Pandit M. S. M. Sharma Vs. Dr. Shree
Krishna Sinha & Ors  INSC 116 (1 August 1960)
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1960 AIR 1186
CITATOR INFO :
R 1961 SC1457 (12) R 1964 SC1013 (16) R 1965
SC1553 (5,52) RF 1975 SC2299 (510)
State Legislature--Breach of
Privilege--Decision of Court, if res-judicata between Parties--Constitution of
India, Arts. 194(3) 19(1)(a).
The petitioner, the Editor of the
Searchlight, an English daily newspaper published from Patna, was called upon
to show cause before the Committee of Privileges of the Bihar Legislative
Assembly why he should not be proceeded against for the breach of privilege of
the Speaker and the Assembly for publishing an inaccurate account of the
proceedings of the Legislative Assembly. He moved this Court under Art. 32 of
the Constitution for quashing the said proceeding and the question for decision
in substance was whether the said privilege conferred by Art. 194(3) of the
Constitution was subject to the fundamental 97 rights of a citizen under Art.
19(1)(a) of the Constitution.
This Court by a majority found against the
Thereafter the Assembly was prorogued several
times, the Committee of Privileges reconstituted and a fresh notice was issued
to the petitioner. By the present petition the petitioner in substance sought
to reopen the decision, raise the same controversy once again and contend that
the majority decision was wrong. The question was whether he could be allowed
to do so.
Held, that the general principles of res
judicata applied and the judgment of this Court could not be allowed to be
reopened and must bind the petitioner and the Legislative Assembly of Bihar and
the reconstitution of the Committee of Privileges in the meantime could make no
Raj Lakshmi Dasi v. Banamali Sen, 
S.C.R. 154, applied.
Since this Court had held that the
Legislature bad the power to control the publication of its proceedings and
punish any breach of its privilege, there could be no doubt that it had
complete jurisdiction to carry on its proceedings in accordance with its rules
of business and a mere noncompliance with rules of procedure could be no ground
for interference by this Court under Art. 32 of the Constitution.
Janardan Reddy v. The State of Hyderabad,
 S.C.R. 344, referred to.
Prorogation of the Assembly does not mean its
dissolution and the only effect it has is to interrupt its proceedings which
can be revived on a fresh motion to carry on or renew them. It was, therefore,
not correct to contend that since the Assembly was prorogued several times
since after the alleged breach of privilege, the proceeding must be deemed to
ORIGINAL JURISDICTION: Petition No. 176 of
Petition under Article 32 of the Constitution
of India for enforcement of Fundamental Rights.
Basudeva Prasad, M. K. Ramamurthi, K. N.
Keshwa and R. Mahalingier, for the petitioner.
Lal Narain Sinha, B. K. P. Sinha, L. S. Sinha
and S. P. Varma, for the respondents.
M. C. Setalvad, Attorney-General for India,
C. K. Daphtary, Solicitor-General of India, H. J. Umrigar and T.
M. Sen, for the Attorney-General of India.
1960. August 1. The Judgment of the Court was
delivered by SINHA C. J.-By this petition under Art. 32 of the Constitution the
petitioner raises almost the same 13 98 controversy as had been done in Writ
Petition No. 122 of 1958, which was heard and determined by this Court by its
judgment dated December 12, 1958, and by Writ Petition No. 106 of 1959, which
was heard by this Court on November 10, 11 and 12, 1959, but which did not
reach the stage of judgment by this Court, inasmuch as the petitioner's Advocate
requested the Court to permit him to withdraw the petition and the Court
allowed the prayer and permitted the petitioner to withdraw the petition. In
each of these petitions the petitioner, who is a journalist by profession and
is functioning as the Editor of " the Searchlight ", an English daily
newspaper published from Patna in the State of Bihar, impugned the validity of
the proceedings before the Committee of Privileges and prayed for restraining
the opposite party, namely, the Chief Minister of Bihar as Chairman of the
Committee of Privileges, Bihar Legislative Assembly, Committee of Privileges
and the Secretary of the Bihar Legislative Assembly, from proceeding against
the petitioner for the publication in its issue dated May 31, 1957, of the Searchlight
an account of the debate in the Legislative Assembly, Bihar, on May 30, 1957.
