Special Reference No. 1 of 1964
V. [1964] INSC 209 (30 September 1964)
30/09/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) SARKAR, A.K.
SUBBARAO, K.
WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 745 1965 SCR (1) 413
CITATOR INFO:
R 1966 SC1441 (3) R 1967 SC1639 (8) D 1970
SC1573 (7) R 1971 SC1132 (50) RF 1973 SC1461 (503,1119) E&R 1974 SC 710
(90) RF 1975 SC2299 (78,180,571,594) E&R 1978 SC 68 (253) R 1978 SC 727
(47) RF 1979 SC 478 (8,101) RF 1984 SC 684 (65) R 1988 SC1208 (16) RF 1989 SC
653 (11) R 1991 SC2176 (38,51) RF 1992 SC 320 (32) RF 1992 SC2219 (71,93)
ACT:
Constitution of India, Art. 143(1)-Reference
under, whether must relate to matters pertaining to President's powers and
duties under the Constitution-Refusal to answer when justifiable.
Constitution of India, Art. 194(3)-Privileges
of House of Commons conferred on Indian State Legislatures-Power to commit for
contempt by conclusive general warrant whether one of such privileges---Privileges
whether subject to provisions of the Constitution and to fundamental rightsPower
to determine scope of privileges whether rests entirely with legislatures to
the exclusion of the Courts.
Constitution of India, Arts. 32, 226-Power of
Supreme Court and High Courts to entertain petitions challenging legality of
committals for contempt by State Legislatures-Power to interfere where breach
of fundamental rights alleged.
Constitution of India, Art. 211-Whether
directory or mandatory-Its impact on Art.194(3).
HEADNOTE:
The Legislative Assembly of the State of
Uttar Pradesh committed one Keshav Singh,who was not one of its members, to
prison for its contempt. The warrant of committal did not contain the facts
constituting the alleged contempt.
While undergoing imprisonment for the
committal, Keshav Singh through his Advocate moved a petition under Art. 226 of
the Constitution and s. 491 of the Code of Criminal Procedure, challenging his
committal as being in breach of big fundamental rights; he also prayed for
interim bail. The High Court (Lucknow Bench) gave notice to the Government
Counsel who accepted it on behalf of all the respondents including the
Legislative Assembly. At the time fixed for the hearing of the bail application
the Government Counsel did not appear. Beg and Saghal JJ. who heard the
application ordered that Keshav Singh be released on bail pending the decision
of his petition under Art. 226. The Legislative Assembly found that Keshav
Singh and his Advocate in moving the High Court, and the two Judges of the High
Court in entertaining the petition and granting bail had committed contempt of
the Assembly, and passed a resolution that all of them be produced before it in
custody. The Judges and the Advocate thereupon filed writ petitions before the
High Court at Allahabad and a Full Bench of the High Court admitted their
petitions and ordered the stay of the execution of the Assembly's resolution
against them. The Assembly then passed a clarificatory resolution which
modified its earlier stand. Instead of being produced in custody, the Judges
and the Advocate were asked to appear before the House and offer their
explanation.
At this stage the President of India made a
Reference under Art. 143(1) of the Constitution in which the whole dispute as
to the constitutional relationship between the High Court and the State
Legislative including the question whether on the facts of the case Keshav
Singh 414 his Advocate, and the two Judges, by their respective acts, were
guilt of contempt of the State Legislature, was referred,., to the Supreme
Court for its opinion and report.
At the hearing of the Reference a preliminary
objection as to the competency of the Reference was raised on behalf of the
Advocate General of Bihar, on the ground that it did not relate to any, of the
matters covered by the President's powers and duties under the Constitution.
-It was also urged, that even if the Reference was competent, the Court.
should not answer it as it not obliged
"to do so, and the answers given by it would not help) the President in
solving any of the difficulties with -which' he might be faced in discharging
his duties. The Court did not' accept these contentions and proceeded to hear
the parties-which fell,broadly,into two groups-those supporting the Assembly
and those supporting -the High Court.
On behalf of,the,Assembly it was-urged that
by 194(3) of the Constitution all the power and immunities of the House of
Commons of the United Kingdom on,. it. It. was I the sole judge 'of its
privileges and the Courts had no jurisdiction to interfere with their exercise.
In the alternative , it was contended that Courts in England never interfered
virtue of Art. privileges with a committal by the House of Commons for contempt
when the committal was by a general warrant, I.e., a warrant which did not
state the facts constituting the contempt, and, therefore Courts in India were
also precluded from examining the legality of the general warrants of, the
State Legislatures. The proceedings in the High Court in the present case were,
therefore, in contempt of the legislature.
Those supporting the stand taken by the High
Court urged that the Legislature received the powers of the House of Commons
subject to provisions of the Constitution and to the fundamental rights, that
the power to commit by general warrant was not one of the privileges of the
House of Commons, that by virtue of Articles 226 and 32, "the citizen -had
the right to move the Courts when his fundamental rights were contravened, and
that because of the provisions in Art. 211, the Legislature was precluded from
taking any action against the Judges.
HELD : (Per P. B. Gajendragadkar C. J., K.
Subba Rao, K. N. Wanchoo ' M. Hidayatullah, J. Shah and N.
jj.)The terms of Art. 143(1) are very wide
and all that they require is that the President should be satisfied that the
questions to be referred are' of such a nature and of such public imp that it
would be expedient to obtain the -Supreme Court opinion on them. The
President's order making the present Reference showed that he was so satisfied,
and therefore the Reference was competent. The argument that a Reference
"under Art. 143(1) could only be on matters directly 'related to the
President's powers and duties under the Constitution was misconceived [431 E-F]
432 E-F].
Earlier References made by the President
under Art. 143(1) showed no uniform pattern and that was consistent with the
broad and wide words used in Art. 143(1). [433 C-D].
In re : The Delhi Laws Act, 1912, [1951] S.C.R. 747, In re:
The Kerala Education Bill, 1957, [1959]
S.C.R. 995, In re:
Berubari Union & Exchange of Enclaves,
[1960] 3 S.C.R. 250 and In re: Sea Customs Act, [1964] 3S.C.R. 787, referred
to.
It is not obligatory on the Supreme Court to
answer a Reference under Art. 143(1)-the word used in that Article being 'may,
in contrast to the word 'shall' used in Art.
143(2). Refusal to make a report 415
answering the questions referred would however be justified only for sufficient
and satisfactory reasons e.g., the questions referred being of a purely
socio-economic or political character with no constitutional significance at
all. The present Reference raised questions of grave constitutional importance
and the answers given by the Court could help the President to advise the Union
and State Governments to take suitable legislative or executive action 1 It was
therefore the duty of; the court to answer it. [434 B-D; 433 G-H].
The advisory opinion rendered by the Court in
the present Reference proceedings was not adjudication properly socalled, and
would bind no parties as such. [446 H; 447 A].
(ii) The State Legislatures in India. could
not by virtue of Art. 194(3) claim to be the sole of their powers and privileges
to the exclusion of the courts. Their powers and privileges were to be found in
Art. 194(3) alone and nowhere else, and the power to interpret that Article lay
under the scheme of the Indian Constitution, exclusively with the Judiciary of
this country. (Scheme of the Constitution discussed). [444 G-H; 446 G-H"
It was not the intention of the Constitution to perpetuate in India the
'dualism' that rudely disturbed public life in England during the 16th, 17th
and 18th centuries. The Constitution-makers were aware of the several unhappy
situations that arose there as a result of the conflict between the Judicature
and the Houses of Parliament, and the provisions of Arts. 226, 32, 208, 212(1)
and 211 (examined by the Court) showed that the intention was' to avoid such a
conflict in this country. [454 A-B; 455 C-E].
Article 211 which provides that the
Legislatures could not discuss the conduct of the Judge in the discharge of his
duties, was mandatory. [457 G-H].
State of U. P. v. Manbodhan Lal Srivastava,
[1958] S.C.R. 533 and Montreal Street Railway Company v. Nornwndin, L. R. [1917]
A.C. 170, referred to.
(iii) Although Art. 194(3) has not been made
expressly subject to the provisions of the Constitution, it would be
unreasonable in construing it to ignore the other provisions, if for valid
reasons they were found to be relevant and applicable. Therefore wherever it
appeared that there was a conflict between the provisions of Art.
194(3) and the provisions relating to
fundamental rights, an attempt had to be made to resolve the said conflict by
the adoption of the rule of harmonious construction as was done in Sharma Is
case. [443 C-E].
Pandit M. S. M. Sharma v. Shri Sri Krishna
Sinha & Others, [1959] Supp. 1 S.C.R. 806.
(iv) In Sharma's case a majority of this
Court held, in terms, that Art. 21 was applicable to the contents of Art.
194(3) though Art. 19(1) was not. The
minority view was that Art. 194(3) was subject to all the fundamental rights.
[451 B-C].
The majority in Sharma's case cannot be said
to have held that Art. 194(3) was independent of all the fundamental rights for
the simple reason that it was held that Art. 21 was applicable, although on the
facts of the case its provisions were found not to have been contravened. The
petitioner in that case had not raised at all the general issue as to the
applicability and relevance to Art. 194(3) of all the fundamental rights in
Part 111, and therefore it was unnecessary for the Court to discuss and decide
that general issue. His claim was based on the applicability of two Articles
only i.e., Articles 21 and 19(1) (a). The Court A held that the former was
applicable and the latter was not. This must therefore be taken to have been
settled in Sharma's case. [451 C-F].
But Sharma's case cannot be said to have
settled the issue whether Art. 22(2) was applicable to Art. 194(3) or not.
[Observations of the majority therein as to
the correctness of the decision in Freddy's case which was decided on the basis
that Art,. 22(2) was applicable, held to be obiter].
[452 D-E].
Pandit M. S. M. Sharma v. Shri Sri Krishna
Sinha & Others, [1959] Supp. 1 S.C.R. 806 and Gunupati Keshavram Reddy v.
Nafisul Hasaan and the State of U.P., A.I.R.
1954 S.C. 636, discussed.
(v) The view taken in Sharma's case that the
laws defining the powers and privileges of the legislatures under the first
part of Art. 194(3) would be subject to Art. 13 and therefore to the
fundamental rights, did not require reconsideration. [453 G].
Anantha Krishnan v. State of Madras, A.I.R.
1952 Mad. 395, considered.
(vi) The first part of Art. 194(3) empowers
the State Legislatures to define by law their own powers, privileges and
immunities. The second part of the Article says that till they define their
powers etc. in the above manner, their powers, privileges and immunities will
be those of the British House of Commons. The second part was obviously intended
to confer for the interim period till laws were made under the first part,
those incidental privileges and immunities which every Legislature must possess
in order that it may be able to function effectively. [442 C-E].
The powers of the House of Commons conferred
by this clause are those which were still in existence at the commencement of
the Constitution i.e., 26th January, 1950 and not those which had fallen into
desuetude or the claim in respect of which had been given up. Further, only
those powers can be deemed to have been conferred which were not only claimed
by the House of Commons but also recognised by the British Courts. [442 F-H].
(vii) The claim that all the powers of the
British House of Commons became vested in the Indian Legislatures by virtue of
Art. 194(3) cannot be accepted in its entirety for there are many powers of the
House of Commons-such as right of access to the sovereign, passing acts of
attainder, impeachment, determining its own Constitution etc.which cannot be
possibly exercised by the Indian Legislatures.
[448 D-G].
May's Parliamentary Practice, 16th Edn. p.
86, referred to.
(viii) Art. 194(3)did not confer on the
Indian State Legislatures the right to commit for contempt by a general warrant
which could not be examined for its validity by courts in habeas corpus
proceedings. The right claimed by the House of Commons not to have its general
warrants examined in habeas corpus proceedings, was-based on the consideration
that the House of Commons was in the position of a superior court of record and
had the right like other superior courts of record to issue a general warrant
for the commitment of persons found guilty of contempt. There was a convention
in England whereby the general warrants committing for contempt issued by a
superior court of record were not examined by other courts. It was on that
ground and not on the F ground of privilege that the general warrants issued by
the House of Commons were treated as beyond scrutiny by the courts. [482 B-D
496 F].
417 May's Parliamentary Practice, 16th Edn.
relied on.
Ashby v. White, L.J. (1701-05) 714, Earl of
Shaftesbury's case, 16 E.R. 792, Bradlaugh v. Gossett, L.R. XII Q.B.D.
271, 12 State Tr.122, Sir Francis Burdett,
Abbott, 104 E.R. 501, Stockdale v. Hansard, 12 E.R. 1112, Ashby v. White and
Others, 92 E.R. 126, R. v. Paty & others, 92 E.R. 232, Murray's case, 95
E.R. 629, Brass Crosby, 95 E.R. 005, Burdett v. Abbott 3 E . R. 1289, Sheriff
of Middlesex, 113 E.R. 119 and Howard v. Gossett, 116 E.R. 139, discussed and
relied on.
Bradlaugh v. Gossett, L.R. XII Q.B.D. 271,
held not applicable.
Speaker of the Legislative Assembly of
Victoria v. Hugh Glass, (1869-71) III L.R., P.C. 560, Fielding and Others v.
Thomas, 1896, R., A.C., 600, The Queen v.
Richards, 92 C.L.R. 157 and Dill v. (1864) 1 Moo. P.C. (N.S.) 487 (15 E.R.
784), not followed.
Observations of Gwyer C.J., in Central
Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. 18 to the effect that
decisions in respect of other Constitutions could not be safely applied even
when the Provisions interpreted are similar, relied on.
Observations of Parker J. in re: Hunt's case
[1959] 1 Q.B.D.
678, referred to as indicating that even in
regard to a commitment for contempt by a superior court of record, the court
exercising its jurisdiction over a petition filed for habeas corpus would be
competent to consider the legality of the said contempt notwithstanding the
fact that the warrant for commitment was general or unspeaking.
The Indian State Legislatures were not at any
time in their history, either under the Constitution Act. 1935, or under the
Indian Independence Act, 1947, intended to be courts of record. The legal
fiction in Art. 194(3) could not transfer the history of England to India and
confer on the Indian State Legislatures the status of superior courts of
record.
Thus 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, was absent
in their 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 Common-,, by agreement, was deemed to possess, became vested in the Indian
Legislatures. On this view of the matter the claim made by the Uttar Pradesh
Assembly had to be rejected. [492 A-B].
(ix) Even if the power to commit by
non-examinable general warrant were treated as forming an integral part of the
privileges of the House of Commons it would not follow that the Indian State
Legislatures could exercise that power by virtue of Art. 194(3). [495-H].
The very existence of the powers of the
Courts under Art.
226 and 32 necessarily implies a right in the
citizen to approach the High Court or the Supreme Court for the protection of
his fundamental rights. (The present dispute was really between a citizen and
the Legislature and not one between the High Court and the Legislature). [494
A-B].
If a citizen moved this court and complained
that his fundamental right under Art. 21 [held to be applicable to Art. 194(3)
in Sharma's case] or any other applicable right, bad been contravened, it would
plainly be the duty of this Court to examine the merits of the said contention.
It would be no answer in such a case to say that the warrant issued against the
citizen was a general warrant and a general warrant must stop all further judicial
enquiry and scrutiny. The impact of the 418 fundamental right conferred on
Indian citizen by Art. 32 on the construction of the latter part of Art. 194(3)
was decisively against the view that a power or privilege could be claimed by
the House though it may be inconsistent with Art. 21. In this connection it was
relevant to recall that the rules for regulating the procedure of the House
were subject to the provision of the Constitution under Art.
208(1). [493 D-E].
Observations of Simonds J., in In re :
Parliamentary Privileges Act, 1770, [1958] A.C. 331 and Resolution of the House
of Lords, C.J. 1702-04, pp. 555, 560, (Cited in May 16th Edn. p. 47), referred
to.
It would be strange if the House which was
incompetent because of Art. 21 1 to discuss the conduct of a Judge in the
discharge of his duties, should have the power to summon him in custody for
alleged contempt committed in discharge of his duties. If the claim of the
House were upheld it would mean that the House could issue a general warrant
against a Judge and no judicial,scrutiny,could be held in respect of the
validity of such a warrant. This would Put the basic concept of judicial
independence into grave jeopardy. [493 E-H].
It 'was also' doubtful whether the power to
issue a general up-spcaking warrant was consistent with s. 554(2)(b) and s.
555 of the Code of Criminal Procedure [496
E-F].
Section 30 of the Advocates Act 1961, confers on all Advocates, the statutory right to practice
in all courts, including the Supreme Court, before any Tribunal or person
legally authorised to take evidence, and before any other authority or person
before whom such Advocate is by or under any,law for the time being in force
entitled to practice.
