TMI Blog1964 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 House, Mr. Verma, directing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 with the request made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Legislative Assembly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding 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 petition; ..... 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 forwarded to it and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which was intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 learned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 unre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the proceedings 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 standing orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, 1950. It is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will have to sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 satisfies the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 executive lie within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 come to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proposed to be taken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would become void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concession of coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with the relevant provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding 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 fundamental rights is itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly 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. If the impugned proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was dealing with the effect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made by the latter part of Art. 194( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 result of the impact of the provisions contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inherent in the House of Lords and the House of Commons, not as a body with legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 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 House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own Members for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 admission of the Commons to a distinct place in the legislature has always been a subject of controversy; but as it is admitted that they often sat apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 described as the keystone of parliamentary privilege . As was said in the Commons in 1593, This court for its dignity and highness hath privilege, as all other courts have. And, as it is above all other courts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 cases be decided in the courts, and, if so, in what sort of cases (May s Parliamentary Practice, p. 150). The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The courts claimed the right to decide for themselves wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction 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 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 (M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps 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 the jurisdiction exercised by the Lords the boundaries of the said jurisdiction were limited by common law and it exercise was examinable in the courts. This plea was unanimously rejected by the Court could not question the judgment of the House of Lords as a supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a cause a little alarming; and he pointed out that it must recollected that Lord C.J., Pemberton stood under the disadvantage at that period of having been one of the Judges who had sat on the trial of Lord Russel, and therefore did not stand high in popularity after the Revolution, when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, was that the court had no jurisdiction to deal with the matter, because the House of Commons were the proper judges of their own privileges. Justice Powys referred to the earlier decision in The Earl of Shaftesbury's case (86 E.R. 792) and observed : If all commitments for contempts, even those by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 London and a Member of the House of Commons, and as Magistrate he had admitted to bail a person who had been committed to prison under a warrant issued by the Speaker of the House under the orders of the House itself. The House held that Lord Mayor was guilty of breach of privilege of the House, and as such he was committed to the Tower of London. The validity of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 rejecting the plea are significant. Lord Ellenborough C.J. has considered the question exhaustively. He has observed that upon the authority of precedents in Parliament, upon the recognition by statue, and upon the continued recognition of all Judges, he should have thought that there was a quantity of authority enough to have put the question to rest, that is, whether the House of Commons has the power of commitment for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which the contempt arose, were not set forth in the warrant. After this question was handed to the Judges and they consulted among themselves for a few minutes, Lord Ch. Baron Richards delivered their unanimous opinion that in such a case the Court of King's Bench would not liberate. (3 E.R. 1289, 1301) This opinion was accepted and Burdett's appeal was dismissed without calling on the respondent. In this case, Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time Messrs. Hansard did not plead; in consequence, the judgment went against them in default, and the damages were assessed by a jury, in the Sheriff's Court, at $ 600. The Sheriffs of Middlesex levied for that amount, but were served with the copies of the resolutions passed by the House; and that naturally made them cautious in the matter. They, therefore, delayed the payment of the money to Stockdale as long as possible, but ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 remarkable that Justice Coleridge thought it necessary to make it clear that the right to require a general warrant to be respected when its vaildity is challenged in habeas corpus proceedings, is now a part of the privilege itself; it is the result of a convention by which such warrants issued by superior courts or record are usually respected. This decision was pronounced in 1840, and can be said to constitute a landmark in the development of the law on this topic. