speaking, therefore, it is idle to say that the publication of parliamentary proceedings is prohibited by parliament. The standing orders which prohibit it are obviously maintained only to give to each house the control over the publication of its proceedings, and the power of preventing or correcting any abuse of the facility afforded. Independently of the orders of the houses, there is nothing unlawful in publishing reports of parliamentary proceedings. Practically, such publication is sanctioned by parliament; it is essential to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the publication of debates are by sufferance only, although it is now recognized the dissemination of information on debates and Parliamentary proceedings is advantageous to English democracy and, in fact, necessary to public safety. By judicial dictum it has been stated that there is a right to publish fair and accurate reports of Parliamentary debates, but actually the traditional privilege of Parliament continues in conflict with judicial opinion. There is still a standing order forbidding the publication of Parliamentary debates, an order that by custom and the right of sufferance has become practically obsolete; yet the threat of such an order and the possibility of a contempt citation for its abuse, should Parliament deem it advantageous to withhold some particular discussion, serve as a check upon careless reporting and distorted comment." 29. May in his Parliamentary Practice, 16th Edn., p. 118 puts the matter thus :- "Analogous to the publication of libels upon either House is the publication of false or perverted, or of partial and injurious reports of debates or proceedings of either House or committees of either House or misrepresentations of the speec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no reason to suppose that the House of Commons will not be able to do so if any occasion arises for its assertion or exercise. If the House of Commons has not done so for a long time it must rather be assumed that no occasion had arisen for the assertion and exercise of this power than that it had ceased to have the power at all (Cf. the observations in Wason v. Walter) (1868) L.R. IV Q.B. 73 and In re : Banwarilal Roy (48 C.W.N. 766, 787)). Further the fact that the House of Commons in 1875 rejected Lord Hartington's motion referred to above also clearly indicates that the House of Commons is anxious to preserve this particular privilege. It is interesting also to note the new point that arose in the House of Commons regarding the publication of certain proceedings in August 1947. A Committee of Privileges found that one Mr. Evelyn Walkden, member for Doncaster, had revealed the proceedings of a private party meeting to a newspaper. The Committee thought that the practice of holding party meetings of a confidential character had become well-established and must be taken as a normal and everyday incident of parliamentary procedure. The Committee felt that attendance at suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed November 20, 1958). This also shows that there has been no diminution in the eagerness of the House of Commons to protect itself by securing the secrecy of debate by excluding strangers from the House when any occasion arises. The object of excluding strangers is to prevent the publication of the debates and proceedings in the House and, if the House is tenaciously clinging to this power or privilege of excluding strangers, it is not likely that it has abandoned its power or privilege to prohibit the publication of reports of debates or proceedings that take place within its precincts. 32.The result of the foregoing discussion, therefore, that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that take place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings. The latter part of Article 194(3) confers all these powers, privileges and immunities on the House of the Legislature of the State, as Article 105(3) does on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution, which, of course, would include Article 19(1)(a); (ii) that Article 194(1), like Article 105(1), in reality operates as an abridgment of the fundamental right of freedom of speech conferred by Article 19(1)(a) when exercised in Parliament or the State Legislatures respectively, but Article 194(3) does not, in terms, purport to be an exception to Article 19(1)(a); (iii) that Article 19, which enunciates a transcendental principle and confers on the citizens of India indefeasible and fundamental rights of a permanent nature, is enshrined in Part III of our Constitution, which, in view of its subject matter, is more important, enduring and sacrosanct than the rest of the provisions of the Constitution, but that the second part of Article 194(3) is of the nature of a transitory provision which, from its very nature, cannot override the fundamental rights; (iv) that if, in pursuance of the provisions of Article 105(3), Parliament makes a law under entry 74 in List I to the Seventh Schedule def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not intend clauses (2) to (4) to be subject to the provisions of the Constitution. If the Constitution makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way, namely, it would have started with the words : "Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the legislature -" and then the subject matter of the four clauses would have been set out as sub-clauses (i), (ii), (iii) and (iv) so as to indicate that the overriding provisions of the opening words qualified each of the sub-clauses. In the third place, in may well be argued that the words "regulating the procedure of the Legislature" occurring in clause (1) of Article 194 should be read as governing both "the provisions of the Constitution" and "the rules and standing orders". So read freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the Legislature, that is to say, subject to the Articles relating to procedure in Part VI including Articles 208 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the Legislature by law and that until then they shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees. The argument is that a law defining the powers, privileges and immunities of a House or Houses and the members and committees thereof can be made by Parliament under entry 74 in List I and by the State Legislature under entry 39 of List II and if a law so made takes away or abridges the right to freedom of speech guaranteed under Article 19(1)(a) and is not protected under Article 19(2), it will at once attract the operation of the peremptory provisions of Article 13 and become void to the extent of the contravention of that Article. But it is pointed out that if Parliament or the State Legislature does not choose to define the powers, privileges and immunities and the Houses of Parliament or the House or Houses of the State Legislature or the members and committees thereof get the powers, privileges and immunities of the House of Commons, there can be no reason why, in such event, the last mentioned powers, privileges and immunities should be independent of and override the provisions of Article 19(1)(a). The conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hought fit not to take any risk and accordingly made such laws subject to the provisions of Article 13; but that knowing and being satisfied with the reasonableness of the powers, privileges and immunities of the House of Commons at the commencement of the Constitution, they did not, in their wisdom, think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Article 19(1)(a). We must, by applying the cardinal rules of construction ascertain the intention of the Constitution makers from the language used by them. In this connection the observations made in Anantha Krishnan v. State of Madras AIR1952Mad395 , 405) by Venkatarama Aiyar, J., appear to us to be apposite and correct :- "As against this the learned Advocate for the petitioner urges that the fundamental rights are under the Constitution in a paramount position, that under Article 13 the Legislatures of the country have no power to abrogate or abridge them, that the power to tax is the power to destroy and that, therefore, part 12 is inoperative in respect of the rights conferred under Part III. I am unable to agree. Article 13 on which this argument is mainly founded does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled, for reasons stated above, to avail himself of Article 19(1)(a) to support this application, learned advocate for the petitioner falls back upon Article 21 and contends that the proceedings before the Committee of Privileges threaten to deprive him of personal liberty otherwise than in accordance with procedure established by law. The Legislative Assembly claims that under Article 194(3) it has all the powers, privileges and immunities enjoyed by the British House of Commons at the commencement of our Constitution. If it has those powers, privileges and immunities, then it can certainly enforce the same, as the House of Commons can do. Article 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Article 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Article 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually derived of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings in the House to which reference has been made. Shri Ramcharitra Sinha only wanted to know the convention relating to the question of admissibility of such a motion and the Speaker accordingly read out clause (ii) of rule 208. After that Shri Ramcharitra Sinha did not say anything further. The Speaker then said that he understood that there was no opposition in the matter and, therefore, the Hon'ble member was to be understood as having received the leave of the House and called upon him to say what he wanted to say. Thereupon, as stated earlier, Shri Karpuri Thakur wanted to know what had been published in the Searchlight of May 31, 1957, and what ought not to have been published. The Speaker thereupon read out the notice submitted by Shri Nawal Kishore Sinha which concisely referred to the subject matter of the motion and contained a reference to the issue of the Searchlight of May 31, 1957, a copy of which was filed along with the notice. After the notice had been read the Speaker permitted Shri Nawal Kishore Sinha to move his privilege motion, which the latter did. There was no amendment proposed and the Speaker then stated what the question before the House was. Nobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on). It is said that while the committee's resolution speaks of publishing" a perverted and unfaithful report of the proceedings of the Assembly relating to the speech of Maheshwar Prasad Narayan Sinha M.L.A." including the expunged portion thereof, the notice simply refers to "a question involving breach of privilege of the Bihar Legislative Assembly arising out of the publication of the news item" and calls upon the petitioner to show cause why appropriate action should not be recommended against him "for breach of privilege of the Speaker and the Assembly". We fail to perceive how the two documents can be read as referring to two different charges. The notice served on the petitioner is couched in terms which cover the matters referred to in the Committee's resolution. The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances, though factually correct, may, in law, be regarded as perverted and unfaithful report and the publication of such a perverted and unfaithful report of a speech, i.e., including the expung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. It is also urged that the Chief Minister should not take part in the proceedings before the Committee because he has an interest in the matter and reference is made to the decision in Queen v. Meyer (L.R. (1876) 1 Q.B.D. 173. The case of bias of the Chief Minister (respondent 2) has not been made anywhere in the petition and we do not think it would be right to permit the petitioner to raise this question, for it depends on facts which were not mentioned in the petition but were put forward in a rejoinder to which the respondents had no opportunity to reply. 