The facts of the case have been stated in
great detail in the majority judgment of this Court delivered by S. R. Das, C.
J., in M. S. M. Sharma v. Sri Krishna Sinha (1). In the opening paragraph of
this Court's judgment aforesaid, the parties before the Court have been
enumerated and the anomaly pointed out. This Court held in effect that under
Art. 194(3) of the Constitution a House of a Legislature of a State has the same
powers, privileges and immunities as the House of Commons of the Parliament of
the United Kingdom had at the commencement of the Constitution. The House of
Commons at the relevant date had the power or privilege of prohibiting the
publication of even a true and faithful report of proceedings of the House and
had a fortiori the power or privilege of prohibiting the publication of an
inaccurate or garbled version of such debate or proceedings.
The powers or privileges of a House of State
Legislature are the same as (1)  SUPP.1 S.C.R. 806.
99 those of the House of Commons in those
matters until Parliament or a State Legislature, as the case may be, may by law
define those powers or privileges. Until that event has happened the powers,
privileges and immunities of a House of legislature of, a State or of its
members and committees are the same as those of the House of Commons at the
date of commencement of our Constitution. This Court also expressed the view
that Legislatures in this country like the House of Commons will no doubt
appreciate the benefit of publicity and will not exercise those powers,
privileges and immunities, except in gross cases. The minority judgment
delivered by Subba Rao, J., on the other hand, expressed the view that at the
relevant date the House of Commons, even as the Legislatures in this country,
had no privilege to prevent the publication of a correct and faithful report of
the proceedings of those legislatures, except those of secret sessions, and bad
only a limited privilege to prevent mala fide publication of garbled,
unfaithful or expunged reports of the proceedings. He also held that the
petitioner had the fundamental right to publish the report of the proceedings
of the Legislature.
In the result, this Court, in view of the
judgment of the majority, dismissed the petition, but made no order as to
costs. This Court further held that the Assembly of Bihar was entitled to take
proceedings for breach of its privileges and it was for the House itself to
determine whether there had in fact been any breach of any of its privileges.
After Writ Petition No. 122 of 1958 had thus
ended, the petitioner again moved this Court under Art. 32 of the Constitution.
That case was registered as Writ Petition No. 106 of 1959. On January 5, 1959,
the petitioner received a notice that the case of breach of privilege against
him would be considered by the Committee of Privileges of the Assembly on
February 3, 1959. That hearing was postponed from date to date, until in
August, 1959, the petitioner filed his petition under Art. 32 of the
Constitution. He contended in that petition that, as a citizen of India, the
petitioner had the fundamental right under Art. 19(1)(a) of the 100
Constitution to freedom of speech and expression which included the freedom of
publication and circulation and that the Legislature of the State of Bihar
could not claim any privilege contrary to the right thus claimed. In effect, it
was contended that the privilege conferred on the Legislature of a State by
Art. 194(3) of the Constitution was subject to the fundamental right of a
citizen contained in Art. 19(1)(a). It was also contended that the first
respondent, the Chief Minister of Bihar, who, it was alleged, had control over
the majority of the members of the Bihar Legislative Assembly and of the
Committee of Privileges, was proceeding mala fide in getting the proceedings
instituted against the petitioner for alleged breach of the privilege of the
House. Though not in terms, but in effect, the points raised in this petition
were a reiteration of those already determined by this Court in its judgment
aforesaid of December 12, 1958. The prayer made in the petition was that the
proceedings of the Committee of Privileges at its meeting held on August 10,
1958, might be quashed and the respondents restrained by a writ in the nature
of a writ of prohibition from proceeding against the petitioner in respect of
publication aforesaid of the proceedings of the Bihar Legislative Assembly of
May 30, 1957. After the petitioner had made his writ application to this Court
as aforesaid, the Bihar Legislative Assembly reconstituted the Committee of
Privileges of the Assembly, and on that very date a member of the Legislative
Assembly sought to move a motion in that Assembly for revival and rereference
of the matter of the alleged breach of privilege by the petitioner. Some
members of the Bihar Legislative Assembly objected to the motion being moved
and the Speaker of the Assembly deferred giving his ruling on that objection.