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal 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 for excluding a member from the House in obedience to a resolution of the House directing him to do so; and the answer was in the negative. It appears that the material resolution of the House of Commons was challenged as being contrary to law, and in fact the Queen's Bench Division proceeded to deal with the claim of Bradlaugh on the footing that the said resolution may strictly not be in accordance with the true effect of the relevant provision of the law; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 observed that if they were satisfied upon the return that such general warrants were issued for frivolous or extravagant reasons, it would be open to them to examine their validity. 109. Realizing that the position disclosed by the decisions so far examined by us was not very favourable to the claim made by him that the conclusive character of the general warrants is a part of the privilege itself, Mr. Seervai has very strongly relied on the decisions of the Privy Council which seem to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 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 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 ([1869-71] 3 L.R.P.C. 572, 573]). 111. In other words, this decision shows that the Privy Council took the view that the power to issue a general warrant and to insist upon the conclusive character of the said warrant it itself a part of the power and privilege of the House. Even so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. 114. One of the points which fell to be considered was what was the nature and extent of the powers, privileges and immunities conferred by s. 49 of the Constitution on the Senate and the House of Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 observed that the question about the powers, privileges and immunities of the House of Commons is one which the courts of law in England have treated as a matter for their decision, though he has added that the courts in England arrived at that position after a long course of judicial decision not unaccompanied by political controversy. The law in England was finally settled about 1840. This observation obviously refers to the Case of the Sheriff of Middlesex (113 E.R. 419). To quote the words of the learned Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 provisions of our Constitution differ from those of the Australian Constitution. Take, for instance, Art. 32 of our Constitution. As we have already noticed, Art. 32 confers on the citizens of India the fundamental right to move this Court. In other words, the right to move this Court for breach of their fundamental rights is itself a fundamental right. The impact of this provision as well as of the provisions contained in Art. 226 on the construction of the latter part of Article 194(3) has already been examined by us, it may be that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 an incidental and integral part of the privilege itself. The question which immediately arises is : can this right be deemed to have been conferred on the House in the present proceedings under the latter part of Art. 194(3) ? 121. Let us first take the basis relating to the status of the House of Commons as a Superior Court of Record. Can the House claim such a status by any legal fiction introduced by Art. 194(3) ? In our opinion, the answer to this question cannot be in the affirmative. The previous legislative history in this matter does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 Reference. Prima facie, it may conceivably appear that the conferment of the privileges of the members of the House of Commons on the members of the Federal Legislature could not necessarily make the Federal Legislature the House of Commons for all purposes; but that is a matter which we need not discuss and decide in the present proceedings. The position with regard to the Provincial Legislatures at the relevant time is, however, absolutely clear and there would obviously be no scope for the argument that at the time when the Constitution was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India never discharged any judicial function and constitutional background does not support the claim that they can be regarded as Courts of Record in any sense. If that be so, the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record, is absent in the present case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons, by ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly 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, this Court will have to examine the validity of the said contention, and it would be no answer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Art. 32 on the construction of the latter part of Art. 194(3) is decisively against the view that a power or privilege can be claimed by the House though it may be inconsis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In taking this course , said Viscount Simonds who spoke for the Privy Council, they have been mindful of the inalienable right of Her Majesty's subjects to have recourse to her courts of law for the remedy of their wrong and would not prejudice the hearing of any cause in which a plaintiff sought relief. The inalienable right to which Viscount Simonds referred is implicit in the provisions of Art. 226 and Art. 32, and its existence is clearly inconsistent with the right claimed by the House that a general warrant should be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zen 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 uncontrolled by Article 194(3). That is one integrated scheme for enforcing the fundamental rights and for sustaining the rule of law in this country. Therefore, our conclusion is that the particular right which the House claims to be an integral part of its power or privilege is inconsistent with the material provisions of the Constitution and cannot be deemed to have been included under the latter part of Art. 194(3). 