45. Finally, the petitioner denies that the expunged portions have been published. We do not think we should express any opinion on this controversy, at any rate, at this stage. If the Legislative Assembly of Bihar has the powers and privileges it claims and is entitled to take proceedings for breach thereof, as we hold it is, then it must be left to the House itself to determine whether there has, in fact, been any breach of its privilege. Thus, it will be for the House on the advice of its Committee of Privileges to consider the true effect of the Speaker's directions that certain portions of the proceedings be expu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave a ruling that certain portions thereof should be expunged from the proceedings. In the issue of the "Searchlight" dated May 31, 1957, an accurate and faithful account of the proceedings of the Bihar Legislative Assembly of May 30, 1957, was published under the caption "BITTEREST ATTACK ON CHIEF MINISTER". It was also indicated in the report that the Speaker had disallowed the member to name Mr. Mahesh Prasad Sinha in respect of the Ministry formation and confined him to his remarks in regard to his chairmanship of the Khadi Board. It is alleged in the affidavit that till May 31, 1957, it was not known to any member of the staff of the "Searchlight", including the petitioner, that any portion of the debate in question had been expunged from the official record of the Assembly proceedings of May 30, 1957, and that in fact the petitioner did not publish the expunged remarks. This fact was denied by the respondents in their counter, but it was not alleged that the Speaker made any specific order or gave any direction prohibiting the publication of any part of the proceedings of the Assembly in any newspaper. On June 10, 1957, Shri Nawal Kishore Sinha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a citizen under Article 19(1) of the Constitution; and (ii) that even if the privilege was not expressly made subject to the fundamental right under Article 19(1), having regard to the nature of the fundamental right and the rules of interpretation, this Court should so construe the provisions as to give force to both the provisions. (2) Even if Article 194(3) overrides the provisions of Article 19, the powers, privileges and immunities of the House of Legislature are only those of the House of Commons of the Parliament of the United Kingdom, at the commencement of the Constitution, i.e., January 26, 1950; and the House of Commons on that date had no privilege to prevent the publication of its proceedings or portion expunged by the Speaker in respect of the proceedings. (3) Under Article 21 of the Constitution, no person is to be deprived of his personal liberty except in accordance with the procedure established by law and that the Privilege Committee, by calling upon the petitioner to appear at the Bar of the Legislature after making an enquiry in violation of the rules, particularly the Rules 207(2), 208(3) and 215 of the rules of the Assembly relating to the Committee of Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivilege, would not be vitiated. It was also denied that the Committee of Privileges enquired into any allegation not referred to it by the House. 50. At the outset it would be convenient to clear the ground of the subsidiary ramifications falling outside the field of controversy and focus on the point that directly arises in this case. We are not concerned here with the undoubted right of a State Legislature to control and regulate its domestic affairs. In "Cases in Constitutional Law" by Keir and Lawson, it is stated, at page 126, as follows : "The undoubted privileges of the House of Commons are of three kinds. They include (i) exclusive jurisdiction over all questions which arise within the walls of the house, except, perhaps, in case of felony ......................................... (ii) Certain personal privileges which attach to members of Parliament. The most important of these are freedom of debate, and immunity from civil arrest during the sitting of Parliament and for forty days before and after its assembling....................... 'That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decency or morality, or in relation to contempt of court, defamation or incitement to an offence." Article 194 states : "(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, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. (4) The provisions of clauses (1), (2) and (3) shall apply in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said rights. In the words of Patanjali Sastri, C.J., the said rights in Part III are "rights by the people after delegation of the rights by the people to the institutions of government". It is true, and it cannot be denied, that notwithstanding the transcendental nature of the said rights, the Constitution may empower the Legislature to restrict the scope of the said rights within reasonable bounds, as in fact it did under clauses (2) to (6) of Article 19. Such restrictions may be by express words or by necessary implication. But the Court would not and should not, having regard to the nature of the rights, readily infer such a restriction unless there are compelling reasons to do so. The Constitution adopted different and well-understood phraseology to resolve conflicts and prevent overlapping of various provisions. Some Articles are expressly made subject to the provisions of the Constitution - vide Articles 71(3), 73(1), 105, 131, etc. -, and some to specified Articles - vide Articles 81, 107(1), 107(2), 114(3), 120(1), etc. Some Articles are made effective notwithstanding other provisions in the Constitution - vide Articles 120(1), 136(1), 143(2), 169(1), etc. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers and the committees of a House of such Legislature shall be such as may from time to time be defined by the Legislature by law; and the second part declares that until so defined, they shall be those of the House of Commons of the Parliament of the United Kingdom and its members and committees, at the commencement of the Constitution. The question is whether this clause confers on the Legislature powers, privileges and immunities so as to infringe the fundamental right of a citizen under Article 19(1)(a) of the Constitution. The first thing to be noticed is that while Article 19(1)(a) of the Constitution deals with the freedom of speech and expression of a citizen, Article 194(1) declares that there shall be freedom of speech in the Legislature of every State. While Article 19(1) is general in terms and is subject only to reasonable restrictions made under clause (2) of the said Article, Article 194(1) makes the freedom of speech subject to the provisions of the Constitution and rules and standing orders regulating the procedure of the Legislature. Clause (2) flows from clause (1) and it affords protection for liability to any proceedings in a Court for persons in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sometimes a particular rule persists in the record but falls into disuse in practice. Privileges, just like other branches of common law, are results of compromise depending upon the particular circumstances of a given situation. How difficult it is to ascertain the privilege of the House of Commons and its content and extent in a given case is illustrated by this case. 55. Reliance is placed upon other Articles of the Constitution in support of the contention that the second part of clause (3) is not intended to be transitory in nature. Under Article 135 of the Constitution, until Parliament by law otherwise provides, the Supreme Court shall have certain appellate jurisdiction. Under Article 137, subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it. Article 142(2) says : "Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respect the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary, it cannot be given a higher sanctity than that of the first part of clause (3). The first part of clause (3) reads : "In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law............". Article 245 enables a State to make laws for the whole or any part of the State. Article 246(3) provides that the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution referred to as the "State List"). Item 39 of List II of the Seventh Schedule enumerates the following matters among others : "Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof.......". Clause (2) of Article 13, which is one of the Articles in Part III elating to fundamental rights, prohibits the State from making any law which takes away or abridges the rights conferred by that Part and declares that any law made in contravention of that clause s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19". 57. I cannot also appreciate the argument that Article 194 should be preferred to Article 19(1) and not vice versa. Under the Constitution, it is the duty of this Court to give a harmonious construction to both the provisions so that full effect may be given to both, without the one excluding the other. There is no inherent inconsistency between the two provisions. Article 19(1)(a) gives freedom of speech and expression to a citizen, while the second part of Article 194(3) deals with the powers, privileges and immunities of the Legislature and of its members and committees. The Legislature and its members have certainly a wide range of powers and privileges and the said privileges can be exercised without infringing the rights of a citizen, and particularly of one who is not a member of the Legislature. When there is a conflict, the privilege should yield to the extent it affects the fundamental right. This construction gives full effect to both the Articles. This Court in Gunupati Keshavram Reddy v. Nafisul Hasan AIR1954SC636 held that the order of arrest of Mr. Mistry and his detention in the Speaker's custody was a breach of the provisions of Article 22(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ege claimed by the House of Commons. It is often said that each House of Parliament is the sole judge of its own privileges. But early in the history of British Parliament the question of the scope of that equivocal statement was raised and it was contended that the House's jurisdiction was confined only within the limits of the privileges as defined by the Courts of Common Law. The said question was raised and decided in Ashby v. White (1703) 2 Ld. Raym. 938, Paty's Case (1704) 2 Ld. Raym. 1105, Stockdale v. Hansard (1839) 9 A. & E. 1 and in the Case of the Sheriff of Middlesex (1840) 11 A. & E. 809. In the said cases, the Common Law rights of a citizen were threatened by the House of Commons on the ground that the person concerned committed a breach of the privilege of the House. The combined effect of these decisions is that "the Courts deny to the Houses the right to determine the limits of their privileges, while allowing