At the instance of some of the members of the Assembly, the Speaker of the
Assembly referred two questions to the Advocate General of Bihar for his
opinion on the floor of the House on October 20, 1959, namely, (1) whether it
was open to the Assembly to debate on an issue which might be sub judice in
view of the writ petition aforesaid filed by the 101 petitioner in the Supreme
Court under Art. 32; and (2) whether the matter which was dead by reason of
prorogation of the House several times could be, legally revived and restored.
On October 20, 1959, the Advocate General of Bihar attended the House and gave
his opinion, which it is not relevant to' state here. The Writ Petition, 106 of
1959, was heard in part and allowed to be withdrawn, as indicated above, on
November 12, 1959.
On November 24, 1959, the petitioner received
a fresh notice from the Secretary of the Legislative Assembly, opposite party
No. 3, calling upon the petitioner to show cause on or before December 1, 1959,
why appropriate action should not be recommended against him for a breach of
the privilege of the Speaker and the Assembly. The petitioner again instituted
proceedings under Art. 32 of the Constitution complaining that the motion
adopted by the Committee of Privileges of the Bihar Legislative Assembly at its
meeting held on November 23, 1959, amounted to an abridgement of his
fundamental right of speech and expression guaranteed under Art. 19(1) (a) of
the Constitution and was an " illegal and mala fide threat to the
petitioner's personal liberty in violation of Art. 21 of the Constitution of
India and that the Committee of Privileges, respondent No. 2 had no
jurisdiction or authority to proceed against the petitioner as threatened by
the notice aforesaid ".
The grounds of attack raise substantially the
same questions that were agitated on the previous occasions in this Court.
It was contended before us that the
petitioner, as a citizen of India, had the fundamental right of freedom of
speech and expression which included the freedom of obtaining the earliest and
most correct intelligence of the events of the time including the proceedings
of a Legislature and publishing the same and that no Legislature of a State
could claim a privilege so as to curtail that right. It was, therefore,
contended that the majority decision of this Court in Pt. M. S. M. Sharma v.
Shri Sri Krishna Sinha (1) was wrong.. In this connection it was also contended
that (1)  SUPP. 1 S.C.R. 806.
102 the rule of construction adopted by this
Court in its previous decision had been wrongly applied. It was further
contended that even if the House of a State Legislature had the same powers,
privileges and immunities as those of the House of Commons, those will be only
such as were being actually exercised at the date of the commencement of the
Constitution and the right to prevent publication of its proceedings was not
one of those powers, privileges or immunities. An appeal was also made to Art.
21 of the Constitution and it was contended that no citizen could be deprived
of his personal liberty, except in accordance with the procedure established by
law. Hence, it was further contended that the malafide act of respondents 1 and
2 calling upon the petitioner to show cause was a threat to his fundamental
right, and, finally, it was contended that after several prorogations, the
previous proceedings for breach of privilege were dead and the House of the
Assembly had, therefore, no power or jurisdiction to issue the fresh notice in
accordance with the motion of November 23, 1959, reviving the proceedings.
It will thus appear that in the present
proceedings also the very same questions which were discussed and decided in
Writ Petition No. 122 of 1958 are sought to be raised once again.