Section 14 of the Bar Councils Act recognises
a similar right. Just as the rights of the Judicature to deal with matters
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 citizen to move
the Judicature and the right of the Advocates to assist that process must
remain uncontrolled by Art. 194(3). That is one integrated scheme for
protecting the fundamental rights and for sustaining the rule of law in this
country.
Therefore the right to commit by a conclusive
general warrant which the State Assembly claimed to be an integral part of its
powers or privileges was inconsistent with the material provisions of the
Constitution and could not be deemed to have been included under the latter
part of Art.
194(3). [495 E-H].
The power to commit by general warrant was
moreover not essential for the effective functioning of a House of Legislature.
The American Congress had been functioning effectively without such power. [497
B-E].
In India, there are 14 State Legislatures in
addition to the Houses of Parliament. If the power claimed by the U.P.
Assembly were conceded it is not difficult to
imagine that its exercise may lead to anomalous situations as when a member of
one Legislature is committed for contempt by a general warrant issued by
another Legislature on account -of a speech made by him in his own Legislature.
[497 E-F].
(x) It was open to Keshav Singh in his
petition under Art.
226 to implead the, House on the ground that
his commitment was based on. the order passed by the House, and in that sense
the House was responsible for, and had control over his commitment. [496 B-C].
The King v. The Earl of Crewe Ex parte
Sekgome. [1910] 2 K.B.D. 576 and The King v. Secretary of State for Home
Affairs Ex parte O'brien, [1923] 2 K.B.D. 361, referred to.
419 (xi) Although in England parties who
stand committed for contempt by the house of Commons are not admitted to bail
by courts, the position in India is different. 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 the House, it follows that the court has
jurisdiction to make an interim order in such proceedings.
[498 F-H] State of Orissa v. Madan Gopal
Rungla and others, [1952] S.C.R. 28 and Maxwell on Interpretation of Statutes,
11th Edn. p. 350, relied on.
Lala Jairam Dav & others and King
Emperor, 72 I.A. 120, held inapplicable.
(xii) On the facts of the case the High Court
was competent to entertain the petition of Keshav Singh and to grant him bail
pending, disposal of his petition. There was no contempt of the U.P. Assembly
committed by Keshav Singh or his Advocate in moving the application under Art.
226, or by the High Court in entertaining the said petition and granting bail.
It was not competent for the Legislative Assembly to direct the production of
the two Hon'ble Judges and the Advocate before it in custody or to call for
their explanation for their conduct. It was competent for the Full Bench of the
Allahabad High Court to entertain and deal with the petitions -of the said two
Hon'ble Judges and ,the Advocate, and to pass interim orders restraining the
Speaker of the U.P. Assembly and other respondents to the said petitions from
implementing the aforesaid direction of the Assembly. 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 (who is not a member of the
Legislature) or issuing any process against the petitioner for its contempt
(the alleged contempt having been committed outside the four-walls of the
House), or for the infringement of its privileges and immunities, or who passes
any order on such petition, does not commit any contempt of the said
Legislature, and the said Legislature is not competent to take proceedings
against such a Judge in the exercise and enforcement of its powers, privileges
and immunities. [502 A; 503 C].
(xiii) It is necessary to remember that the
status, dignity and importance of the two institutions, the Legislature and the
Judicature, are derived primarily from the status, dignity and importance of
the respective causes that are assigned to their charge by the Constitution.
These two bodies as well as the executive
which is another important constituent of a democratic State, must function not
in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a
spirit of understanding within their respective spheres, for such harmonious
working of the ;three constituents of the democratic State alone will help the
peaceful development, growth and stabilization of the democratic way of life in
this Country. [447 D-E].
(xiv) The power to punish for contempt large
as it is, must always be exercised cautiously, wisely and with circumspection.
Frequent or indiscriminate use of this power in anger or irritation would not
help to sustain the dignity of the court, but may sometimes affect it
adversely.
Wise Judges never forget that the best way to
sustain the dignity and stat of their office is to deserve respect from the
public at large by them quality of their judgments, the fearlessness, fairness
and objectivity of their approach, and by the restraint, dignity and decorum
which they observe in their judicial conduct. We venture to think that what is
true of the Judicature is equally true of the Legislature. [501 F-G]..
420 Observations of Lord Atkin in Andre Paul
v. Attorney General of Trinidad, A.I.R.1936 P.C. 141, referred to.
Per Sarkar J. (i) It is undoubtedly for the
Courts to interpret the Constitution and therefore Art. 194(3). It follows that
when a question arises in this Country as to whether the House of Commons
possessed a particular privilege at the commencement of the Constitution, that
question must be settled, and settled only by the courts of law. There is no
scope of the dreaded 'dualism' appearing here, that is, courts entering into a
controversy with a House of a Legislature as to what its privileges are. [509
A-B].
(ii) The words appearing in Art. 194(3) are
"the powers, privileges and immunities of a House...... shall be those of
the House of Commons." One 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. [511 A-B].
Bradlaugh v. Gossett, (1884) 12 Q.B.D.271,
Burdett v. Abbott. (1811) 14 East 1, In re : Delhi Laws, [1951] S.C.R.
747. Pt. M.S.M. Sharma v. Shri Sri Krishna
Sinha. [1959] Supp. 1 S.C.R. 806, Speaker of the Legislative Assembly of
Victoria v. Glass (1871) L.R. 3. P.C. App. 560 Queen v.
Richards, 92 C.L.R. 157, Queen v. Richards,
92 C.L.R. 171 and Fielding v. Thomas, [1896] A.C. 660, referred to.
(iii) The power to commit by a general
warrant with the consequent deprivation of the jurisdiction of -the courts was,
one of the privileges of the House of Commons. That privilege was possessed by
the U.P. Assembly by virtue of Art. 194(3) of the Constitution. [524 C-D].
There is no authority to show that the House
of Commons possessed the powers to commit by a general warrant because it was a
superior court of record. Neither the history of the House, nor the judgments
in English cases support that contention. The courts only treated the House as
entitled to the same respect as a superior court. They did not say that the
House was a superior court. [513 B-C, 522 B].
May's Parliamentary Practice, 16th Edn.
Potter's Outlines of Legal History, (1958 Edn.) Anson's Law of the
Constitution. 6th Edn. Vol. 1, referred to.
Bradlaugh v. Gossett, (1884) 12 Q.B.D. 271
Burdett v. Abbott, 5 Dow 165, Sheriff of Middlesex, (1840) 11 A & E 272,
Stockdale v. Hansard, (1839) 9 AD & El and Howard v.
Gossett, (1874) 10 Q.B. 359. relied on.
It is fallacious to say that the right to commit
by general warrant possessed by the House of Commons springs from some rule of
comity of courts, or of presumptive evidence, or from an agreement between
courts of law and the House, or lastly, from some concessions made by the
former to the latter. [522 E-F].
All privileges of the House of Commons are
based on law.
That law is known as Lex Parliamenti. That
law like any other law is a law of the land which courts are entitled to
administer. [522 F-G].
It is not for us to start new ideas about
privileges of the House of Commons, ideas which had not ever been imagined in
England. Researches into the period when these privileges were taking shape can
afford no answer to their contents and nature in 1950. [523 G-H; 524 B-C].
421 Writers of undoubted authority as well as
certain recent decisions of the Judicial Committee have treated the power to
commit by a conclusive general warrant as a matter of privilege of the House
and not as a right possessed by it as a superior court. [515 G-H].
May's Parliamentary Practice, 16th Edn. Cases
on Constitutional Law by Keir and Lawson, Halsbury's Law's of England, Vol. 28,
467, Dicey's Constitutional Law, 10th Edn., referred to.
Speaker of the Legislative Assembly of
Victoria v. Glass, Fielding v. Thomas, and Sheriff of Middlesex, relied on.
(iv) The decisions of the Judicial Committee
may not be binding on Indian courts but they have high persuasive value, unless
shown to be wrong. The question is whether the House of Commons had a certain
privilege. If judicial notice of the privilege has to be taken, then under s.
57 of the Evidence Act, a reference to the authorised law reports of England
would be legitimate, and if the existence of the privilege has to be decided as
a matter of foreign law, then again under s. 38 of that Act a reference to
these reports would be justified. And since they contain decisions of one of
the highest courts in England, we are not entitled to say that what they call a
privilege of the House of Commons of their country is not a privilege, unless
some equally high authority taking the contrary view is forthcoming. [517 DF].
(v) It cannot be said that the privilege in
question can be exercised by the Indian State Legislatures only subject to the
fundamental rights of a citizen guaranteed by the Constitution. In Sharma's
case this court laid down that the privileges of the House of Commons which
were conferred on the House of a State Legislature by Art. 194(3) take
precedence over fundamental rights. This decision was correct and did not require
reconsideration. [524 E-F; 525 B-C, F].
In re : Delhi Laws Act, 1950, [1951] S.C.R.
747, referred to.
It was not held in Sharma's case that Art. 21
takes precedence over the privileges in Art. 194(3). Das C.J. no doubt said
that there was no violation of Art. 21 in that case because the deprivation of
liberty was according to procedure established by law. But that was only an
alternative reason for he could have held-as he did in the case of Art.
19(1)(a)-that Art. 21 being a general provision and Art. 194(3) being special,
the former must yield to the latter. [531 E-F; 532 B-E].
Another reason for saying that Das C.J. did
not hold that Art 21 took precedence over the privilege to commit by a general
warrant is the fact that he held that Reddy's case was wrongly decided. That
case had held that Art. 22 had precedence over the privilege of committal. If
Art. 22 did not have precedence, as Das C.J. must have held since he did not
accept the correctness of Reddy's case, no more could he have held that Art. 21
would have precedence over the privilege to commit for contempt. [532 E-F].
(vi) The majority in Sharma's case no doubt
said without discussion that the law under Art. 194(3) would be subject to all
fundamental rights, but that is so only because Art.
13 says so. [528 C-D].
Article 13 makes a law bad if it conflicts
with fundamental rights. it cannot be said that since Art. 13 might make laws
made under cl. (3) of Art. 194 void, the privileges conferred by the second
part must also be void. Article 13 has no application to the provisions of the
Constitution itself. It governs only the laws made by a State Legislature which
Art. 194(3) is not. The fact that in cl.
(1) of Art. 194 the words 422 'subject to the
provisions of the Constitution' occur, while they are omitted from cl. (3) is a
strong indication that the latter clause was not intended to be so subject.
[528 EH).
(vii) When there is a conflict between a
privilege conferred on a House by the second part of Art. 194(3) and a
fundamental right that conflict has to be resolved as in Sharma's case by
harmonising the two provisions. Harmonious construction means that both the
provisions should be given maximum effect without one of them wiping out the
other. In the instant case the conflict was between the privilege of the House
to commit a person for contempt without that committal being liable to be
examined by a court of law, and the personal liberty of a citizen guaranteed by
Art. 21 and the right to move the courts in enforcement of that right under
Art. 32 or Art. 226. If the right to move the courts in enforcement of the
fundamental right is given precedence, the privilege which provides that if a
House commits a person by a general warrant that committal would not be
reviewed by courts of law, will lose all its effect and it would be as if the
privilege had not been granted to a House by the second part of Art. 194(3).
This was not harmonious construction. That-being so, it would follow that when
a House commits a person for contempt by a general warrant that person would
have no right to approach the courts nor can the courts sit in judgment over
such order of committal.
[533 G-H, 534 A-C].
Observation of Lord Ellenborough C. J. in
Burdett v. Abbott, referred to for possible exceptions to the rule. [534 C-D].
(viii) The Lucknow Bench was not apprised of
the fact that the detention of Keshav Singh was under a general warrant, and
till so apprised it had full competence to deal with the petition under Art.
226. It was not necessary in the present reference to decide the question
whether in a habeas corpus petition where the commitment is for contempt the
law permits release on bail, because the Reference was not meant to seek an
answer to that question. No contempt was committed by the Hon'ble Judges or B.
Solomon or Keshav Singh for the respective parts taken by them in connection
with the petition as it did not appear that any of those persons knew that the
commitment was under a general warrant. Since they were not guilty, it was not competent
for the Assembly to order their production in custody.
Strictly speaking, the question as to
bringing them in custody before the House did not arise on the facts of the
case as the Assembly had modified its resolution in that regard. The Assembly was
competent to ask for explanation from the two Judges and B. Solomon. As it had
power to cormorant for contempt it necessarily had power to ascertain facts
concerning the contempt. The Full Bench was competent to entertain the petition
of the two Judges and B.
Solomon Advocate if on the facts of the case
they could not be said to be guilty. It would follow that the Full Bench had
the power to pass the interim orders it did. On the facts of the case, 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 I any order on such a petition does not
commit contempt of the said Legislature, and the said Legislature is not
competent to take proceedings against such a Judge in the exercise and
enforcement of its powers, privileges and immunities. [534 D; 537 D].
(ix) During the fourteen years that the
Constitution has been in operation, the Legislatures have not done anything to
justify the view that they do not deserve to be trusted with power. Though Art.
211 is 423 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, must not think that the
Legislatures Would misuse the powers given to them by the Constitution or that
safety lay in judicial correction. Such correction may do more harm than good.
In a modern State it is often necessary for the good of the country that
parallel powers shoul exist in different authorities. It is not inevitable that
such powers will clash. [541 C-E].
Advisory JURISDICTION: Special Reference No.
1 of 1964.
Special Reference under Art. 143 of the
Constitution of India.
C.K. Dhaphtary, Attorney-General, H.N.
Sanyal, SolicitorGeneral, S. V. Gupte, Addl. Solicitor-General, D. R. L.
lyengar and R. H. Dhebar, for Union of India.
M.C. Setalvad, G.S. Pathak, Jagadish Swaroop,
S.N. Andley, P.L. Vohra, Rameshwar Nath, Mahinder Ndrain, Harish K. Puri and
Suresh Vohra, for Hon'ble the Chief Justice and other Judges of the Allahabad
High Court.
G. S. Pathak, Jagdish Swaroop, Bishun Singh,
Gopal Behari, J.S. Trivedi, S.N. Pawnikar, S.N. Andley, P.L. Vohra and
Rameshwar Nath, for Hon'ble Mr. Justice N.U. Beg.
N.C. Chatterjee, Asif Ansari, M.K.
Ramamurthi, and R.K. Garg for Hon'ble Mr. Justice G.D. Sehgal.
H. M. Seervai, Advocate-General,41,
Mahashtra, T. ) Z. Andhyarujina and S.P. Varma, for U.P. Vidhan Sabha.
N.A. Palkhivala, J.B. Dadachanji, O.C. Mathur
and Ravinder Narain, for Hon'ble the Chief Justice, Maharashtra High Court.
J. M. Thakore, Advocate-General, Gujarat, J.
B. Dadachanji, O. C. Mathur and Revinder Jain, for Hon'ble the Chief Justice,
Gujarat High Court.
D. Narsaraju, N. R Ramdar, O.P. Malhotra, B.
Parthasarthy, J.B. Dadachanji, O.C. Mathur, and Ravinder Narain, for Hon'ble
the Chief Justice, Orissa High Court.
Murli Manohar Vyas, S. Murti, B.N. Kirpal,
B.L. Khanna, K. K. Jain, Chitale and M. S. Gupta, for Hon'ble the Chief
Justice, Rajasthan High Court.
Murli Manohar, S. Murti, B. N. Kirpal, B. L.
Khanna,, K. K. jain, chitle and M. S. Gupta, for Hon'ble the Chief Justice,
Madhya Pradesh High Court.
D.P. Singh, S. Balkrishnan, Shanti Bhatnagar
and Lai Narain Singh, for Hon'ble the Chief Justice, Patna High Court.
Sup.C.1.165-2 424 A.C. Mitra and D.N.
Mukherjee, for Hon'ble Speker, West Bengal Legislative Assembly.
S. S. Sanyal, S. K. Acharyya and D. N.
Mukheriee, for Hon'ble Chairman, W.B.L.C. H.M. Seervai, Advocate-General,
Maharashtra, T.R. Anandyarujina, R.A. Gagrat and V.J. Merchant, for Hon'ble the
Speaker/Chairman Maharashtra L.A. & L.C.
G.N. loshi, Atiqur Rehman and K.L. Hathi, for
Hon'ble the Speaker, Gujarat L.A. Atiqur Rehman and K.L. Hathi, for Hon'ble the
Speaker, Himachal Pradesh Vidhan Sabha.
B.C. Barua, Advocate-General, Assam and
Naunit Lal, for Hon'ble the Speaker, Assam Legislative Assembly.