133. In this connection, we ought to add that there is no substance in the grievance made by Mr. Seervai that Keshav Singh acted illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised 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 Members, in such manner, and under such penalties as each House may provide. Each House may determine the Rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds, expel a Member. Contempt committed outside the four-walls of the legislative chamber by a citizen who is not a Member of the House seems to be outside the jurisdiction of the American Legislature. As Willis has observed, punishment for contempt is clearly a judicial function; yet in the United States, Congress may exercise the power to pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging 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 ground of contempt, bail is not granted by courts. As a matter of course, during the last century and more in such habeas corpus proceeding returns are made according to law by the House of Commons, but the general rule is that the parties who stand committed for contempt cannot be admitted to bail. But it is difficult to accept the argument that in India the position is exactly the same in this matter. If Art. 226 confers jurisdiction on the Court to deal with the validity of the order of commitment even though the commitment has been ordered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Bench, the House did not conform to the uniform practice which the House of Commons has followed for more than a century past and did not instruct its lawyer either to file a return or to ask for time to do so, and to request that the Court should stay its hands until the return was filed. It is not disputed that whenever commitment orders passed by the House of Commons are challenged in England before the Courts at Westminster, the House invariably makes a return and if the warrant issued by it is general and unspeaking, it is so stated in the return and the warrant is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 House, is conclusive, for it is on that claim that the House has chosen to take the view that the Judges, the Advocate, and the party have committed contempt by reference to the conduct in the habeas corpus petition pending before the Lucknow Bench of the Allahabad High Court. Since we have held that in the present case no contempt was committed either by the Judges, or the Advocate, or the party respectively, it follows that it was open to the High Court of Allahabad, and indeed it was its duty, to entertain the petitions filed before it by the two Judges and by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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'ble Judges and Mr. B. Solomon Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said Legislative Assembly; and (5) In rendering our answer to this question which is very broadly worded, we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four-walls of the legislative chamber. A judge of a High Court who entertains or deals with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reprimand having been administered, the Speaker brought to the notice of the Assembly a letter dated March 11, 1964, written by Keshav Singh to him, in which he stated that he protested against the sentence of reprimand and had absolutely no hesitation in calling a corrupt man corrupt, adding that the contents of his pamphlet were correct and that a brutal attack had been made on democracy by issuing the Nadirshahi Firman (warrant) upon him. Keshav Singh admitted having written that letter. The Assembly thereupon passed a resolution that Keshav Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Beg JJ. and they passed an order on the same day directing that the implementation of the resolution be stayed. Similar petitions were presented by B. solomon and Beg J. and also by other parties, including the Avadh Bar Association, and on some of them similar orders, as on the petition of Sahgal J., appear to have been made. On March 25, 1964, the Assembly recorded an observation that by its resolution of March 21, 1964 it was not its intention to decide that Beg J., Sahgal J., B. Solomon and Keshav Singh had committed contempt of the House without giving them a hearing, but it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 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, 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. 151. Article 105 contains identical provisions in relation to the Central Legislature. It is not in dispute that the Uttar Pradesh Legislature has not made any law defining the powers, privileges a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother 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 parliament. It is, therefore, different from the common law of England which, though also based on custom, is based on a separatre set of custom, namely, that which prevails in the rest of the realm. This difference in the origin had given rise to serious disputes between Parliament and the courts of law but they have been settled there for many years now and except a dispute as to theory, the recurrence of any practical dispute is not considered a possibility. So Lord Coleridge C.J. said in Bradlaugh v. Gossett ((1884) L.R. 12 Q.B.D. 271, 275). Whether in all cases and under all circumstances the Houses are the sole judges of their own privileges, in the sense t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 nature of the power to commit for contempt to compare it with breach of privilege which itself may amount to contempt. Thus the publication on the proceedings of the House of Commons against its orders is a breach of its privilege and amounts to contempt. All contempts, however, are not breaches of privilege. Offences against the dignity or authority of the House though called breaches of privilege are more properly distinguished as contempts. Committing to prison for contempts is itself a privilege of the House of Commons whether the contempt is committed by a direct breach of its privilege or by offending its dignity or authority. (May, p.43) The functions, privileges and disciplina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 division of powers. So much as to the principle regarding the application of the theory of division of powers. 161. This question is further completely concluded by the decision of this Court in Pt. M. S. M. Sharma v. Shri Sri Krishna Sinha ([1959] Supp. 1 S.C.R. 806) I will have to refer to this case in some detail later. There Das C.J., delivered the majority judgment of the constitution bench consisting of five Judges and Subba Rao J. delivered his own dissenting opinion. Das C.J., proceeded on the basis that the Houses of a State Legislature had the power to commit for contempt. It was, therefore, held that there was nothing in our Constitution to prevent a legislative body from possessing judicial powers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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] A.C. 600) for the interpretation of a similar provision conferring the privileges of the Commons on the Legislature of Nova Scotia in Canada. It would, therefore, appear that Art. 194(3) conferred on the Assembly the power to commit for contempt and it possessed that power. 