In effect, it is sought to be argued that the
previous decision of this Court has proceeded on a wrong appreciation of the
legal position. In short, it is insisted that the petitioner has the
fundamental right of publishing the proceedings of the Bihar Legislature and
that the Legislature has no power to restrict or control the publication of its
The Government Advocate of Bihar, on behalf
of the opposite party, has contended, in the first instance, that the present
writ petition against the parties, namely, the Chairman and the Members of the
Committee of Privileges, respondents 1 and 2, is barred by the principle of res
judicata and, therefore, not maintainable. His contention also is that the writ
cannot issue either against an individual member or against the House of the
Legislature as a whole in 103 respect of what has been done by it in exercise
of its privilege of prohibiting or, at any rate, controlling the publication of
On behalf of the petitioner it was contended
by Mr. Basudeva Prasad that respondent No. 2, the, Committee of Privileges, has
been reconstituted as aforesaid after the first decision of this Court which is
sought to be availed of as res judicata and that therefore the rule of res
judicata is inapplicable. In this connection it may be pointed out that in Writ
Petition No. 122 of 1958, Sri Krishna Sinha, Chief Minister of Bihar, was
impleaded as opposite party No. 1 in his capacity as the Chairman of the
Committee of Privileges of the Bihar Legislative Assembly and opposite party
No. 2 was cited as Committee of Privileges, Bihar Legislative Assembly, without
any names being given. In the present writ petition, opposite party No. 1 is
the same. Opposite party No. 2 is impleaded as the (New) Committee of Privileges
of Bihar Legislative Assembly and then a number of names are given including
that of Dr. Sri Krishna Sinha, the Chief Minister, as Chairman. Would it make
any difference that though opposite party No. 2 is the Committee of Privileges,
its personnel is different from that of the Committee of Privileges constituted
as it was in 1958 ? In our opinion, it does not make any difference. So long as
the Assembly remains the same it is open to the Assembly to reconstitute its
Committees according to the exigencies of the business of the Assembly. The
Committee of Privileges is one of the agencies through which the Assembly has
to transact its business. It is really the Assembly as a whole which is
proceeding against the petitioner in purported exercise of its powers,
privileges and immunities as held by this Court in its judgment in Writ
Petition No. 122 of 1958.
This Court has laid it down in the case of
Raj Lakshmi Dasi v. Banamali Sen (1) that the principle underlying res judicata
is applicable in respect of a question which has been raised and decided after
full contest, even though the first Tribunal which decided (1)  S.C.R.
104 the matter may have no jurisdiction to
try the subsequent suit and even though the subject-matter of the dispute was
not exactly the same in the two proceedings. In that case the rule of res
judicata was, applied to litigation in land acquisition proceedings. In that
case the general principles of law bearing on the rule of res judicata, and not
the provisions of s. 1 1 of the Code of Civil Procedure, were applied to the
case. The rule of res judicata is meant to give finality to a decision arrived
at after due contest and after hearing the parties interested in the
There cannot be the least doubt that, though
eo nomine opposite party No. 2 were not the same, but there is no escape from
the conclusion that the Committee of Privileges is the same Committee
irrespective of its personnel at a given time so long as it was a Committee
constituted by the same Legislative Assembly. The question decided by this
Court on the previous occasion was substantially a question affecting the whole
Legislature of the State of Bihar and was of general importance and did not
depend upon the particular constitution of the Committee of Privileges. It
cannot, therefore, be said that the question decided by this Court on the
previous occasion had not been fully debated and had not been decided after due
deliberation. That there was difference of opinion and one of the Judges
constituting the Court held another view only shows that there was room for
difference of opinion. It was a judgment of this Court which binds the
petitioner as also the Legislative Assembly of Bihar. For the application of
the general principles of res judicata, it is not necessary to go into the question
whether the previous decision was right or wrong.
In our opinion, therefore, the questions
determined by the previous decision of this Court cannot be reopened in the
present case and must govern the rights and obligations of the parties which,
as indicated above, are substantially the same. It is manifest, therefore, that
the petitioner has no fundamental right which is being threatened to be
infringed by the proceedings taken by the opposite party.