D.M. Sen, Advocate-General, Nagaland and
Naunit Lal, for Nagaland Legislative Assembly.
B.P. Jha, for Hon'ble the Chairman, Bihar
Legislative Council and Hon'ble the Speaker Bihar Legislative Assembly.
K.L. Misra, Advocate-General, Uttar Pradesh,
B.C. Misra, D.D. Chaudhury and C.P. Lal, for the Advocate-General for the State
of U.P.
M. Adhikari, Advocate-General, Madhya Pradesh
and I.N. Shroff, for the Advocate-General for the State of Madhya Pradesh.
N. Krishnaswamy Reddy, Advocate-General,
Madras, V. Ramaswamy and A.V. Rangam, for the Advocate-General for State of
Madras.
B.V. Subrahamanyam, Advocate-General, State
of Andhra Pradesh, M. Jaganadha Rao and T.V.R. Tatachari, for the
Advocate-General for the State of Andhra Pradesh.
B. Sen, S.C. Bose and P.K. Bose, for the
Advocate-General for the State of West Bengal.
G.C. Kasliwal, Advocate-General, State of
Rajasthan, M. V. Goswami, for the State of Rajasthan.
S.P. Varma, for the Advocate for the State of
Bihar.
J.P. Goyal, for M/s. Keshav Singh and B.
Soloman.
M. K.. Nambyar and N. N. Keswani, for Bar
Council of India.
M. K. Nambyar, Chaudhury Hyder Hussain, B. K.
Dhawan, Bishun Singh, Shiv Sastri and S. S. Shukla, for Oudh Bar Association.
425 R. Jethmalni, P.K. Kapila and A. K. Nag,
for Western India Advocates Association (Intervener).
S. N. Kakar, C. S. Saran, G. P. Gupta, and S.
C. Agarwal, for Allahabad High Court Bar Association (Intervener).
M.K. Nambyar and V.A. Seyid Muhammad, for Bar
Association of India (Intervener).
R. V. S. Mani, Shaukat Husain, E. C.
Agarwala, Shahzadi Mohiuddin and O. C. Agarwal, for Applicants-Interveners: (a)
Lok Raksha Samaj (Sewak), (b) All India Civil Liberties Council (c) Sapru Law
Society.
M. K. Rama murthi, R. K. Garg, D. P. Singh
and S. C. Agarwal for Applicant-Intervener Delhi Union of Journalists.
K. Rajendra Chaudhury and K. R. Chaudhury,
for Applicant Intervener, Bihar Working Journalists Union.
Chinta Subba Rao, for Applicant-Intervener,
Institute of Public Opinion.
GAJENDRAGADKAR C.J. delivered the Opinion on
behalf of SUBBA RAO, WANCHOO, HIDAYATULLAH, SHAH AND RAJGOPALA AYYANGAR JJ.
and himself. SARKAR J. delivered a separate
Opinion.
Gajendragadkar C.J. This is Special Reference
No. 1 of 1964 by which the President has formulated five questions for the
opinion of this Court under Article 143(1) of the Constitution. The Article
authorises the President to refer to this Court questions of law or fact which
appear to him to have arisen or are likely to arise and which are of such a
nature and of such public importance that it is expedient to obtain the opinion
of the Supreme Court upon them.
Article 143(1) provides that when such
questions are referred to this Court by the President, the Court may, after
such hearing as it thinks fit, report to the President its opinion thereon. In
his Order of Reference made on March 26, 1964, the President has expressed his
conclusion that the questions of law set out in the Order of Reference are of
such a nature and of such public importance that it is expedient that the
opinion of the Supreme Court of India should be obtained thereon.
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 426 the breach of privileges in question arose because,
of a pamphlet which was printed and published and which bore the signature of
Keshav Singh along with the signatures 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 fetter 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
Keshav Singh be detained in the District Jail, Lucknow, for a Period of seven
days, and in execution of the warrant Keshav Singh was detained in the Jail.
On March 19, 1964, Mr. B. Solomon, an
Advocate practising before the Lucknow Bench of the Allahabad High Court,
presented a petition to the High Court on behalf of Keshav Singh under section
491 of the Code of Criminal Procedure, 1898, as well as under Article 226 of
the Constitution. To this petition were implemented the speaker of the House,
the House, the Chief Minister of Uttar Pradesh and the Superintendent of the
District Jail, Lucknow, where Keshav Singh was serving the sentence of
improvement imposed on him by the House, as respondents 1 to 4 respectively.
The petition thus presented on behalf of Keshav Singh alleged that his
detention in jail was illegal on several grounds.
According to the petition, Keshav Singh had
been ordered to be imprisoned after the reprimand had been administered to him,
and that made the order of imprisonment illegal and without authority. 'Me
petition further alleged that Keshav Singh had not been given an opportunity to
defend himself and that his detention was mala fide and was against the
principles of natural justice. It was also his case that respondents 1 to 3 had
no authority to send him to the District Jail, Lucknow, and that made his
detention in jail illegal.
After the said petition was filed before the
Lucknow Bench of the Allahabad High Court, the learned Advocates for both the
parties appeared before Beg and Sahgal JJ. at 2 P.m. and agreed that the
petition should be taken up At 3 P.M. the same day. Mr. Solomon represented
keshav Singh and Mr. K. N. Kapur, Assistant Government Advocate, appeared for
all the respondents. Accordingly, the petition was taken up before the Court at
3 P.m. On this occasion, Mr. Solomon appeared for the petitioner but Mr. Kapur
did not appear in Court. The Court then passed an Order that the applicant
should be released on bail 427 on furnishing two sureties in a sum of Rs. 1,000
each and a personal bond in the like amount to the satisfaction of the District
Magistrate, Lucknow. The Deputy Registrar of the Court was asked to take
necessary action in connection with the Order. The Court also directed that the
applicant shall remain present in Court at every hearing of the case in future.
Thus, the petition was admitted and notice was ordered to be issued to the
respondents with the additional direction that the case should be set down for
hearing as early as possible. This happened on March .19, at 3 P.m.
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
which 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.
Instead of complying with the request made by
the Government Advocate and instructing him to file a return in the application
made by Keshav Sin , the House proceeded to take action against the two learned
Judes why passed the order on Keshav Singh's application, as well as Keshav
Singh and his Advocate, on March 21, 1964. It appears that two Members of the
House brought to the notice of the Speaker of the House on the 20th March what
had happened before the Court in regard to the application made by Keshav
Singh. Taking notice of the order passed by the High Court on Keshav Singh's
petition, the House proceeded to pass a resolution on March 21, 1964. This
resolution said that the. House Was of the denote view at M/s. G. D. Sahgal, N.
U. Beg.
Keshav Singh and P. Solomon had committed
contempt of the House and therefore, it was ordered that Keshav Singh Should
immediately be taken into custody and kept confined in the District Jail,
Lucknow, for the remaining term of his imprisonment and M/s. N. U. Beg, D.
Sahgal and B. Solomon should 428 be brought in custody before the House. The
resolution further added that after Keshav Singh completed the term of his
imprisonment, he should be brought before the House for having again committed
contempt of the House on March 19, 1964.
The two learned Judges heard about this
resolution on the radio on the evening of March 21, and read about it in the
morning edition of the Northern India Patrika published on March 22, 1964. That
is why they rushed to the Allahabad High Court with separate petitions under
Art. 226 of the Constitution. petitions alleged that the impugned Resolution
passed by the House was wholly unconstitutional and violated the provisions of
Art. 211 of the Constitution. According to the petitions, the application made
by Keshav Singh under Art. 226 was competent and in making an order releasing
Keshav Singh, the Judges were exercising their jurisdiction and authority as
Judges of the High Court under Art. 226.
Their contention was that the resolution
passed by the House amounted to contempt of Court, and since it was wholly
without jurisdiction, it should be set aside and by an interim order its
implementation should be stayed. To these petitions were impleaded as
respondents Mr. Verma, the Speaker, Vidhan Sabha, Lucknow, the State of Uttar
Pradesh and the Marshal, Vidhan Sabha. These petitions were filed on March 23,
1964.
Apprehending that these developments had
given rise to a very serious problem, a Full Bench of the Allahabad High Court
consisting of 28 Judges took up on the same day the petitions presented before
them by their two colleagues at Lucknow, directed that the said petitions
should be admitted and ordered the issue 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.
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 had 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;
429 Mr. Saran and Mr. Ahmad, Members of the
Legislative Assembly, U.P., who brought to the notice of the House the orders
passed by the two learned Judges of the High Court;
and the State of Uttar Pradesh.
This application again was heard by a Full
Bench of 28 Judges of the Allahabad High Court on March 25, and after admitting
the petition, an interim order was passed prohibiting the implementation of the
resolution the validity of which was challenged by the petitioner. At the
preliminary hearing of this petition, notice had been served on the Senior
Standing Counsel who was present in Court. He stated to the Court that he had no
instructions at that stage to oppose the application. That is why the Court
issued notice of the application and passed what it thought would be
appropriate orders.
On the same day, the House passed a
clarificatory resolution. This resolution began with the statement that a
misgiving was being expressed with regard to the motion passed by the House in
that it could be construed as depriving the persons concerned of an opportunity
of explanation, and it added that it was never the intention of the House that
a charge against a High Court Judge for committing breach of privilege or
contempt of the House, should be disposed of in a manner different from that
governing breach of privilege or contempt committed by any other person. The
House, therefore, resolved that the question of contempt may be decided after
giving an opportunity of explanation to the persons named in the original
resolution of March 20, 1964 according to rules.
As a result of this resolution, the warrants
issued for the arrest of the two learned Judges and Mr. Solomon were withdrawn,
with the result that the two learned Judges and Mr.
Solomon were placed under an obligation to
appear before the House and offer their explanations as to why the House should
not proceed against them for their alleged contempt of the House.
When the incidents which happened in such
quick succession from March 19 to March 25, 1964, had reached this stage, the
President decided to exercise his power to make a reference to this Court under
Art. 143(1) of the Constitution on March 26, 1964. The Order of Reference shows
that it appeared to the President that the incidents in question had given rise
to a serious conflict between a High Court and a State Legislature which
involved important and complicated questions of law regarding the powers and
jurisdiction of the High Court and its Judges in relation to the State
Legislature and its officers and regarding the 430 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.
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 Predesh 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;
(2) Whether, on the facts and circumstances
of the case, Mr. Keshav Singh, by causing the petition to be presented on his
-behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon,
Advocate, by presenting the said petition and the said two Hon'ble' Judges by
entertaining and dealing with the said petition and ordering the release of
Shri Keshav Singh on bail pending disposal of the said petition committed
contempt of the Legislative Assembly of Uttar Pradesh;
(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 Mr. B. Solomon,
Advocate, before it in custody or to call for their explanation for its
contempt;
(4) Whether, on the facts and circumstances
of the case, it was competent for the Full Bench of the High Court of Uttar
Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges
and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speker
of the Legislative Assembly 431 of Uttar Pradesh and other respondents to the
said petitions from implementing the aforesaid direction of the said
Legislative Assembly;
and (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.
At the hearing of this Reference, Mr. Varma
has raised a preliminary objection on behalf of the Advocate General of Bihar.
He contends that the present Reference is invalid under Art. 143(1) because the
questions referred to this Court are not related to any of the entries in Lists
1 and III and as such, they cannot be said to be concerned with any of the
powers, duties or functions conferred on the President by the relevant articles
of the Constitution. The argument appears to be that it is only in respect of
matters failing within the powers, functions and duties of the President that
it would be competent to him to frame questions for 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
thinking fit, report to 'the, President 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 opt 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 having regard to other relevant
facts and circumstances.
Art. 143 (2) 432 deals with cases in which
the President may refer a dispute to this Court notwithstanding the prohibition
prescribed by the proviso to Art. 131, and it adds that when such a reference
is made, the Court shall, after such hearing as it thinks fit, report to the
President its opinion thereon. In other words, whereas in the case of reference
made under Art. 143(2) it is the constitutional obligation of this Court to
make a report on that reference embodying its advisory opinion, in a reference
made under Art. 143(1) there is no such obligation. In dealing with this latter
class of reference, it is open to this Court to consider whether it should make
a report to the President giving its advisory opinion on the questions under
reference.
This position, however, has no bearing on the
question raised by Mr. Varma. The validity of the objection raised by Mr. Varma
must be judged in the light of the words of Art. 143(1) themselves and these
words are of such wide amplitude that it would be impossible to accede to the
argument that the narrow test suggested by Mr. Varma has to be applied in
determining the validity of the reference itself. What Art. 143(1) requires is
that the President should be satisfied that a question of law or fact has
arisen or is likely to arise. He should also be satisfied that such a question
is of such a nature and of such public importance that it is expedient to
obtain the opinion of this Court on it. Prima facie, the satisfaction of the
President on both these counts would justify the reference, and it is only
where this Court feels that it would be inadvisable for it to express its
advisory opinion on it that it may respectfully refuse to express any opinion.
But there can be no doubt that in the present case it would be impossible to
suggest that questions of fact and law which have been referred to this Court,
have not arisen and they are not of considerable public importance. Therefore,
we do not think there is any substance in the preliminary objection raised by
Mr. Varma.
The references made to this Court since the
Constitution was adopted in 1950 illustrate how' it would be inappropriate to
apply the narrow test suggested by Mr. Varma in determining the competence or
validity of the reference. The first Special Reference No. 1 of 1951 was made
to this Court to obtain the advisory opinion of this Court on the question
about the validity and constitutionality of the material provisions of the Delhi Laws
Act, 1912, the Ajmer Merwara (Extension of Laws) Act, 1947, and the Part C
States (Laws) Act, 1951(1). The second Special (1) In re: the Delhi Laws Act,
1912, [1951] S.C.R. 747.
433 Reference(1) 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(1) 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 Prime Ministers of India and Pakistan which was described as the
Indo-Pakistan Agreement. The fourth Special Reference(2) was made in 1962. 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 intended to be moved in the Parliament with a view to amend certain
provisions of the Sea Customs Act, 1878
and the Central Excises and Salt Act, 1944. It would
thus be seen that the questions so far referred by the President for the
advisory opinion of this Court under Art.
143 (1) do not disclose a uniform pattern and
that is quite clearly consistent with the broad and wide words used in Art.
143(1).
It is hardly necessary to emphasise that the
questions of law which have been forwarded to this Court on the present
occasion are of very great constitutional importance. The incidents which have
given rise to this Reference posed a very difficult problem and unless further
developments in pursuance of the orders passed by the two august bodies were
arrested, they were likely to lead to a very serious and difficult situation. That
is why the President took the view that a case for reference for the advisory
opinion of this Court had been established and he accordingly formulated, five
questions and has forwarded the same to us for our advisory opinion. Under Art.
143(1) it may be competent to the President to formulate for the advisory
opinion of this Court questions of fact and law relating to the validity of the
impinged provisions of existing laws; it may be open to him to formulate
questions in regard to the validity of provisions proposed to be included in
the Bills which would come before the Legislatures; it may also be open to him
to formulate for the advisory opinion of this Court questions of constitutional
importance like the present; and it may be that the President may, on receiving
our answers consider whether the Union Government or the State Government
should be requested to take any, suitable or appropriate action, either
legislative or executive in (1) In re the Kerala Education Bill, 1957, [1959]
S.C.R.
995.
(2) In re: the Berubari Union, [1960] 3
S.C.R. 250, (3) In re: the Bill to Amend Sea Customs Act
etc. [1964] 3 S.C.R. 787.
434 accordance with the opinion expressed by
this Court. That is why we feel no difficulty in holding that the present
Reference is competent.
As we have already indicated, when a
Reference is received by this Court -under Art. 143(1), this Court may, in a
given case, for sufficient and satisfactory reasons, respectfully refuse to
make a report containing its answers on the questions framed by the President;
such a situation may perhaps arise if the questions formulated for the advisory
opinion of this Court are purely socioeconomic or political questions which
have no relation whatever with any of the provisions of the Constitution, or
have otherwise no constitutional 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, or have used the word 'may' in Art.
143 (1) as distinct from Art. 143 (2) "are the word used is 'shall'. In
the present case, we are clearly of opinion that the 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.
That takes us to the merits of the
controversy disclosed by the questions 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. Seers, the learned
Advocate-General of Maharashtra, appeared for the House and presented before
the Court a very learned, impressive and exhaustive argument. He, was followed
by several learned counsel who broadly supported the stand taken by the House.