163. The next question is as to the privilege to commit by a general warrant. There is no dispute in England that if the House of Commons commits by general warrant without stating the facts which constitute the contempt, then the courts will not review that order (See Burdett v. Abbot 3 E.R. 1289; May's Paliamentary Practice 16th ed. p. 173). It was however said on behalf of the High Court that this power of the English House of Commons was not one of its privileg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Parliament, Commons were no part. In 1485 it was held by all the Judges that the jurisdiction in Error belonged exclusively to the House of Lords and not to the whole Parliament. Professor Holdsworth states in explanation of this fact that it was not quite forgotten that the jurisdiction was to the King and his Council in Parliament whereas the Commons were never part of his Council, the King in his Council in Parliament meaning only the King and the House of Lords; p. 95. It is also interesting to point out that when the Commons deliberated apart, they sat in the chapter-house or the refectory of the Abbot of West-minister; and they continued their sittings in that place after their final separation; May p. 12. The separation referred to is the sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 of Commons is the power of executing decisions on matters of privilege by committing members of Parliament, or any other individuals, to imprisonment for contempt of the House. This is exemplified in the case of Sheriff of Middlesex. That is a case where the House of Commons had committed the Sheriff of Middlesex for contempt by a general warrant, the Sheriff having in breach of the orders of the House carried out an order of the King's Bench Division, which he was bound to do and that Court held that it had no jurisdiction to go into the question of the legality of the committal by the House : see Sheriff of Middlesex (113 E.R. 419). In Halsbury's Laws of England, Vol. 28 p. 467, it is stated that the Courts of law will not enquire into the reasons for which a person is adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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) Beyond all doubt, one of the privileges and one of the most important privileges of the House of Commons - is the privilege of committing for contempt and incidental to that privilege, it has, as has already been stated, been well-established in this Country that the House of Commons have the right to be the judges themselves of what is contempt, and to commit for that contempt by a Warrant, stating that the commitment is for contempt of the House generally, without specifying what the character of the contempt is. It would, therefore, almost of necessity follow, that the Legislature of the Colony having been permitted to carry over to the Colony the privileges, immunities, and powers of the House of Commons, and having in terms carried over all the privileges ad powers exercised by the House of Commons at the Statute, there was carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the House of Commons but a right which it possessed as a superior court is, as I understood the argument of learned advocate for the High Court, based. I will take the cases in order of date. It will not be necessary to refer to the facts of these cases and it should suffice to state that each of them dealt with the right of the House of Commons to commit by a general warrant. First, there is Burdett v. Abbot (104 E.R. 501). In this case, in the first court judgments were delivered by Ellenborough C.J. and Baylay J. With regard to this case, Anson in his book at p. 189 says, It is noticeable that in the case of Burdett v. Abbot while Beylay J. rests the claim of the House to commit on its parity of position with the Courts of Judicature, Lord Ellenborough C.J. rests his decision on the broader ground of expediency, and the necessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... we are now enquiring whether the subject-matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer : it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it. 171. Clearly Lord Denman did not proceed on the basis that the Commons was a court. In fact he refers to the right as arising from this privilege. Then I find Littledale J. observing at p. 1174 : But this proceeding in the House of Commons does not arise on adverse claims; there are no proceedings in the Court; there is no Judge to decide between the litigant parties making a declaration of what they say belongs to them. So Littledale J. also did not conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lves 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, stating the adjudication generally, the Court of King's Bench, on a habeas corpus setting forth the warrant, would discharge the contempt were not stated. A negative answer being given, Lord Eldon, with the concurrence of Lord Erskine (who had before been adverse to the exercise of the jurisdiction), and without a dissentient voice from the House, affirmed the judgment below. And we must presume that what any Court, much more what either House of Parliament, acting on great legal authority, takes upon it to pronounce a contempt, is so. 176. This observation would support what I have said about the judgment of Lord Eldon in Burdett v. Abbot (3 E.R. 1289). Denman C.J. did not think that Lord Eldon considered the House of Commons to be a Court for the himself found it unnecessary to discuss that question. Then why he thought that the House of Commons must possess the right to commit by a general warrant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssett ((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 warrant is possessed by it because it is a superior court. 