them within those limits exclusive jurisdiction". In Anson's Law and Custom of the Constitution, the principle has been neatly stated, at page 190, thus :- "The Privileges of Parliament, like the prerogative of the Crown, are righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament, should it deem it expedient, to prohibit the publication of its proceedings. In the House of Lords, it is a breach of privilege for any person to print or publish anything relating to the proceedings of the House without its permission. The House of Commons, upon many occasions, has declared the publication of its proceedings without the authority of the House to be a breach of privilege, and the House has never formally rescinded the orders which from time to time it has made it has regard to this subject. At the present time, however, neither House will consider a report of its proceedings in a newspaper or other publication to be a breach of its privileges, unless such report is manifestly inaccurate or untrue." 64. At page 350 in the foot-note (d) the history of the said privilege is given thus :- "The jealousy of the House of Commons with regard to the privacy of its proceedings dates from the Long Parliament, and was due to the antagonism which existed between that assembly and the King. The object of the House at that time was to prevent its own members or officers from supplying the King with information which might incriminate its members; se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic, it is within the strictest limits of their jurisdiction to do so, and to punish any violation of their orders." 66. After tracing the history of the privilege, the practice obtaining in modern times is described thus : "The repeated orders made by the House forbidding the publication of the debates and proceedings of the House, or of any committee thereof, and of comments thereon, or on the conduct of Members in the House, by newspapers, newsletters, or otherwise, and directing the punishment of offenders against such rules, have long since fallen into disuse. Indeed, since 1909, the debates have been reported and issued by an official reporting staff under the authority of Mr. Speaker, and are sold to the public by Her Majesty's Stationery Office." 67. The same idea is repeated at page 56 as follows :- "So long as the debates are correctly and faithfully reported, however, the privilege which prohibits their publication is waived." 68. At page 118, the same result is described in different words thus : "So long as the debates are correctly and faithfully reported, the orders which prohibit their publication are not enforced; but when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed, - where would be our attachment to the Constitution under which we live, - if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation ? How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing ? What would become of the right of petitioning on all measures pending in Parliament, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing in either house ? Can any man bring himself to doubt that the publicity given in modern times to what passes in Parliament is essential to the maintenance of the relations subsisting between the government, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions obtaining in the 19th century, they would be more so in 1950, when the parliamentary system of government was perfected in England. 74. Jennings in his book on "The British Constitution" states at page 82 thus : "All this assumes, of course, that the House debates in public. Government and Opposition speak to each other, but for the education of the people. The criticisms brought against the Government are the criticisms of ordinary individuals; the answers of the Government are formally answers to the Opposition, but substantially they are replies to the questions raised in the factory, the railway carriage and the office. The members of the House of Commons were not elected for their special qualifications, but because they supported the policies which the majority of their constituents were prepared to accept. They have no authority except as representatives, and in order that their representative character may be preserved they must debate in public. Secret sessions were suited to the oligarchic government of the eighteenth century. They are the negation of democratic principles. No doubt there are exceptional occasions when secrecy is justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t apart, the charge as disclosed either in the notice served on the petitioner or in the enclosures annexed thereto does not impute any mala fide intention to the petitioner. The notice only says that the Committee of Privileges, on the basis of the publication of the news item in the "Searchlight", found that a prima facie case of breach of privilege has been made out against the petitioner. The resolution enclosed therein indicates that the petitioner committed a breach of privilege by printing the expunged portion of the speech of Maheshwara Prasad Narayan Singh and thereby published a perverted and unfaithful report of the proceedings. Other documents enclosed with the notice contained a motion moved in the House by another member charging the petitioner for publishing the expunged portion of the speech. The petitioner in his petition states that till May 31, it was not known to any member of the staff of the "Searchlight", including the petitioner, that any portion of the debate in question had been expunged from the official record of the Assembly. Though in the official record of the proceedings, portions of the speech reported have been expunged, no orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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