Mr. Setalvad who appeared for the Judges of the Allahabad High Court, addressed
to us a very able argument With his characteristic brevity and lucidity;
and he was, in turn, followed by several
learned counsel who appeared to support the stand taken by the Judges. Durng
the course of the debate several propositions were canvassed before us and a
very large area of constitutional law was covered. We ,ought, therefore to make
it clear at the outset that in formulatingour answers to the questions framed
by the President in the present Reference, we propose to deal with only such
points as, in our opinion, have a direct and material bearing on the problems
posed by the said questions. It is hardly necessary to emphasise that in
dealing With constitutional matters, the Court 435 should be slow to deal with
questions which do not strictly arise. This precaution is all the more'
necessary in dealing with a reference made to this Court under Art.
143(1).
Let us then begin by stating broadly the main
contentions urged on behalf of the House and on behalf of the Judges and the
Advocate. Mr. Seervai began his arguments by pointing out the fact that in
dealing with reference under Art.
143(1), the Court is not exercising what may
be described as its judicial function. There are no parties before the Court in
such a reference and there is no his. The opinion expressed by the Court on the
reference is, therefore, advisory; and so, he contends that though ha appears
before us in the present reference on behalf' of the House, he wants to make it
clear that the House does not submit to the jurisdiction of this Court in any
manner in respect of the area of controversy covered by the questions. In other
words, he stated that his appearance before us was without prejudice to his
main contention that the question about the existence and extent of the powers,
privileges and immunities of the House, as well as the question about the
exercise of the powers and privileges were entirely and exclusively within the
jurisdiction of the House; and whatever this Court may say will not preclude
the House from deciding for itself the points referred to us under this
Reference. This stand was based on the ground that the opinion "pressed by
us is advisory and not in the nature of a judicial adjudication between the
parties before the Court as such The same stand was taken by Mr. Seervai in
regard to Art.
194(3) 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.
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 continue& 436 to be unresolved. On some occasions,
the dispute between the Judicature and the House of Commons has assumed a very
bitter form and it has disclosed a complete antinomy or contradiction in the
attitudes adopted by the two respective august bodies. The courts claimed that
they had a right to decide the question about the existence and extent of
powers and privileges in question and the Parliament consistently refused to
recognise the jurisdiction of the courts in that behalf during the 17th, 18th
and 19th centuries. The Parliament conceded that it could not create any new
privileges, but it insisted on treating itself as the sole and exclusive judge
of the existing privileges and was not prepared to part with its authority to
determine what they were, or to deal with their breach, and how to punish the
delinquent citizens. On the other hand, the courts insisted on examining the
validity of the orders passed by the Parliament on the ground of breach of
privilege, and the dualism thus disclosed persisted for many years.
Mr. Seervai 'argues that the House for which
he appears adheres to the stand which the House of Commons took in similar
controversies which led to a conflict between the Judicature and itself on
several occasions in the past.
Consistently with this attitude, be denies
the jurisdiction of the Allahabad High Court to deal with the points raised by
Keshav Singh in his writ petition. Logically, his argument is that the
presentation of the petition by Keshav Singh and his Advocate amounted to
contempt of the House, and when the learned Judges entertained the petition and
passed an interim order on it, they committed contempt of the House. That is
the view taken by the House, and the propriety, correctness, or validity of
this view is not examinable by the Judicature in this country.
Alternatively, Mr. Seervai put his argument
on a slightly different basis. He conceded that for over a century past, in
England, this controversy can be taken to have been settled to a large extent
by agreement between the Judicature and the House of Commons. It now appears to
be recognised by the House of Commons that the existence and extent of
privilege can be examined by the courts. It also appears to be recognised by
the House of Commons that if in exercise of its power to punish a person for
its contempt, it issues a speaking warrant, it would be open to the court 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 437 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 nature 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 in pursuance of the said resolution, were
in the nature of general resolution and general warrants, and so, it would not
be open to this Court to enquire the reasons for which the said warrants were
issued. The resolution in question and the warrants issued pursuant to it are
conclusive and must be treated as such.
The argument, therefore, is that in answering
the question formulated under the present Reference, we should give effect to
this position which appears to have been evolved by some sort of implied agreement
between the Judicature and the House of Commons. This agreement shows that the
right to determine questions of contempt and to decide adequacy of punishment
for the said contempt belong exclusively to the House, and if in pursuance of
the said exclusive power, a general warrant is issued, the House can never be
called upon to explain the genesis or the reasons for the said warrant. This
itself is an integral part of the privileges and powers of the House, and this
integral part, according to the House, has been brought into India as a result
of Art. 194(3) of the Constitution. In other words, the argument is that even
if this Court has jurisdiction to determine the scope and effect of Art.
194(3), it should bear in mind the fact that this particular Power to issue an
unspeaking general warrant and to insist upon the Judicature treating the said
warrant as conclusive, is a part of the privileges to which the latter part of
Art. 194(3) refers.
It is on this broad ground that Mr. Seervai
wanted us to frame our answers to the questions which are the subjectmatter of
the Reference.
On the other hand, Mr. Setalvad, for the
Judges, contends that there is no scope for importing into our Constitution the
dualism which existed in England between the Judicature and the House of
Commons. He contends that there can be no doubt 438 that the question of
construing Art. 194(3) falls within the exclusive jurisdiction of this Court
and the High Courts and that the construction which this Court would place upon
the relevant words used in the latter part of Art. 194(3) would finally
determine the scope, extent and character of the privileges in question.
According to Mr. Setalvad, Art.
194(3) cannot be read in isolation, but must
be read in its context and in the light of other important constitutional
provisions, such as Arts. 32, 211 and 226. When the material portion 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 Judas 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 Legislature.
Mr. Setalvad conceded that there appears to
be some convention recognised by the English courts by which they treat a
general or unspeaking warrant issued by the House as usually-conclusive; but
this aspect of the matter, according to him, is the result of convention or
comity and cannot be treated as an integral part of the, privilege of the House
itself. The basis for -evolving this con I mention is rooted in the history of
England, because the Parliament was the highest Court of Justice at one time
and it is because of this history that the House of Commons came also to be
regarded as a superior Court of Record. Such 'at assumption cannot be made in
respect of the House in the present proceedings. Besides, in dealing with the question
about the effect of a general warrant, the Court cannot ignore the significance
of Arts. 32, 211 and 226 of the Constitution.
Basing himself broadly on these arguments,
Mr. Setalvad contends that the Constitution has resolved the problem of dualism
in our country by 439 conferring on the High Courts and this Court the
jurisdiction to deal with claims made by the citizens whose fundamental rights
have been invaded, and that means that in this country, if an application for
habeas corpus is made, it would be competent to. this Court or the High Courts
to examine the validity of the order passed by any authority including the
Legislature, and that must necessarily involve the consequence that an
unspeaking warrant cannot claim the privilege of conclusiveness. That, in
brief, in its broad features, is the approach adopted by Mr. Setalvad before
us.
It will thus be seen that the main
controversy disclosed by the five questions formulated by the President
ultimately lies within a very narrow compass. Is the House the sole and
exclusive judge of the issue as to whether its contempt has been committed
where the alleged contempt has taken place outside the four walls of' the House
? Is the House the sole and exclusive judge of the punishment which should be imposed
on the party whom it has found to be guilty of its contempt ? And, if in
enforcement of its decision the House issues a general or unspeaking warrant,
is the High Court entitled to entertain a habeas corpus petition challenging
the validity of the detention of the person sentenced by the House ? The,
argument urged by Mr. Seervai on behalf of the House is that 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 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.
It is not seriously disputed by Mr. Setalvad
that the House has the power to inquire whether its contempt has been committed
by anyone even outside its four-walls and has the power to impose punishment
for such contempt; but his argument is that having regard to the material
provisions of our Constitution, it would not be open to the House to make a
claim that its general warrant should be treated as conclusive. In every case
where a party has been Sentenced by the House for contempt and detained, it
would be open to him to move the High Court for appropriate relief under Art.
226 and the High Court would be entitled to
examine the merits of his pleas, even though the warrant may be general
P.C.I./65-3 440 or unspeaking. According to Mr. Setalvad, since the High Court
has jurisdiction to entertain a Writ Petition for habeas corpus under Art. 226,
it has also the power to pass an order of interim bail. Thus, the dispute
really centers round the jurisdiction of the High Court to entertain a habeas
corpus petition even in cases where a general or unspeaking warrant has been
issued by the House directing the detention of the party in contempt.
Though the ultimate solution of the problem
posed by the questions before us would thus he within a very narrow compass, it
is necessary to deal with some wider aspects of the problem which incidentally
arise and the decision of which will assist us in rendering our answers to the
questions framed in the present Reference. The whole of the problem thus
presented before us has to be decided in the light of the provisions contained
in Art. 194 (3 ) of the Constitution, and in that sense, the interpretation of
Art.
194(3) is really the crux of the matter. At
this stage, it is necessary to read Article 194 :
"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 Parliament of the United Kingdom, and of its
members and committees, at the commencement of this Constitution.
(4) The provisions of clauses (1), (2) and
(3) shall apply in relation to persons who by virtue of this Constitution have
the right to speak in, and otherwise to take part 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."' 441 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 emphasis
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." Therefore, clause (1) confers on
the legislators specifically the right of freedom of speech subject to the
limitation prescribed by its first part. It would thus appear that by making
this clause subject only to the specified provisions of the Constitution, the
Constitution-makers wanted to make it clear that they thought it necessary to
confer on the legislators freedom of speech separately and, in a sense,
independently of Art. 19(1)(a). If all that the legislators were entitled to
claim was the freedom of speech and expression enshrined in Art. 19(1)(a), it
would have been unnecessary to confer the same right specifically in the manner
adopted by Art. 194(1); and so, it would be legitimate to conclude that Art.
19(1)(a) is not one of the provisions of the Constitution which controls the
first part of clause (1) of Art. 194.
Having conferred freedom of speech on the
legislators, clause (2) emphasises the fact that the said freedom is intended
to be absolute and unfettered. Similar freedom is guaranteed to the legislators
in respect of the votes they may give in the Legislature or any committee
thereof. In other words, even if a legislator exercises his right of freedom of
speech in violation, say, of Art. 21 1, he would not be liable for any action
in any court. Similarly, of the legislator by his speech or vote, is alleged to
have violated any of the fundamental rights guaranteed by Part III of the
Constitution in the Legislative Assembly, he would not be answerable for the
said contravention in any court. If the impugned speech amounts to libel or
becomes actionable or indictable under any other provision of the law, immunity
has been conferred on him from any action in any court by this clause. He 442
may be answerable to the House for such a speech and the Speaker may take
appropriate action against him in respect of it; but that is another matter. It
is plain that the Constitution-makers attached so much importance to the
necessity of absolute freedom in debates within the legislative chambers that
they thought it necessary to confer complete immunity on the legislators from
any action in any court in respect of their speeches in the legislative
chambers in the wide terms prescribed by clause (2). Thus, clause (1) confers
freedom of speech on the legislators within the legislative chamber and clause
(2) makes it plain that the freedom is literally absolute and unfettered.
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 cl. (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).
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-known that out of a large number of privileges and powers which the
House of Commons claimed during the days of its bitter struggle for
recognition, some were given up in course of time, and some virtually faded out
by desuetude; and so, in every case where a power is claimed, it is necessary
to enquire whether it was an existing power at the relevant time. It must also
appear that the said power was not only claimed by the House of Commons, but
was recognised by the English Courts. It would obviously be idle to contend
that if a particular power which is claimed by the House was claimed by the
House of Commons but was not recognised by the English courts, it would still
be upheld under the latter part of clause (3) only on the ground that it was in
fact claimed by the House of Commons. In other words, the inquiry which is
prescribed by this clause is : is 443 the power in question shown or proved to
have subsisted in the House of Commons at the relevant time ? Clause (4)
extends the provisions prescribed by the three preceding clauses to certain
persons therein described.
It will thus be seen that all the four
clauses of Art. 194 are not in terms made subject to the provisions contained
in Part In. In fact, clause (2) is couched in such wide terms that in
exercising the rights conferred on them by cl. (1), if the legislators by their
speeches contravene any of the fundamental rights guaranteed by Part III, they
would not be liable for any action in any court. Nevertheless, if for other
valid considerations, it appears that the contents of cl. (3) may not exclude
the applicability of certain relevant provisions of the Constitution, it would
not be reasonable to suggest that those provisions must be ignored just because
the said clause does not open with the words "subject to the other
provisions of the Constitution." In dealing with the effect of the
provisions contained in cl. (3) of Art. 194, wherever it appears that there is
a conflict between the said provisions and the provisions pertaining to
fundamental rights, an attempt win have to be made to resolve the said conflict
by the adoption of the rule of harmonious construction. What would be the
result of the adoption of such a rule we need not stop to consider, at this
stage. We will refer to it later when we deal with the decision of this Court
in Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Others(1).
The implications of the first part of clause
(3)may, however, be examined at this stage. The question is, if the Legislature
of a State makes a law which prescribes 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 (3), it would be law
within the meaning of Art. 13 and clause (2) of Art. 13 would render it void if
it contravenes or abridges the fundamental rights guaranteed by Part M. As we
will presently point out, that is the effect of the decision of this Court in
Pandit Sharma's(1) case. In other words, it must now be taken as settled (1)
[1959] Supp. 1 S.C.R. 806.
444 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 satisfy the test prescribed by the fundamental rights guaranteed by the
Constitution. If that be so, it becomes at once material to enquire whether the
Constitution-makers had really intended that the limitations prescribed by the
fundamental rights subject to which alone a law can be made by the Legislature
of a State prescribing its powers, privileges and immunities, should be treated
as irrelevant in construing the latter part of the said clause.
The same point may conveniently be put in
another form. If it appears that any of the powers, privileges and immunities
claimed by the House are inconsistent with the fundamental rights guaranteed by
the Constitution, how is the conflict going to be resolved. Was it the
intention of the Constitution to place the powers, privileges and immunities
specified in the latter part of cl. (3) on a much higher pedestal than the law
which the Legislature of a State may make in that behalf on a future date ? As
a matter of construction of clause (3), the fact that the first part of the
said clause refers to future laws which would be subject to fundamental rights,
may assume significance in interpreting the latter part of clause (3). That, in
brief, is the position of the first three material provisions of Art. 194.
The next question which faces us arises from
the preliminary contention raised by Mr. Seervai that by his appearance before
us on behalf of the House, the House should not be taken to have conceded to
the Court the jurisdiction to construe Art. 194(3) so as to bind it. As we have
already indicated, his stand is that in the matter of privileges, the House is
the sole and exclusive judge at all stages. It may be that technically, the
advisory opinion rendered by this Court on the Reference made to it by the
President may not amount to judicial adjudication properly so-called and since
there are no parties as such before the Court in the Reference, nobody would be
bound by our answers. But apart from this technical aspect of the matter, it is
necessary that we should determine the basic question as to whether even in the
matter of privileges, the Constitution confers on the House sole and exclusive
jurisdiction as claimed by Mr. Seervai. It is common ground that the powers
have to be found in Art. 194(3). That provision is the sole foundation of the
powers, and no power which is not included in it can be claimed by the House;
and so, at the very 'threshold of our discussion, we must decide this question.
In dealing with this question, it is necessary
to bear in mind one fundamental feature of a federal constitution. In England,
445 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(1). 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 and
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 requirements of
States which are desirous of union, but not prepared to merge their
individuality in a unity. This supremacy of the constitution is protected by
the authority of an independent judicial body to act as the interpreter of a
scheme of distribution of powers. Nor is any, change possible in the
constitution by the ordinary process of federal or State legislation(2). Thus
the dominant characteristic of the British Constitution cannot be claimed by a
federal constitution like ours.
Our Legislatures have undoubtedly plenary
powers, but these powers are controlled by the basic concepts of the written
Constitution itself and can be exercised within the legislative fields allotted
to their jurisdiction by the three Lists under the Seventh Schedule; but beyond
the Lists, the Legislatures cannot travel. They can no doubt exercise their
plenary legislative authority and discharge their legislative functions by
virtue of the powers conferred on them by the relevant provisions of the
Constitution; but the basis of the power is the Constitution itself. Besides,
the legislative supremacy of our Legislatures including the Parliament is
normally controlled by the provisions contained in Part III of the
Constitution.
If the Legislatures step beyond the
legislative fields assigned to them, or acting within their respective fields,
they trespass on the fundamental rights of the citizens in a manner not
justified by the relevant articles dealing with the said fundamental rights;
their legislative actions are liable to be struck down by courts in India.
Therefore, it is necessary to remember that though our Legislatures have
plenary powers, they function within the limits prescribed by the material and
relevant provisions of the Constitution.