It now remains to consider the other
subsidiary 105 questions raised on behalf of the petitioner. It was contended
that the procedure adopted inside the House of the Legislature was not regular
and not strictly in accordance with law. There are two answers to this
contention, firstly, that according to the previous decision of this Court, the
petitioner has not the fundamental right claimed by him. He is, therefore, out
of Court. Secondly, the validity of the proceedings inside the Legislature of a
State cannot be called in question on the allegation that the procedure laid
down by the law had not been strictly followed. Article 212 of the Constitution
is a complete answer to this part of the contention raised on behalf of the
petitioner. No Court can go into those questions which are within the special jurisdiction
of the Legislature itself, which has the power to conduct its own business.
Possibly, a third answer to this part of the
contention raised on behalf of the petitioner is that it is yet premature to
consider the question of procedure as the Committee is yet to conclude its
proceedings. It must also be observed that once it has been held that the
Legislature has the jurisdiction to control the publication of its proceedings
and to go into the question whether there has been any breach of its privileges,
the Legislature is vested with complete jurisdiction to carry on its
proceedings in accordance with its rules of business. Even though it may not
have strictly complied with the requirements of the procedural law laid down
for conducting its business, that cannot be a ground for interference by this
Court under Art.
32 of the Constitution. Courts have always
recognised the basic difference between complete want of jurisdiction and
improper or irregular exercise of jurisdiction. Mere noncompliance with rules
of procedure cannot be a ground for issuing a writ under Art. 32 of the
Constitution vide Janardan Reddy v. The State of Hyderabad (1).
It was also sought to be argued that the subject
matter of the proceedings in contempt, whatever it was, took place more than
three years ago, and that, therefore, it has become much too stale for
proceeding (3)  S.C.R. 344.
14 106 against the petitioner in contempt. In
our opinion, this is also a matter within the jurisdiction of the legislature
which must decide whether or not it was recent enough to be taken serious
notice of, or whether any punishment in the event of the petitioner being found
guilty is called for.
These are matters with which this Court is in
no way concerned. Mr. Lal Narain Sinha, the Government Advocate of Bihar, who
appeared on behalf of the respondents, informed the Court that the Legislature
was interested more in the vindication of its constitutional rights than in
inflicting any punishment on the petitioner. Hence, no more need be said on
this aspect of the matter.
It remains to consider one other point sought
to be made on behalf of the petitioner that the Assembly had no power to
proceed against the petitioner for breach of privilege in May, 1957 when we
know as a fact that the Assembly was prorogued several times between May 31,
1957 and November 23, 1959. In our opinion, there is no substance in this
contention, for the simple reason that the prorogation of the Assembly does not
mean its dissolution. The House remains the same; only its sessions are
interrupted by prorogation of the House according to the exigencies of public
demands on the time and attention of the members of the Assembly and the volume
of business of the Assembly itself. In this connection reliance was placed on
the following passage in May's Parliamentary Practice, 16th Edition, p. 279
" The effect of a prorogation is at once to suspend all business until
Parliament shall be summoned again. Not only are the sittings of Parliament at
an end, but all proceedings pending at the time are quashed, except
impeachments by the Commons and appeals before the House of Lords. Every bill
must therefore be renewed after a prorogation, as if it were introduced for the
first time." The observations quoted above do not support the extreme
contention raised on behalf of the petitioner that the proceedings in contempt
are dead for all time. The effect of the prorogation only is to interrupt the
proceedings which are revived on a fresh motion to 107 carry on or renew the proceedings.
In this case, it is not necessary to pronounce upon the question whether
dissolution of the House necessarily has the effect, of 2 completely wiping out
the contempt or the proceedings relating thereto.
In our opinion, for the reasons given above,
no grounds have been made out for the exercise by this Court of its powers
under Art. 32 of the Constitution. The petition is accordingly dismissed. There
will be no order as to costs.