181. It was then said that even if the right to commit by a general warrant cannot be said to have been possessed by the House of Commons because it was superior court, the observations in the cases on the subject, including those to which I have already referred, would establish that the right springs form some rule of comity of courts, or of presumptive evidence or form an agreement between the courts of law and the House or lastly form some concession made by the former the latter. I at once observe that these cases do not support the contention and no text-book has taken the view they do or that right is anything but privilege. The contention further seems to me to be clearly fallacious and overlooks the basic nature of privilege of the House of Commons. I have earlier stated the nature of the privilege but I will repeat it here. All privileges of the House of Commons are based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, 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 of law unless the law already exists. I find it impossible to imagine that any parliamentary privilege which creates an enforceable right could be brought into existence by agreement with courts or by a concession made by them. 185. Before I part with the present topic I will take the liberty of observing that it is not for us to start new ideas about the privileges of the House of Commons, ideas which had not ever been imagined in England. Our job is not to start an innovation as to privileges by our own researches. It would be unsafe to base these novel ideas on odd observations in the judgments in the English cases, torn out of their context and in judgments in the English cases, torn out of their context and in disregard of the purpose for which they were made. What I have quoted form these cases will at least make one pause and think that these cases can furnish no sure foundation for a novel theory as to the right of the Hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a citizen under Art. 19(1)(a). Subba Rao J., took a dissentient view and held that fundamental rights take precedence over privileges and also that the House did not possess the privilege of prohibiting the publication of its proceedings. With the latter question we are not concerned in the present case. In the result Sharma's ([1959] Supp. 1 S.C.R. 806) petition was dismissed. 188. On behalf of the High Court two points have been taken in regard to this case. It was first said that the majority judgment required reconsideration and then it was said that in any event, that judgment only held that the privilege there claimed took precedence over the fundamental right of the freedom of speech and not that any other privilege took precedence over fundamental rights. I am unable to accept either of these contentions. 189. On behalf of the Assembly it has been pointed out that in a reference under Art. 143 we have no juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, 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. 191. Ex facie there is no conflict between Arts. 194(3) and 19(1)(a), for they deal with different matters. The former says that the State Legislatures shall have the powers and privileges of the English House of Commons while Art. 19(1)(a) states that every citizen shall have full freedom of speech. The conflict however comes to the surface when we consider the particular privileges claimed under Art. 194(3). When Art. 194(3) says that the State Legislatures shall have certain privileges, it really incorporates those privileges in itself. Therefore, the proper reading of Art. 194(3) is that it provides that the State Legislatures have, amongst other privileges, the privilege to prohibit publication of its proceedings. It is only then that the conflict between Arts. 194(3) and 19(1)(a) can be seen; one restricts a right to publish something while the other says all things may be published. I believe that is how the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 of proceedings was given full effect, Art. 19(1)(a) would not be wiped out of the Constitution completely, the freedom of speech guaranteed by the last mentioned article would remain in force in respect of other matters. If, on the contrary Art. 19(1)(a) was to have full effect, that is to say, a citizen was to have liberty to say and publish anything he liked, then that part of Art. 194(3) which says that the House can prohibit publication of its proceedings is completely destroyed, it is as if it as if it had never been intended or be the proper reading of the Constitution. That to my mind, can hardly have been intended or be the proper reading of the Constitution. I would for these reasons say that the rule of harmonious construction supports the interpretation arrived at by the majority in Sharma's case ([1959] Supp. 1 S.C.R. 806). 195. Subba Rao J. gave another reason why he thought that fundamental ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (3) is a strong indication that the latter clause was not intended to be so subject. Furthermore, that could not have been the intention because then the privilege with which the present case is concerned, namely, to commit for contempt by a general warrant without the committal being subjected to the review of the court, would be wiped out of the Constitution for the fundamental right required that the legality of every deprivation of liberty would be examinable in courts. 196. It was also that fundamental rights are transcendental. I do not know what is meant by that. If they are transcendental that must have been because the Constitution made them so. The Constitution no doubt by Art. 13 makes laws made by the Legislatures subject to fundamental rights, but I do not know, nor has it been pointed out to us, in what other way the Constitution makes the fundamental rights transcendental. We are not entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. 806) was a member of the Bench which decided Reddy's case . If the decision Reddy's case was not by concession at least in the sense that the learned advocate was unable to advance any argument to support the contention that privilege superseded fundament to support the contention that privilege superseded fundamental right, it would be strange that the point was not discussed in the judgment. However all this may be, in view of the fact that it does not seem from the judgment to have been contended in Reddy's case that the second part of Art. 194(3) created privileges which took precedence over the fundamental rights, as the judgment does not state any reason in support of the view taken, for myself I have no difficulty in not following Reddy's case especially as the majority in Sharma's case ([1959] Supp. 1 S.C.R. 806) did not follow it. 199. It was also said that the privileges wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Art. 19(1)(a) and the privilege of the House under the second part of Art. 194(3) to prohibit publication of its proceedings and, therefore, it was unnecessary to refer to the other fundamental rights. The reason, however, which led the majority to hold that the conflict between the two had to be resolved by giving precedence to the privilege would be available the case of a