(1) Dicey, The Law of the Constitution 10th
ed. pp. xxxiv, xxxv.
(2) Ibid p. Ixxvii.
446 In a democratic country governed by a
written Constitution, it is the Constitution which is supreme and sovereign. It
is no doubt true that the Constitution itself can be amended by the Parliament,
but that is possible because Art. 368 of the Constitution itself makes a
provision in that behalf, and the amendment of the Constitution can be validly
made only by following the procedure prescribed by the said article. That shows
that even when the Parliament purports to amend the Constitution, it has to
comply with the relevant mandate of the Constitution itself. Legislators,
Ministers, and Judges all take oath of allegiance to the Constitution, for it
is by the relevant provisions of the Constitution that they derive their
authority and jurisdiction and it is to the provisions of the Constitution that
they owe allegiance. Therefore, there can be no doubt that the sovereignty
which can be claimed by the Parliament in England, cannot be claimed by any
Legislature in India in the literal absolute sense.
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 a 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 authority and
their functions are normally confined to legislative functions, and the
functions and authority of the executive lie -within the domain of executive
authority, so the jurisdiction and authority of the Judicature in this country
lie within the domain of adjudication. If the validity of any law is challenged
before the courts, it is never suggested that the material question as to
whether legislative authority has been exceeded or fundamental rights have been
contravened, can be decided by the legislatures themselves. Adjudication of
such a dispute is entrusted solely and exclusively to the Judicature of this
country; and so, we feel no difficulty in holding that the decision about the
construction of Art. 194(3) must ultimately rest exclusively with the, Judicature
of this country. That is why we must over-rule Mr. Seervai's argument that the
question of determining the nature, scope and effect of the powers of the House
cannot be said to lie exclusively within the jurisdiction of this Court. This
conclusion, however, would not impair the validity of Mr. Seervai's contention
that the advisory opinion 447 rendered by us in the present Reference
proceedings is not adjudication properly so-called and would bind no parties as
such.
In coming to the conclusion that the content
of Art. 194(3) must ultimately be determined by courts and not by the
legislatures, we are not unmindful of the grandeur and majesty of the task
which has been assigned to the Legislatures under the Constitution. Speaking
broadly, all the legislative chambers in our country today are playing a
significant role in the pursuit of the ideal of a Welfare State which has been
placed by the Constitution before our country, and that naturally gives the
legislative chambers a high place in the making of history today. The High
Courts also have to play an equally significant role in the development of the
rule of law and there can be little doubt that the successful working of the
rule of law is the basic foundation of the democratic way of life. In this
connection it is necessary to remember that the status, dignity and importance
of these two respective institutions, the Legislatures and the Judicature, are
derived primarily from 'the status dignity and importance of the respective
causes that are assigned to their charge by the Constitution. These two august
bodies as well as the Executive which is another important constituent of a
democratic State, must function not in antinovel nor in a spirit of hostility,
but rationally, harmoniously and in a spirit of understanding within their
respective spheres, for such harmonious working of the three constituents of
the democratic State alone will help the peaceful development, growth and
stabilization of the democratic way of life in this country.
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 is one of construing the
relevant provisions of +,he Constitution 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 objectivity 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 conclusion that the view pressed before us by Mr. Setalvad for the
High Court Is erroneous, we would not hesitate to pronounce ' our verdict 448
against that view. On the other hand, if we ultimately come to the conclusion
that the claim made by Mr. Seervai for the House cannot, be sustained, we would
not falter to pronounce our verdict accordingly. In dealing with problems of
this importance and significance, it is essential that we should proceed to
discharge our duty without fear or favour, affection or ill-will and with the
full consciousness that it is our solemn obligation to uphold the Constitution
and the laws.
It would be recalled that Art. 194(3)
consists of two parts.
The first part empowers the Legislature to
define by law from time to time its powers, privileges and immunities, whereas
the Second part provides that until the legislature chooses so to define its
powers, privileges and immunities, its powers, privileges and immunities would
be those of the House of Commons of the Parliament of the United Kingdom and of
its members and committees, at the commencement of the Constitution. Mr.
Seervai's argument is that the latter part of Art. 194(3) expressly provides
that all the powers which vested in the House of Commons at the relevant time,
vest in the House. This broad claim, however, cannot be accepted in its entirety,
because there are some powers which cannot obviously be claimed by the House.
Take the privilege of freedom of access which is exercised by the House of
Commons as a body and through its Speaker "to have at all times the right
to petition, counsel, or remonstrate with their Sovereign through their chosen
representative and have a favorable construction placed on his words was justly
regarded by the Commons as fundamental privilege(1)". It is hardly
necessary to point out that the House cannot claim this privilege. Similarly,
the privilege to pass acts of attainder and the privilege of impeachment cannot
be claimed by the House. The House of Commons also claims the privilege in
regard to its own Constitution. This privilege is expressed in three ways, first
by the order of new writs to fill vacancies that arise in the Commons in the
course of a parliament; secondly, by the trial of controverted elections; and
thirdly, by determining the qualifications of its members in cases of doubt(1).
This privilege again, admittedly, cannot be claimed by the House. Therefore, it
would not be correct to say that an powers and privileges which were possessed
by the House of Commons at the relevant time can be claimed by the House.
In construing the relevant provision of Art.
194(3), we must deal with the question in the light of the previous decision of
this (1) Sir T. Erskine May's Parliamentary Practice(16th ed.) p. 86.
(2) lbid, p. 175.
449 Court in Pandit Sharma's(1) case. It is,
therefore, necessary to recall what according to the majority decision in that
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 the Committee contravened his fundamental
right of freedom of speech and expression under Art. 19 (1) (a), and also
trespassed upon the protection of his personal liberty guaranteed under Art.
21. It is on these two grounds that the validity of the notice was impeached by
him. This claim was resisted by the House by relying on Art. 194(3). Two
questions arose, one was whether the privilege claimed by the House was a
subsisting privilege in England at the relevant time; and the other was, what
was the result of the impact of Articles 19 (1) (a) and 21 on the provisions
contained in the latter part of Article 194(3)? The majority decision was that
the privilege in question was subsisting at the relevant time and must,
therefore, be deemed to be included under the latter part of Art. 194 (3). It
also held that Art. 19 (1 )(a) did not apply, because under the rule of
harmonious construction, in a case like the present where Art. 19 (1) (a) was
in direct conflict with Art. 194(3), the particular provision in the latter
article would prevail over the general provision contained in the former; it
further, held that though Art. 21 applied, it had not been contravened.
The minority view, on the other hand, was
that the privilege in question had not been established in fact, and that
alternatively, if it be assumed that such privilege was established and was,
therefore, included under the latter part of Art. 194(3), it must be controlled
by Art. 19(1)(a) on the ground that fundamental rights guaranteed by Part III
of the Constitution were of paramount importance and must prevail over a provision
like that contained in Art. 194(3) which may be inconsistent with them.
At this stage, it would be useful to indicate
broadly the points decided both by the majority and minority decisions in that
case. Before the Court, it was urged by the petitioner that though Art.
(1) [1959] Supp. 1 S.C.R. 806.
450 194(3) had not been made subject to the
provisions of the Constitution, it does not necessarily mean that it is not so
subject, and that the several clauses of Art. 194 should not be treated as distinct
,and separate provisions but should be read as a whole and that, so read, all
the clauses should be taken as subject to the provisions of the Constitution
which, of course, would include Art. 19(1)(a). This argument was rejected both
by the majority and -the minority views.
The next argument urged in that case was that
Art. 194(1) in reality operates as an abridgement of the fundamental right of
freedom of speech conferred by Art. 19(1)(a) when exercised in the State
Legislatures, but Art. 194(3) does not, in terms, purport to be an exception to
Art. 19(1)(a).
This argument was also rejected by both the
majority and the' minority views. It was ,pointed out by the 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 regulate 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).
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.
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 to the
extent it contravenes the fundamental rights enshrined in Part III.
This contention was accepted by both the
majority and the minority decisions.
That left one more point to be considered and
it had reference to the observations made in an earlier decision of this Court
in Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P. (1). The
majority decision has commented on this earlier decision and has observed that
the said decision was based entirely on a concession and cannot, therefore, be
deemed to be a considered decision of this Court. As we will presently point
out, (1) A.I.R. 1954 S.C. 636.
451 the said decision dealt with the
applicability of Art. 22(2) to a case falling under the latter part of Art.
194(3). The minority opinion, however, treated the said decision as a
considered decision which was binding on the Court.
We ought to add that the majority decision,
in terms, held that Art. 21 applied, but, on the merits, it came to the
conclusion that its alleged contravention had not been proved. On the minority
view it was unnecessary to consider whether Art. 21 as such applied, because
the said view treated all the fundamental rights guaranteed by Part III as
paramount and, therefore, each one of them would control the provisions of Art.
194(3).
It would thus be seen that in the case of
Pandit Sharma(1), contentions urged by the petitioner did not raise a general
issue as to the relevance and applicability of all the fundamental rights
guaranteed by Part HI at all. The contravention of only two articles was
pleaded and they were Articles 19(1)(a) and 21. Strictly speaking, it was,
therefore, unnecessary to consider the larger issue as to whether the latter
part of Art. 194(3) was subject to the fundamental rights in general, and
indeed, even on the majority view it could not be said that the said view
excluded the application of all fundamental rights, for the obvious and simple
reason that Art. 21 was held to be applicable and the merits of the
petitioner's argument about its alleged contravention in his case were examined
and rejected. Therefore, we do not think it would be right to read the majority
decision as laying down a general proposition that whenever there is a conflict
between the provisions of the latter part of Article 194(3) and any of the
provisions of the fundamental rights guaranteed by Part III, the latter must
always yield to the former. The majority decision, therefore, must be taken to
have settled that Art. 19(1)(a) would not apply, and Art. 21 would.
Having reached this conclusion, the majority
decision has incidentally commented on the decision in Gunupati Keshavram
Reddy's(2) 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 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 (1) (1959] Supp. 1 S.C.R. 806.
(2) A.I.R. 1954 S.C. 636.
452 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 counsel and cannot
be regarded as a considered opinion on the subject." There is no doubt
that the first part of this comment is not accurate. A concession was made by
the Attorney-General not on a point of law which was decided by the Court, but
on a point of fact; and so, this part of the comment cannot strictly be said to
be justified. It is, however, true that there is no discussion about the merits
of the contention raised on behalf of Mr. Mistry and to that extent, it may
have been permissible to the majority judgment to say that it was not a
considered opinion of the Court. But, as we have already pointed out, it was
hardly necessary for the majority decision to deal with the point pertaining to
the applicability of Art. 22(2), because that point did not arise in the
proceedings before the Court in Pandit Sharma's(1) case. That is why we wish to
make it clear that the orbiter observations made in the majority judgment about
the validity or correctness ,of the earlier decision of this Court in Gunther
Keshavram Reddy's(1) case should not be taken as having decided the point in
question. In other words, the question as to whether Art. 22(2) would apply to
such a case may have to be considered by this Court if and when it becomes
necessary to do so.
Before we part with the decision of this
Court in Pandit Sharma's(1) case, it is necessary to refer to another point.
We have already observed that the majority
decision has accepted the, contention raised by the petitioner in that case
that of a law were passed by the Legislature of a State prescribing its powers,
privileges and immunities as authorised by the first part of Art. 194(3), it
would be subject to Art. 13. Mr. Seervai has attempted to challenge the
correctness of this conclusion. He contends that the power conferred on the
legislatures by the first part of Art. 194(3) is a constitutional power, and
so, if a law is passed in exercise of the said power, it will be outside the
scope of Art. 13. We are unable to accept this contention.
It is true that the power to make such a law
has been conferred on the legislatures by the first part of Art.
194(3); but when the State Legislatures
purport to exercise this power, they will undoubtedly be acting under Art. 246
read with Entry 39 of List IT.. The enactment of such a law cannot be said to
be in exercise of a constituent power, and so, such a law will have to be
treated as a law within the meaning (1) [1959] Supp. 1 S.C.R. 806.
(2) A.I.R. 1954 S. C. 636.
453 of Art. 13. That is the view which the
majority decision expressed in the case of Pandit Sharma(1), 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(1). In that case, the learned Judge has
observed that "[Art. 131 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 in 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 provisions in
Part III which provides for fundamental rights. That, however, is not the
argument of Mr. Setalvad, nor was it the argument urged before this Court in
the case of Pandit Sharma(1). The argument was and is that if in pursuance of
the power conferred by the first part of Art. 194(3) a law is made by the
legislature, it is a law within the meaning of Art. 13, and this argument
proceeds on the words of Art. 13 (2), itself. Art. 13 (2) provides that the
State shall not make any law which takes away or abridges the rights conferred
by Part III and any law made in contravention of this clause shall, to the
extent of the contravention, be void. The law with which we are dealing does
not purport to amend the Constitution and would not, therefore, form part of
the Constitution when it is passed; like other laws passed by the Legislatures
in exercise of the legislative powers conferred on them, this law would also be
law within the meaning of Art. 13, and so, it is unreasonable to contend that
the view taken by this Court in the case of Pandit Sharma(,,) that such a law
would be subject to the fundamental rights and would fall within the mischief
of Art. 13(2), requires reconsideration. The position, therefore, is that,in
dealing with the present dispute we ought to proceed on the basis that the
latter part of Art.
194(3) is not subject to Art. 19(1) (a), but
is subject to Art. 21.
The next question which we ought to consider
is : was it the intention of the Constitution to perpetuate the dualism which
(1) [1959] Supp. 1 S. C. R. 806.
(2) I.L.R. (1952] Mad. 933, 951.
454 rudely disturbed public life in England
in the 17th, 18th and 19th centuries ? The Constitution-makers were aware of
several unhappy situations which arose as a result of the conflict between the
Judicature and the Houses of Parliament and they knew that these situations
threatened to create a deadlock in the public life of England. When they
enacted Art. 194(3), was it their intention to leave this conflict at large, or
have they adopted a scheme of constitutional provisions to resolve that conflict
? The answer to this question would obviously depend upon a harmonious
construction of the relevant provisions of the Constitution itself.
Let us first take Art. 226. This Article
confers very wide powers on every High Court throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases any Government, within those
territories directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them
for the enforcement of any of the rights conferred by Part HI and for any other
purpose. It is hardly necessary to emphasis 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 a
guaranteed fundamental right, and so, what we have said about Art. 226(1) is
still more true about Art.
32(1).
Whilst we are considering this aspect of the
matter, it is relevant to emphasise that the conflict which has arisen between
the High Court and the House is, strictly speaking, not a conflict between the
High Court and the House as such, but between the House and a citizen of this
country. Keshav Singh claims certain fundamental rights which are guaranteed by
the Constitution and he seeks to move the High Court under Art. 226 on the
ground that his fundamental rights have been contravened illegally. The High
Court purporting to exercise its power under Art. 226(1), 455 seeks to examine
the merits of the claims made by Keshav Singh and issues an interim order. It
is this interim order which has led to the present unfortunate controversy. No
doubt, by virtue of the resolution passed by the House requiring the Judges to
appear before the Bar of the House to explain their conduct, the controversy
has developed into one between the High Court and the House; but it is because
the High Court in the discharge of its duties as such Court intervened to
enquire into the allegations made by a citizen that the Judges have been
compelled to enter the arena.
Basically and fundamentally, the controversy
is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative
Assembly. That is why in dealing with the question about the extent of the
powers of the House in. dealing, with cases of contempt committed outside its
four-walls, the provisions of Art. 226 and Art. 32 assume significance. We have
already pointed out that in Pandit Sharma(1) this Court has held that Art. 21
applies where powers are exercised by the legislature under the latter part of Art.
194(3). If a citizen moves the High Court on the ground that his fundamental
right under Art. 21 has been contravened, the High Court would be entitled to
examine his claim, and that itself would introduce some limitation on the
extent of the powers claimed by the House in the present proceedings.
There are two other articles to which
reference must be made. Art. 208(1) provides that a House of the Legislature of
a State may make rules for regulating, subject to the provisions of this
Constitution, its procedure and the conduct of its business. This provision
makes it perfectly clear that if the House were to make any rules as prescribed
by it, those rules would be subject to the fundamental rights guaranteed by
Part M. 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.
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) (1)
[1959] pp. 1 S.C.R. 806.
Sup.C.I.165-4 456 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 procedure is illegal and unconstitutional, it would
be open to be scrutinised in a court of law, though such scrutiny is prohibited
if the complaint against the procedure is no more than this that the procedure
was irregular. That again is another indication which may afford some
assistance in construing the scope and extent of the powers conferred on the
House by Art. 194(3).
That takes us to Art. 211. This article
provides that no discussion shall take place in the Legislature of a State with
respect to the conduct of any Judge of the Supreme Court or of a High Court in
the discharge of his duties.
This provision amounts to an absolute
constitutional prohibition against any discussion in the Legislature of a State
in respect of the judicial conduct of a Judge of this Court or of the High
Court. Mr. Setalvad who appeared for the Judges has, based his argunent
substantially on the provisions of this article. He contends that the
unqualified and absolute terms in which the constitutional prohibition is
couched in Art. 211 unambiguously indicate that the conduct of a Judge in the
discharge of his duties can never become the subjectmatter of any action taken
by the House in exercise of its powers or privileges conferred by the latter
part of Art. 194(3). If a Judge in the discharge of his duties commits contempt
of the House, the only step that can be taken against him is prescribed by Art.
121. Art. 121 provides that no discussion shall take place in Parliament with
respect to the conduct of any Judge of the Supreme Court or of a High Court in
the discharge of his duties except upon a motion for presenting an address to
the President praying for the removal of the Judge as hereinafter provided.
Reading Articles 121 and 211 together, two points clearly emerge. The judicial
conduct of the Judge cannot be discussed in the State Legislature.
It can be discussed in the Parliament only
upon a motion for presenting an address to the President praying for the
removal of the Judge. The Constitution-makers attached so much importance to
the independence of the Judicature in this country that they thought it
necessary to place them beyond any controversy, except in the manner provided
by Art. 121. If the judicial conduct of a Judge cannot be discussed in the
House, it is inconceivable that the same conduct can be legitimately made the
subject-matter of action by the House 457 in exercise of its powers under Art.
194(3). That, in substance, is the principal argument which has been urged
before us by Mr. Setalvad.
On the other hand, Mr. Seervai has argued
that the effect of the provisions contained in Art. 211 should not be
exaggerated. He points out that Art. 211 appears in Chapter HI 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. 21 1, no action can be taken against
him in a court of law and that, says Mr. Seervai, shows that the significance
of the prohibition contained in 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(1).
In that cases, this Court was dealing with
the effect of the provisions contained in Art. 320 of the Constitution. Art.
320 prescribes the functions of the Public
Service Commissions, and by clause 3(c) it has provided that the Union Public
Service Commission or the State Public Service Commission, as the case may be,
shall be consulted on all disciplinary matters affecting a person serving under
the Government of India or the Government of a State in a civil capacity,
including memorials or petitions relating to such matters. It was held that the
provisions of this clause were not mandatory and did not confer any right on a
public servant, so that the absence of consultation or any irregularity in
consultation did not afford him a cause of action in a court of law. Mr.
Seervai's argument is that the words used in Art. 211 should be similarly construed
and the prohibition on which Mr. Setalvad relies should be deemed to be merely
directory and not mandatory.
We are not impressed by Mr. Seervai's
arguments. The fact that Art. 21 1 appears under a topic dealing with
"Procedure Generally", cannot mean that the prohibition prescribed by
it is not mandatory. As we have already indicated, in trying to appreciate the
full significance of this prohibition, we must read Articles 211 (1) [1958]
S.C.R. 533.
458 and 121 together. It is true that Art.
194(2) in terms provides for immunity of action in any court in respect of a
speech made by a member or a vote given by him in the legislative Assembly. But
this provision itself emphatically brings out the fact that the Constitution
was anxious to protect full freedom of speech and expression inside the
legislative chamber, and so, it took the precaution of making a specific
provision to safeguard this freedom of speech and expression by saying that
even the breach of the constitutional prohibition prescribed by Art.
211 should not give rise to any action.
Undoubtedly, the Speaker would not permit a member to contravene Art. 21 1;
but if, inadvertently, or otherwise, a speech
is made within the legislative chamber which contravences Art. 21 1, the
Constitution-makers have given protection to such speech from action in any
court. The House itself may and would, no doubt, take action against him.
It is also true that if a question arises as
to whether a speech contravenes Art. 21 1 or not, it would be for the Speaker
to give his ruling on the point. In dealing with such a question, the Speaker
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 thought 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.
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 protection 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(3). In our opinion, the omission to make any such provision when
contrasted with the actual provision made by Art. 194(2) is riot without
significance. In other words, this contrast leads to the inference that the
Constitution makers took the view that the utmost that can be done to assure
absolute freedom of speech and expression inside the legislative 459 chamber,
would be to make a provision in Art. 194(2); and that is about all. The conduct
of a Judge in relation to the discharge of his duties cannot be the
subject-matter of action in exercise of the powers and privileges of the House.
Therefore, the position is that the conduct of a Judge in relation to the
discharge of his duties cannot legitimately be discussed inside the, House,
though if it is, no remedy lies in a court of law. But such conduct cannot be
made the subject-matter of any proceedings under the latter part of Art.
194(3). If this were not the true position, Art. 211 would amount to a
meaningless declaration and that clearly could not have been the intention of
the Constitution.
Then, as regards the construction of Art. 21
1 itself, Mr. Seervai is no doubt in a position to rely upon the decision of
this Court in State of U.P. v. Manbodhan Lal Srivastava(1). But it would be
noticed that in coming to the conclusion that the provision contained in Art.
320(3)(c) was not mandatory, this Court has
referred to certain other facts which determined the said construction.
Even so, this Court has accepted the
principle laid down by the Privy Council in Montreal Street Railway Company v.
Normandin(1) wherein the Privy Council
observed that "the question whether provisions in a statute are directory
or imperative has very frequently arisen in this country, but it has been said
that no general rule can be laid down, and that in every case the object of the
statute must be looked at." question as to whether a statute is mandatory
or directory depends upon the intent of the legislature and not upon the
language in which the intent is clothed. The meaning and intention of the
legislature must govern, and these are to be ascertained, not only from the
phraseology of the provision, but also by consider in its nature, its design,
and the consequences which would follow from construing it the one way or the other."(1)
These principles would clearly negative the construction for which Mr. Seervai
contends. It is hardly necessary to refer to other provisions of the
Constitution which are intended to safeguard the independence 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. 21 1 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
(1) [1958] S.C.R. 533 (2) L.R. [1917] A.C. 170.
(3) People v. De Renna (2 N.Y.S.) (2) 694,166
Misc. (582) cited in Crawford, Statutory Construction p. 516.
460 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 Articles 226 and 211, judicial conduct can never become the
subjectmatter of contempt proceedings under the latter part of Art.
194(3), even if it is assumed that such
conduct can become the subject matter of contempt proceedings under the powers
and privileges possessed by the House of Commons in England.
On the other hand, Mr. Seervai disputes Mr.
Setalvad's contention as to the impact of Arts. 226 and 211 on the latter part
of Art. 194(3) and further urges that even if Mr. Setalvad be right in respect
of that contention, he would not be entitled to dispute the validity of the
power and privilege claimed by the House of Commons-which can, therefore, be
claimed by the House in the present proceedings-that no court can go behind a
general or unspeaking warrant. In order to determine the validity of these
rival contentions, it is now necessary to consider very briefly what was the
position of this particular power and privilege at the commencement of the
Constitution. In dealing with this question, we will also very broadly refer to
the wider aspect of the powers, privileges and immunities which vest in both
the Houses of Parliament in England.
While considering the question of the powers,
privileges and immunities of the English Parliament it would, we think, be
quite safe to base ourselves on the relevant statements which have been made in
May's Parliamentary Practice. This work has assumed the status of a classic on
the subject and is usually regarded as an authoritative exposition of
parliamentary practice; and so, we think it would be an exercise in futility to
attempt to deal with this question otherwise than by reference to May.
Parliamentary privilege, according to May, is the sum of the peculiar rights
enjoyed by each House collectively as a constituent part of the High Court of
Parliament, and by members of each House individually, without which they could
not discharge their functions, and which exceed those possessed by other bodies
or individuals. Thus, privilege, though part of the law of the land, is to a
certain extent an exemption from the ordinary law. The particular privileges of
the House of Commons have been defined as "the sum of the fundamental 461
rights of the House and of its individual Members as against the prerogatives
of the Crown; the authority of the ordinary courts of law and the special
rights of the House, of -Lords". There is a distinction between privilege
and function, though it is not always apparent. On the whole, however, it is
more convenient to reserve the term "privilege" to certain
fundamental rights of each House which are generally accepted as necessary for
the exercise of its constitutional functions. The distinctive mark of a
privilege is its ancillary character. The privileges of Parliament are rights
which are "absolutely necessary for the due execution of its powers".
They are enjoyed by individual Members, because the House cannot perform its
functions without unimpeded use of the services of its Members; and by each
House for the protection of its Members and the vindication of its own
authority and dignity(1).
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 selfgoverning 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(1) 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 functions, but as a descendant of the High Court of
Parliament and by virtue of the lex et consuetudo parliamenti(1). Historically
as originally the weaker body, the Commons had a fiercer and more prolonged
struggle for the assertion of their own privileges, not only against the Crown
and the courts, but also against the Lords. Thus the concept of privilege which
originated in the special protection against the King began to be claimed by
the Commons as customary rights, and some of these claims in the course of
repeated efforts to assert them hardened into legally recognised
"privileges".
In regard to the fierce struggle by the House
of Commons to assert its privileges in a militant way, May has made the
significant comment that these claims to privilege were established in the late
fifteenth and in the sixteenth centuries and were used by the House of Commons
against the King in the seventeenth and-arbitrarily -against the people in the
eighteenth century. Not until the nineteenth century was equilibrium reached
and the limits of privilege prescribed and accepted by Parliament, the Crown
and the Courts(3). The two Houses are thus of equal authority in the (1) May's
Parliamentary Practice pp. 42-43.
(2) 4 Moore P.C. 63.
(3) May's Parliamentary Practice, p. 44.
462 administration of a common body of
privileges. Each House, as a constituent part of Parliament, exercised its own
privileges independently of the other. They are enjoyed, however, not by any
separate right peculiar to each, but solely by virtue of the law and custom of
Parliament.
Generally speaking, all privileges properly
so-called, appertain equally to both Houses. They are declared and expounded by
each House. and breaches of privilege are adjudged and censured by each; but
essentially, it is still the law of Parliament that is thus administered. It is
significant that although either House may expound the law of Parliament, and
vindicate its own privileges, it is agreed that no new privilege can be
created. This position emerged as a result of the historic resolution passed by
the House of Lords in 1.704. This resolution declared "that neither House
of Parliament have power, by any vote or declaration, to create to themselves
new privileges, not warranted by the known laws and customs of Parliament.' This
resolution was communicated by the House of Lords to Commons and assented to by
them(1). Thus, there can be no doubt that by its resolutions, the House of
Commons cannot add to the list of its privileges and powers.
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"(2).
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 their conduct
in Parliament(1).
Besides these privileges, both Houses of
Parliament were possessed of the privilege of freedom from arrest or
molestation, (1) May's Parliamentary Practice, p. 47.
(2) Ibid., p. 52.
(3) Ibid., pp. 52-53.
463 and from being impleaded, which was
claimed by the Commons on ground of prescription. Although this privilege was
given royal and statutory recognition at an early date, ironically enough the
enforcement of the privilege was dependent on the Lords and King, who were not
always willing to protect the Commons. In this connection, May refers to the
case of Thorpe who was the Speaker of the House of Commons and was imprisoned
in 1452, under execution from the Court of Exchequer, at the suit of the Duke
of York. It is an eloquent testimony to the dominance of the House of Lords and
the weakness of the House of Commons which was struggling to assert its freedom
and its rights that when the House of Lords in response to the application of
the Commons adjudged that Thorpe should remain in prison, the Commons so easily
acquiesced in this decision that they, immediately proceeded to the election of
another Speaker(1).
May points out that certain privileges have
in course of time, been discontinued. Amongst them may be mentioned the freedom
from being impleaded. Similarly, by the Parliamentary Privilege Act, 1770 a
very important limitation of the freedom from arrest was affected. A somewhat
similar position arises in respect of the privilege of exemption from jury
service (2). In fact. the list of privileges claimed by the House of Commons in
early days was a long and formidable list and it showed how the House of Commons
was then inclined to claim all kinds of privileges for itself and its members.
In course of time, however, many of these privileges fell into disuse and faded
out of existence, some were controlled by legislation while the major
privileges which can be properly described as privileges essential for the
efficient functioning of the House, still continued in force.
In considering the nature of these privileges
generally, and particularly the nature of the privilege claimed by the House to
punish for contempt, it is necessary to remember the historical origin of this
doctrine of privileges. In this connection, May has emphasised that the
original of the modern Parliament consisted in its judicial functions.
"One of the principal lines of recent research", says May, "has
revealed the importance of the judicial elements in the origins of Parliament.
Maitland, in his introduction to the Parliament Roll of 1305, was the first to
emphasise the importance of the fact that Parliament at that time was the King's
" great court" and was thereby (among other things) the highest court
of royal justice. There is now general agreement in recognising the strongly
judicial streak in the character of the earliest (1) May's Parliamentary
Practice, p. 70.
(2) Ibid. pp., 75-77.
464 Parliaments and the fact that, even under
Edward 111, 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"(1). 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; and, as distinct members of the constitution, they exercise
functions and enjoy privileges peculiar to each.
The House of Lords, Spiritual and Temporal,
sit together, and jointly constitute the House of Lords(2). 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 for deliberation, particular instances in which they met in different
places will not determine whether their separation, at those times, was
temporary or permanent. When the Commons deliberated apart, they sat in the
chapter house or the refectory of the abbot of Westminster; and they continued
their sittings in that place after their final separation(3). The House of
Lords always was and continues to be today a Court of Judicature. According to
May, the most distinguishing characteristic of the Lords is their judicature,
of which they exercise several kinds. They have the power to sit as a court
during prorogation and dissolution; a Court of Appeal is constituted by the
House of Lords and final appellate jurisdiction vests in them(4).
May has also referred to the power claimed by
the Parliament in respect of acts of attainder and impeachments, and he has
described how this privilege was exercised by the House of Lords and the House
of Commons(1). "In impeachments", says May, "the Commons are but
accusers and advocates; while the Lords alone are judges of the crime. On the
other hand, in passing bills of attainder, the Commons commit themselves by no
accusation, nor are their powers directed against the offender; but they are
judges of equal jurisdiction, and with the same responsibility, as the Lords;
and the accused can only be condemned by the united judgment of the Crown, the
Lords, and the Commons(6)." This aspect of the privilege is one of the
typical features of the historical development of the constitutional law in
England. It would thus be seen that a part of the jurisdiction claimed by the
House of Lords as well as the House of Commons can be distinctly traced to the
historical origin of the modem Parliament which, as we have just indicated,
consisted in the judicial functions of Parliament.
(1) May's Parliamentary Practice, pp. 3-4.(2)
Ibid., pp.8-9.
(3) lbid., p.12. (4) Ibid., pp. 38-39.
(5) Ibid., p. 40. (6) Ibid., p. 41.
465 The differences in punishments inflicted
by Lords and Commons is also of some significance in this context.
"While both Houses agree in regarding
the same offences as breaches of privilege", says May, "in several
important particulars there is a difference in their modes of punishment. The
Lords have claimed to be a court of record and, as such, not only to imprison,
but to impose fines.
They also imprison for a fixed time, and
order security to be given for good conduct; and their customary form of
commitment is by attachment. The Commons, on the other hand, commit for no
specified period, and during the last two centuries have not imposed fines.
There can be no question that the House of Lords, in its judicial capacity, is
a court of record; but, according to Lord Kenyon, 'when exercising a
legislative capacity, it is not a court of record'. Whether the House of
Commons be, in law, a court of record, it would be difficult to determine; for
this claiming, once firmly maintained, has latterly been virtually abandoned,
although never distinctly renounced"(1). 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.
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, so it hath privilege above
all other courts; and as it hath privilege and jurisdiction too, so hath it
also Coercion and Compulsion; otherwise the jurisdiction is nothing in a court,
if it hath no Coercion" (2). The comment made by May on this power of
commitment is very instructive. The origin of this power which is judicial in
its nature is to be found naturally in the medieval conception of Parliament as
primarily a court of justice-the "High Court of Parliament".
As a court functioning judicially, the House
of Lords undoubtedly possessed the power of commitment by at least as good a
title as any court of Westminster Hall.
But the Commons, "new-comers to
Parliament" within the time of judicial memory, could not claim the power
on grounds (1) May's Parliamentary Practice, p. 90. (2) Ibid., p.
90.