conflict between many other privileges and many other fundamental rights. Now that reason was that the resolve the conflict, the rule of harmonious construction had to be applied and the result of that would be that fundamental rights, which in their nature were general, had to yield to the privileges which were special. The whole decision of the majority in that case was that when there was a conflict between a privileges which were special. The whole decision of majority in that case was that when there was a conflict bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how 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 clauses, These clauses, it will be remembered, dealt with freedom of speech in the House. Das C.J., referred to them only because some arguments, to which it is unnecessary now to refer, had been advanced on the basis of these clauses for of showing that the privileges were subject to the fundamental right of freedom of speech. Both the minority and the majority judgments were unable to accept these arguments. Indeed the question in that case concerned the power to affect a citizen's freedom of speech outside the House and cls. (1) and (2) only deal with freedom of speech of a member in the House itself and with such freedom that case had nothing to do. 206. In this Court some discussion took place as to the meaning of the words subject to the provisions of the Constitution on clause (1) of Art. 194, These words can, in my view, only refer to the provisions of the Constitution laying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not propose to enter into discussion of these exceptions, if any, in the present case. The existence of those exceptions may be supported by the observations of Lord Ellenborough C.J. in Burdett v. Abbot ((1811) 14 East I. 152 : 104 E.R. 501). May at p. 159 puts the matter thus : Lord Ellenborough C.J., left open the possibility that cases might arise in which the courts would have to decide on me validity of a committal for contempt where the facts displayed in the return could by no reasonable interpretation be considered as a contempt. 208. I think I have now sufficiently discussed the law on the subject and may proceed to answer the questions stated in the order of reference. 209. Question No. 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 Shri Justice N. U. Beg and the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question. 213. The question should be answered in the negative. I suppose for an act to amount to contempt, it has not only to be illegal but also wilfully illegal. Now in the present case it does not appear that any of the person mentioned had any knowledge that the imprisonment was under a general warrant. That being so, I have no material to say that the presentation of the petition was an illegal act much less a wilfully illegal act. No contempt was, therefore, committed by the Hon'ble Judges or B. Solomon or Keshav Singh for the respective parts taken by them in connection with the petition. 214. Question No. 3. - Whether on the facts and circumstances of the case, it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon'ble Judges and Shri B. Solomon, 215. Advocate, before it in custody or to call for their explanation for its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. 221. This is too general a question and is not capable of a single answer; the answers would vary as the circumstances vary, and it is not possible to imagine all the sets of circumstances. Nor do I think we are called upon to do so. As learned advocates for the parties said, this question to be answered on the facts of this case. On those facts the question has to be answered in the negative. 222. I propose now to refer to an aspect of the case on which a great deal of arguments had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 of a House. It was pointed out that the contempt would be deliberate, because the Judge would know that in the case of a general warrant he had no jurisdiction to proceed further. 225. As regards the argument based on the irremovability of Judges except in the manner provided, it was said that that had nothing to do with immunity for contempt. It was pointed out that the Constitution provided for State autonomy and it could not have been intended that when a Judge committed contempt of a State Legislature, the only remedy of that body would be to approach the Central Parliament with a request to take steps for the removal of the Judge. That would also seriously impair the dignity of the State Legislature. The grant of relief in such a case would be unlikely to be obtained particularly when the parties in power in the State and the center, were as might happen, different. The irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I do hope that it will never arise. 228. I think it right to mention that Mr. Verma appearing for the Advocate-General of Bihar raised a point that this reference was incompetent or at least should not be answered. He said that a reference can be made by the President only when he needed the advice of this Court with regard to difficulties that he might feel in the discharge of his duties. Mr. Verma's contention was that the questions in the reference related to matters which did not concern the President at all. He said that the advice given by us on this reference will not solve any difficulty with which the President may be faced. On the other side, it was contended that the President might consider the amendment of the Constitution in the light of the answers that he might receive from this Court. Mr. Verma replied to this answer to his argument by saying that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We must not lose faith in our people, we must not think that the Legislatures would misuse the powers given to them by the Constitution or that safety lay only in judicial correction. Such correction may produce friction and cause more harm than good. In a modern State it is often necessary for the good of the country that parallel powers should exist in different authorities. It is not inevitable that such powers will clash. It would be defeatism to take the view that in our country men would not be available to work these powers smoothly and in the best interests of the people and without producing friction. I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the State amicably, wisely, courageously and in the spirit in which the makers of the Constitution expected them to act. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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