466 of immemorial antiquity. As late as 1399
they had record& their protest that they were not sharers in the judgments
of Parliament, but only petitioners. The possession of the right by the Commons
was challenged on this ground, and was defended by arguments which confounded
legislative with judicial jurisdiction. It was probably owing to the medieval
inability to conceive of a constitutional authority otherwise than as in some
sense a court of justice that the Commons succeeded in asserting their right to
commit offenders on the same terms as the Lords(1). That is the genesis of the
privilege claimed by the House of Commons in the matter of commitment.
As the history of England shows, the House of
Commons had to engage in a fierce struggle in order to arrest recognition for
this right from the King, the House of Lords, and in many cases the people
themselves. This power was distinctly admitted by the Lords at the conference between
the two Houses, in the case of Ashby v. White(2), in 1704, and it has been
repeatedly recognized by courts of law. In fact this power is also virtually
admitted by the statute, I James 1, c. 13, s. 3, which provides that nothing
therein shall "extend to the diminishing of any punishment to, be
hereafter, by censure in Parliament, inflicted upon any person(3)." Now we
will refer to the statement of the law in May's book on the vexed question
about the jurisdiction of courts of law in matters of privilege. May says, it
would require a separate treatise to deal adequately with a subject which
raises incidentally such important questions of constitutional law. According
to him, in cases affecting parliamentary privilege the tracing of a boundary
between the competence of the courts and the exclusive jurisdiction of either
House is a difficult question of constitutional law which has provided many
puzzling cases, particularly from the seventeenth to the nineteenth centuries.
It has been common ground between the Houses and the courts that privilege
depends on the "known laws and customs of Parliament", and not on the
ipse dixit of either House. The question in dispute was whether the law of
Parliament was a "particular" law 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 (1) May's Parliamentary Practice,
p. 91.
(2) L.J. (1701-05),714.
(3) May's Parliamentary Practice, p. 92.
467 by the House which it concerned, even
when the rights of third parties were involved, or whether it might in certain
cases be decided in the courts, and, if so, in what sort of cases (1). The
points of view adopted by the Parliament and the courts appeared to be
irreconcilable. The courts claimed the right to decide or themselves when it
became necessary to do so in proceedings brought before them, questions in
relation to the existence or extent of these privileges, whereas both the
Houses claimed to be exclusive judges of their own privileges. Ultimately, the
two points of view were reconciled in practice and a solution acceptable to
both he parties was gradually evolved. This solution which is marked but by the
courts is to insist on their right in principle to decide ill questions of
privilege arising in litigation before them, with certain large exceptions in
favour of parliamentary jurisdiction.
Two of these are the exclusive jurisdiction
of each House over its own internal proceedings, and the right of either House
to commit and punish for contempt. May adds that while it cannot be claimed
that either House has formally acquiesced in this assumption of jurisdiction by
the courts, the absence of any conflict for over a century may indicate a
certain measure of tacit acceptance(2). In other words, 'the question about the
existence and extent of privilege is generally treated as justiciable in courts
where it becomes relevant for adjudication of any dispute brought before the
courts.
In regard to punishment for contempt, a
similar process of give and take by convention has been in operation and
gradually a large area of agreement has, in practice, been evolved.
Theoretically, the House of Commons claims that its admitted right to
adjudicate on breaches of privilege implies in theory the right to determine
the existence and extent of the privileges themselves. It has never expressly
abandoned this claim. On the other hand, the courts regard the privileges of
Parliament as part of the law of the land, of which they are bound to take
judicial notice They consider it their duty to decide any question of privilege
arising directly or indirectly in a case which falls within their jurisdiction,
and to decide it according to their own interpretation of the law(3).
Naturally, as a result of this dualism the decisions of the courts are not
accepted as binding by the House In matters of privilege, nor the decision of
the House by the courts; and as May points out, on the theoretical plane, the
old dualism remains unresolved. In practice, however, "there is (1) May's
Parliamentary Practice, p. 150.
(2) Ibid., p. 152.
(3) Ibid., p. 172.
468 much more agreement on the nature and
principles of privilege than the deadlock on the question of jurisdiction would
lead one to expect" and May describes these general conclusions in the
following words :
(1) It seems to be recognized that, for the purpose
of adjudicating on questions of privilege, neither House is by itself entitled
to claim the supremacy over the ordinary courts of justice which was enjoyed by
the undivided High Court of Parliament. The supremacy of Parliament, consisting
of the King and the two Houses, is a legislative supremacy which has nothing to
do with the privilege jurisdiction of either House acting singly.
(2) It is admitted by both Houses that, since
neither House can by itself add to the law, neither House can by its own declaration
create a new privilege. This implies that privilege is objective and its extent
ascertainable, and reinforces the doctrine that it is known by the courts. On
the other hand, the courts admit (3) That the control of each House over its
internal proceedings is 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(.).
It is a tribute to the remarkable English
genius for finding pragmatic ad hoc solutions to problems which appear to be
irreconcilable by adopting the conventional method of give and take. The result
of this process has been, in the words of May, that the House of Commons has
not for a hundred years refused to submit its privileges to the decision of the
courts, and so, it may be said to have given practical recognition to the
jurisdiction of the courts over the existence and extent of its privileges. On
the other hand, the courts have always, at any rate in the last resort, refused
to interfere in the application by the House of any of its recognized
privileges(1). That broadly stated, is, the position of powers and privileges
claimed by the House of Commons.
(1) May's Parliamentary Practice, p. 173.
(2) Ibid., pp. 173-74.
469 What now remains to consider is the
position in regard to the special privilege with which we are concerned, viz.,
the privilege to determine whether its contempt has been committed and to
punish for such contempt, and to claim that a general order or warrant
sentencing a person for its contempt is not examinable in a court of law. Is
-this last right claimed by Mr. Seervai on behalf of the House a part of the
privilege vesting in the House of Commons, or is it the result of an agreement
evolved between the courts and the House by convention, or by the doctrine of
comity, or as a matter of legal presumption ? It is to this question that we
must now turn.
Even while dealing with this narrow question,
it is necessary, we think, to refer broadly to the somewhat tortuous course
through which the law on this question has been gradually evolved by judicial
decisions in England.
Just as in dealing with the question of privileges,
on principle we have mainly based ourselves on the statements of May, so in
dealing with the evolution of the law on this question, we will mainly rely on
the decisions themselves.
Both Mr. Seervai and Mr. Setalvad have
referred us to a large number of English decisions while urging their
respective contentions before us and in fairness, we think we ought to mention
some of the important representative decisions to indicate how this doctrine of
privilege and its accompaniments has been gradual`y developed in England.
For our purpose, the story can be said to
begin in the year 1677 when the Court of King's Bench had occasion to deal with
a part of this problem in The Earl of Shaftesbury's case(1); it develops from
time to time when some aspect or the other of this problem of parliamentary
privileges came before the courts at Westminster until we reach 1884 when the
case of Bradlaugh v. Gossett(1) was decided.
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
matter 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" was (1) 86 E.R. 792. (2) L.R. 12
Q.B.D. 721.
470 too uncertain for the Court to sustain.
It was also argued or his behalf that in respect of the jurisdiction exercised
by the Lords the boundaries of the said jurisdiction were limited by common law
and its exercise was examinable in the courts. This plea was unanimously
rejected by the Court which held that the Court could not question the judgment
of the House of Lords as a superior court. Rainford C.J. held "that this
Court hath no jurisdiction of the cause, and therefore, the form of the return:
is not considerable".
According to the learned Chief Justice, the
impugned commitment was in execution of the judgment given by the Lords for the
contempt; and therefore, if the Earl be bailed, he would be delivered out of
execution; because for a contempt in facie curiae, there is no other judgment
for execution. This case, therefore, accepted the principle that the House of
Lords had jurisdiction to issue a warrant for contempt and that since the
commitment of the person thus committed was in execution of the judgment given
by the House of Lords, the general warrant issued in that behalf was not
examinable by the King's Bench Division.
Five years thereafter, Jay moved the King's
Bench Division for release from arrest and brought an action against Topham,
the serjeant at Arms, for arresting and detaining him. Topham pleaded to the
jurisdiction of the court, but the court rejected his plea and judgment was
given in favour of Jay. Seven years thereafter, the House of Commons declared
that the said judgment was "illegal, a violation of the privileges of
Parliament, and pernicious to the rights of Parliament". Acting on this
view the two Judges were called at the Bar of the House and asked to explain
their conduct. Appearing before the Bar, Sir Francis Pemberton mentioned to the
House that he had been out of the Court for more than six years and did not
exactly remember what had happened in the case. He expressed surprise that he
was called to the Bar without giving him enough notice as to what was the
charge against him. He also urged that if the defendant should plead he did
arrest him by the command of this House, and should plead that to the
jurisdiction of the Court of King's Bench, he would satisfy the House that such
a plea ought to be overruled. That is why he asked for time to look into the
records of the court to make his further pleas. Eventually, the two Judges were
ordered to be imprisoned(1). This incident has been severely criticised by all
prominent writers on constitutional law in England and it would be fairly
accurate to state (1) 12 State Tr. 822.
471 that it has been regarded as an
unfortunate and regrettable episode in the history of the House of Commons. It
is somewhat ironical that what happened as long ago as 1689 is attempted to be
done by the House in the present proceedings 14 years after this country has
been used to a democratic way of life under a written Constitution 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(1), 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 AttorneyGeneral 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
be 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 the judgment and attainder in his case had been recently reversed by
Parliament.
Similarly, in Stockdale v. Hansard(2),
referring to this incident, Lord Denman C.J. declared : "Our respect and
gratitude to the Convention Parliament ought not to blind us to the fact that
this sentence of imprisonment was as unjust and tyrannical as any of those acts
of arbitrary power for which they deprived King James of his Crown".
The next case to which reference may be made
is Ashby v. White("). In that case, the plaintiff was a burgess of
Aylesbuy, and as such entitled to vote for two Members of Parliament. On the
day of the election he requested the defendants, who were the Returning
Officers of the borough, to receive his vote. This the defendants refused to
do, and the plaintiff was not allowed to vote. That led to an action against
the Returning Officers for fraudulently and maliciously refusing his vote, and
it ended in an award for damages by the jury. In an action before the Queen's
Bench in arrest of judgment, it was urged that (1) 104 E.R. 501, 541. (3)
(1703-04) 92 E.R. 126.
(2) 112 E.R. 11 12, 1163.
472 the claim made by the plaintiff was not
maintainable. This action succeeded according to the majority decision Holt
C.J., dissenting. Justice Gould held that he was of opinion that the action
brought against the defendants was not maintainable, and in support of his
conclusion he gave four reasons; first, because the defendants are judges of
the, and act herein as judges; secondly, because it is a Parliamentary matter,
with which we have nothing to do;
thirdly, the plaintiff's privilege of voting
is not a matter of property or profit, so that the hindrance of it is merely
damnum sine injuria; and fourthly, it relates to the publick, and is a popular
offence(1).
Holt C.J., however, dissented from the
majority opinion and expressed his views in somewhat strong language. Referring
to the opinion expressed by his colleagues that the Court cannot judge of the
matter because it was a Parliamentary thing, he exclaimed : "O by all
means be very tender of that. Besides, it is intricate, and there may be
contrariety of opinions. But this matter can never come in question in
Parliament; for it is agreed that the persons for whom the plaintiff voted were
elected; so that the action is brought for being deprived of his vote."(1)
He conceded that the court ought not to encroach or enlarge its jurisdiction;
but he thought that the court must determine on a charter granted by the King,
or on a matter of custom or prescription, when it comes before the court
without encroaching on the Parliament. His conclusion was that if it be a
matter with the jurisdiction of the Court, "we are bound by our oaths to
judge of it"(3 ) . This decision, however, has nothing to do with the
question of contempt.
The next case which deals with the question
of contempt of the House of Commons, is R. v. Paty(4). In that case, Paty and
four others were committed to Newgate by warrant issued by the Speaker of the
House. The warrant was a 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 warrant was not reversible for the
alleged infirmities and 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 (1) 92 E. R. 126, 129.
(3) Ibid., 138.
(2) Ibid., 137.
(4) (1704) 92 E.R. 232.
473 Earl of Shaftesbury's case(1) and
observed all commitments for contempts, even those by this Court, should come
to be scanned, they would not hold water. Our warrants here in such cases are
short, as for a contempt, or for a contempt in such a cause. So in Chancery the
commitments for contempts are for a contempt in not fully answering, etc., and
would not this commitment be sufficient ?" He held that "the House of
Commons is a great Court, and all things done by them are to be intended to
have been rite acta, and the matter need not be so specially recited in their
warrants;
by the same reason as we commit people by a
rule of Court of two lines, and such commitments are held good, because it is
to be intended, that we understand what we do."(1) It would thus be seen
that the majority decision in that case proceeded on the basis that the House
of Commons was a great Court and like the superior courts at Westminster, it
was entitled to issue a short general warrant for committing persons for its
contempt. If such a general warrant was issued and it was challenged before the
courts at Westminster, it should be treated with the same respect as is
accorded to similar warrants issued by the superior courts.
Holt C.J., however, was not persuaded to take
the view that the impugned imprisonment was such "as the freeman of
England ought to be bound by"; and he added, "for that this, which
was only doing a legal act, could not be made illegal by the vote of the House
of Commons; for that neither House of Parliament, nor both Houses jointly,
could dispose of the liberty or property of the subject; for to this purpose
the Queen must join : and that it was in the necessity of their several
concurrences to such acts, that the great security of the liberty of the
subject consisted."' (p. 236). This case, therefore, seems to recognise
that it would be inappropriate for the courts at Westminster to examine the
validity of a general warrant issued by the House of Commons.
That takes us to the decision in Murray's
case(3) . 1750.
Murray was committed to prison by the House
of Commons for refusal to kneel, when brought up to the bar of the House.
It was declared by the House that the refusal
of Murray to kneel was "a most dangerous contempt of privilege". When
a petition for habeas corpus was moved before the Court, it was rejected on the
ground that "the House of Commons was undoubtedly a High Court and that it
was agreed on all hands that they have power to judge of their own privileges,
and it need not appear (1) 86 E.R. 792. (3) 95 E.R. 629.
(2) 92 E.R. 232, 234.
474 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 a 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.
The next relevant case in point of time is
Brass Crosby(1).
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 order was challenged by
Brass Crosby. The challenge, however, failed on the ground that when the House
of Commons adjudges anything to be a contempt or a breach of privilege, their
adjudication is a conviction, and their commitment in consequence is in
execution. As Lord C.J. de Grey observed, "no court can discharge or bail
a person that is in execution by the judgment of any other court," and so,
he came to the conclusion that "the House of Commons having authority to
commit, and that commitment being an execution, the question is what can this
Court do ? He gave the answer with the remark that "it can do nothing when
a person is in execution, by the judgment of a court having a competent
jurisdiction; in such case, this Court is not a court of appeal."(2)
Concurring with this view, Blackstone J.
observed that the House of Commons is a
Supreme Court and he was impressed by the argument that "it would occasion
the utmost confusion, if every Court of this Hall should have power to examine
the commitments of the other Courts of the Hall, for contempts; so that the
judgment and commitment of each respective Court, as to contempts, must be
final, and without control."(1) It would thus be seen that this decision
proceeded on the same ground which had by then been recognised that the House
of Commons was a superior ,court and as such had jurisdiction to punish persons
adjudged (1) 95 E.R. 1005. (3) Ibld., 1014.
(2) Ibid., 1011.
475 by it to be guilty of contempt. A general
warrant issued by the House in respect of such a contempt was treated as of the
same status as a similar warrant issued by other superior courts at Westminster
Hall.
Before parting with this case, we may
incidentally advert to the comment made by Lord Denman C.J. on this decision.
Said Lord Denman : "We know now, as a matter of history, that the House of
Commons was at that time engaged, in unison with the Crown, in assailing the
just rights of the people. Yet that learned Judge [Blackstone J.] proclaimed
his unqualified resolution to uphold the House of Commons, even though it
should have abused its power(1)." The next important decision on this
topic is Sir Francis Burdett's case(1). This case arose out of an action of
trespass which Sir Francis Burdett commenced against the Speaker of the House
of Commons for breaking and entering his house, and imprisoning him in the
Tower. The plea raised in defence was that the conduct of the defendant was
justified by an order of the House for Burdett's committal after the House had
adjudicated that he had been guilty of a contempt of the House by publishing a
libellous and scandalous paper reflecting on the just rights and privileges of
the House. The case was elaborately argued and as May points out : "This
case provides one of the principal authorities for the Commons' power (as Lord
Shaftesbury's case does for the Lords') to commit for contempt(,')." 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 statute, 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 contempt of their
privileges ? The House undoubtedly had that power.
Proceeding to deal with the matter on that
basis, Lord Ellenborough held that the House was competent to decide both as to
the fact and the effect of the publication which was held by it to be
libellous, and he added that by analogy to the judgment of a Court of law, (and
the judgments of either House of Parliament cannot with propriety (1) Stockdale
v. Hansard, 112 E.R. 1112,1158.
(2) 104 E.R. 501.
(3) May's Parliamentary Practice, p. 159.
476 be put upon a footing less authoritative
than those of the ordinary Courts of Law), the House must be considered as
having decided both, as far as respects any question thereupon which may arise
in other Courts.
The next question which Lord Ellenborough
considered was if the warrant itself disclosed a sufficient ground for commitment,
and an order to the officers of the House to execute it, then the justification
for the persons acting under it is made out, " unless any justifiable
means appear to have been afterwards used to carry the warrant into
execution." It appears that in that case it was urged before the Court
that if the warrant issued appeared to be on the face of it unjustified,
illegal or extravagant, the Court would be entitled to entertain the petition
for a writ of habeas corpus and grant relief to the petitioner. ,Lord
Ellenborough dealt with this argument and expressed the opinion that if a
commitment appeared to be for a contempt of the House of Commons generally, he
would neither in the case of that Court, nor of any other of the Superior
Courts, inquire further; but if it did not profess to commit for a contempt,
but for some matter appearing on the return, which could by no reasonable
intendment be considered as a contempt of the Court committing, but a ground of
commitment palpably and evidently arbitrary, unjust, and contrary to every
principle of positive law, or national justice, in such a case the Court must
look at it and act upon it as justice may require from whatever Court it may
profess to have proceeded (pp. 558-60). It is thus clear that even while
recognising that it would be inappropriate or improper to examine a general
warrant issued by the House of Commons, Lord Ellenborough made it clear that
this convention would be subject to the exception that wherever it appeared
from the return or otherwise that the commitment was palpably unjust, the court
would not be powerless to give relief to the party.
This case went in appeal before the Court of
Exchequer and the decision under appeal was confirmed. It appears that before
the appellate decision was pronounced, Lord Eldon proposed to their Lordships that
the counsel for the defendants should not be heard until they received the
advice of the Judges on the question which he formulated.
This question was : "Whether, if the
Court of Common Pleas, having adjudged an act to be a contempt of Court, had
committed for the contempt under a warrant, stating such adjudication generally
without the particular circumstances, and the matter were brought before the
Court of King's 477 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.(-') This opinion was accepted and Burdett's
appeal was dismissed without calling on the respondent. In this case, Lord
Erskine observed that "the House of Commons, whether a Court or not, must
like every other tribunal, have the power to protect itself from obstruction
and insult, and to maintain its dignity and character. If the dignity of the
law is not sustained, its sun is set, never to be lighted up again. So much I
thought it necessary to say, feeling strongly for the dignity of the law; and
have only to add that I fully concur in the opinion delivered by the
Judges." This case seems to establish the position that a warrant issued
by the House of Commons was treated as a warrant issued by a superior Court and
as such, the courts in Westminster Hall could not go behind it.
In 1836-37 began a series of cases in which
John Joseph Stockdale was concerned. This series of cases ultimately led to the
arrest and imprisonment of the Sheriffs of Middlesex. It appears that in one of
the reports published by the inspectors of prisons under the order of the House
of Commons Stockdale was described in a libellous manner, and so, he brought an
action against Messrs. Hansard in 1836.
In defence, Hansard pleaded privilege and
urged that the reports in question had been published under the orders of the
House. The Court held that the order of the House supplied no defence to the
action. Even so, the verdict of the jury went against Stockdale on a plea of
justification on the merits, the jury having apparently held that the alleged
libellous description of Stockdale was accurate. At the time when this case was
tried, Lord Chief Justice Denman made certain observations which were adverse
to the privileges of the House claimed by Hansard. He observed "that the
fact of the House of Commons having directed Messrs. Hansard to publish all
their parliamentary reports is no justification for them, or for any
book-seller who publishes a parliamentary report containing a libel against any
man(2)." Incidentally, it may be added that as a (1) 3 E.R. 1289,1301.
(2) May's Parliamentary Practice, p. 159.
478 result of this controversy, the
Parliament ultimately passed the Parliamentary Papers Act, 1840, which
overruled this view.
Not deterred by the adverse verdict of the
jury on the merits, Stockdale began another action. Before this action was
commenced, the House of Commons had passed a resolution in 1837 reaffirming its
privileges, and expressing its deliberate view that for any court to assume to
decide upon matters of privilege inconsistent with the determination of either
House of Parliament was contrary to the law of Parliament. Nevertheless, in
this second action brought by Stockdale, the House decided to put in a defence
of privilege. This defence was rejected and a decree was passed for payment of
damages and costs. Even so, the House of Commons did not act upon its
resolutions and refrained from punishing 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.
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
pound 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 ultimately the money was paid by
them to Stockdale under an attachment. At this stage, the House of Commons
entered the arena and committed Stockdale to the custody of the Serjeant. It
called upon the Sheriffs to refund the money and on their refusal, they were
also committed for contempt. That led to proceedings taken by the Sheriffs for
their release on a writ of habeas corpus. These proceedings, however, failed
and that is the effect of the decision in the Case of the Sheriff of
Middlesex(1).
Naturally, Mr. Seervai has laid considerable
emphasis on this decision. He has pointedly drawn our attention to the fact
that the Court found itself powerless to protect the Sheriffs of Middlesex
against their imprisonment, though the conduct which gave rise to contempt of
the House was, in terms, the result of an order passed by the Court. Lord
Denman C.J., who had himself elaborately discussed the question and disputed
the validity of the claim made by the House of Commons in regard to its privi(1)
113 E.R. 419.
479 leges in the case of Stockdale v.
Hansard(1), was a party to this decision. He began his judgment by declaring
that his earlier judgment delivered in the case of Stockdale v.
Hansard(1) was correct in all respects. Even
so, the plea raised by the Sheriffs had to be answered against them, because
their commitment was sustained by a legal warrant.
Lord Denman then examined the three grounds
on which the validity of the warrant was impeached and he found that there was
no substance in those pleas. The learned Chief Justice considered the previous
decisions bearing on the point and observed that the test prescribed by Lord
Eldon in the case of Burdett v. Abbot (2) was relevant; and this test, as we
have already seen, proceeds on the assumption that like the general warrants
for commitment issued by the superior courts, the general warrants issued by
the House of Commons on the ground of contempt should not be examined in
proceedings for habeas corpus. Littledale J. concurring with, Lord Denman C.J.
said : "if the warant declares the grounds of adjudication, this Court, in
many cases, will examine into their validity; but, if it does not, we cannot go
into such an inquiry. Here we must suppose that the House adjudicated with
sufficient reason; and they were the proper judges". Justice Williams, who
also concurred with Lord Denman, thought it necessary to add' that "if the
return, in a case like this, shewed a frivolous cause of commitment, as for
wearing a particular dress, I should agree in the opinion expressed by Lord
Ellenborough in Burdett v. Abbot(1), 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 validity 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 of 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, this decision also does not assist Mr. Seervai in contending that
it is a part of the privilege of the" (1) 11 2 E.R. 11 12. (2) 104 E.R.
501.
480 House to insist that a general warrant
issued by it must be treated as conclusive and is not examinable in courts of
law.
The next case is Howard v. Sir William
Gosset(1). In that case, by a majority decision a warrant issued by the Speaker
of the House against Howard was held to be invalid as a result of certain
infirmities discovered in the warrant.
Williams J. alone dissented. The warrant in
this case was a general warrant and Williams J. held that the technical
objections raised against the validity of the warrant could not be entertained,
because a general warrant -should be treated as conclusive of the fact that the
party against whom the warrant had been issued had been properly adjudged to be
guilty of contempt. Since the judgment was pronounced in favour of the
plaintiff Howard, the matter was taken in appeal, and the majority decision was
reversed by the Court of Exchequer. Parke B. considered the several arguments
urged against the validity of the warrant and rejected them.
The general ground for the decision of the
Court of Exchequer was expressed in these words : "We are clearly of
opinion that at least as much respect is to be shewn, and as much authority to
be attributed, to these mandates of the House as to those of the highest Courts
in the country; and, if the officers of the ordinary Courts are bound to obey
the process delivered to them, and are therefore protected by it, the officer
of the House of Commons is as much bound and equally protected. The House of
Commons is a part of the High Court of Parliament, which is without question not
merely a Superior but the Supreme Court in this country, and higher than the
ordinary courts of law(1)".
Thus, the result of this decision is that the
House of Commons being part of the High Court of Parliament is a superior Court
and the general warrants issued by it cannot be subjected to the close
scrutiny, just as similar warrants issued by other superior courts of record
are held to be exempt from such scrutiny. It would be noticed that the Court of
Exchequer has observed in this case that the House of Commons as a part of the
High Court of Parliament, is a Supreme Court in this country and is higher than
the ordinary courts of law; and this recalls the original judicial character of
the House of Parliament in its early career and emphasises 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.
The last case in this series to which we
ought to refer is the decision of the Queen's Bench Division in Bradlaugh v.
(1) 116 E.R. 139.
(2) 1bid., at 174.
481 Gossett(1). 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 Serjeantat-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 yet
it was held that the matter in dispute related to the internal management of
the procedure of the House of Commons, and so, the Court of Queen's Bench had
no power to interfere. It was pressed before the Court that the resolution was
plainly opposed to the relevant provision of the law. In repelling the validity
of this argument, Stephen J., observed that in relation to the rights and
resolutions concerning its internal management, the House stood precisely in
the same relation "as we the judges of this Court stand in to the laws
which regulate the rights of which we are the guardians, and to the judgments
which apply them to particular cases; that is to say, they are bound by the
most solemn obligations which can bind men to any course of conduct whatever,
to guide their conduct by the law as they understand it". The learned
Judge then proceeded to add "If they misunderstand it, or (I apologize for
the supposition) wilfully disregard it, they resemble mistaken or unjust
judges; but in either case, there is in my judgment no appeal from their
decision. The law of the land gives no such appeal; no precedent has been or
can be produced in which any Court has ever interfered with the internal
affairs of either House of Parliament, though the cases are no doubt numerous
in which the Courts have declared the limits of their powers outside of their
respective Houses". That, said the learned Judge, was enough to justify the
conclusion which he had arrived at(1).
Mr. Seervai's argument was that though the
resolution appeared to constitute an infringement of the Parliamentary Oaths
Act, the Court refused to give any relief to Bradlaugh, and he suggested that a
similar approach should be adopted in dealing with the present dispute before
us. The obvious answer to this contention is that we are not dealing with any
matter relating to the internal management of the House in the L. R. 12 Q.B. D.
271.
(2) lbid., 286.
482 present proceedings. We are dealing with
the power of the House to punish citizens for contempt alleged to have been
committed by them outside the fourwalls of the House, and that essentially
raises different considerations.
Having examined the relevant decisions bearing
on the point, it would, we think, not be inaccurate to observe that the right
claimed by the House of Commons not to have its general warrants examined in
habeas corpus proceedings has been based more on the consideration that the
House of Commons is in the position of a superior court of record and has the
right like other superior courts of record to issue a general warrant for
commitment of persons found guilty of contempt. Like the general warrant issued
by superior courts of record in respect of such contempt, the general warrants
issued by the House of Commons in similar situations should be similarly
treated. It is on that ground that the general warrants issued by the House of
Commons were treated beyond the scrutiny of the courts in habeas corpus
proceedings. In this connection, we ought to add that even while recognising
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.
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 support his contention, and so, it is now necessary
to turn-to these decisions. The first decision in this series is in the case of
the Speaker of the Legislative Assembly of Victoria v. Hugh Glass(1). In that
case by the Constitution Act for the Colony of Victoria power had been given to
the Legislative Assembly of Victoria to commit by a general warrant for
contempt and breach of privilege of that Assembly. In exercise of that power,
Glass was declared by the House to have committed contempt and under the
Speaker's warrant, which was in general terms, he was committed to jail. A
habeas corpus petition was then moved on his behalf and this petition was
allowed by the Chief Justice of the Supreme Court in the Colony, on the ground
that the Constitution Statute and the Colonial Act did not confer upon the
Legislative Assembly the same powers, privileges and immunities as were
possessed by 1) 1869-71] 3 L.R.P.C. 560.
483 Assembly, the decision of the Supreme
Court in the Colony was reversed and it was held that the relevant Statute and
the Act gave to the Legislative Assembly the same powers and privileges as the
House of Commons had at the time of the passing of the said Acts.
Having held that the Legislative Assembly had
the same powers as the House of Commons, the Privy Council proceeded to
consider the nature and extent of these powers. Lord Cairns who delivered the
judgment of the Privy Council observed that "[b]eyond 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 .... been wellestablished 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.' Then he considered the merits of the argument that the relevant
Constitution Act did not confer on the Legislative Assembly of Victoria the
incidental power of issuing a general warrant, and rejected it. "[Their
Lordships] consider", said Lord Cairns, "that there is an essential
difference between a privilege of committing for contempt such as would be
enjoyed by an inferior Court, namely, privilege of first determining for itself
what is contempt, then of stating the character of the contempt upon a Warrant,
and then of having that Warrant subjected to review by some superior Tribunal,
and running the chance whether that superior Tribunal will agree or disagree
with the determination of the inferior Court, and the privilege of a body which
determines for itself, without review, what is contempt, and acting upon the
determination, commits for that contempt, without specifying upon the Warrant
the character or the nature of the contempt." According to Lord Cairns,
the latter of the two privileges is a higher and more important one than the
former, and he added that it would be 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(1).
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 (1)
[1869-71] 3 L.R.P.C. 572, 573.
484 a part of the power and privilege of the
House. Even so, it is significant that the distinction is drawn between the
power and privilege of an inferior Court and the power and privilege of a
superior Court; and so, the conferment of the larger power is deemed to have
been intended by the relevant provision of the Constitution Act, because the
status intended to be conferred on the Legislative Assembly of Victoria was
that of the superior Court. In other words, the Legislative Assembly was
treated as a superior Court and the power and privilege conferred on it was
deemed to include both aspects of the power. Incidentally, it may be pointed
out, with respect, that in considering the question, Lord Cairns did not
apparently think it necessary to refer to the earlier English decisions in
which the question about the extent of this power and its nature had been
elaborately considered from time to time.
The next Privy Council decision on which Mr.
Seervai relied is Fielding and Others v. Thomas(1). In that case, the question
about the extent of the power conferred on the Nova Scotia House of Assembly
fell to be considered, and it was held by the Privy Council that the said
Assembly had statutory power to adjudicate that wilful disobedience to its
order to attend in reference to a libel reflecting on its members is a breach
of privilege and contempt, and to punish that breach by imprisonment. For our
present purpose, it is not necessary to refer to the relevant provisions of the
statute on which the argument proceeded, or the facts which gave rise to the
action. It is only one observation made by Lord Halsbury which must be quoted.
Said Lord Halsbury in that case : "The
authorities summed up in Burdett v. Abbot(1), and followed in the Case of The
Sheriff of Middlesex(1), establish beyond all possibility of controversy the
right of the House of Commons of the United Kingdom to protect itself against
insult and violence by its own process without appealing to the ordinary courts
of law and without having its process interfered with by those courts." (4
) It is the last part of this observation which lends some support to Mr.
Seervai's case. All that we need say about this observation is that it purports
to be based on two earlier decisions which we have already examined, and that
it is not easily reconcilable with the reservations made by some of the Judges
who had occasion to deal with this point in regard to their jurisdiction to
examine the validity of the imprisonment of a petitioner where it appeared that
the warrant issued by the House (1) [1896] L.R.A.C. 600. (2) 104 E.R. 501.
(3) 113 E.R.419. (4) [18961 L.R.A.C. 600,
609.
485 of Commons appeared on a return made by
the House to be palpably frivolous or based on extravagant or fantastic reasons.
The last decision on which Mr. Seervai relies
is the case of The Queen v. Richards(1). 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." 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 Representatives in Australia ? It appears that in that case
Fitzpatrick and Browne were taken into custody by Edward Richards in pursuance
of warrants issued by the Speaker of the House of Representatives of the
Parliament of the Commonwealth. These warrants were general in character and
they commanded Richards to receive the said two persons into his custody. On
June 10, 1955, on the application of Fitzpatrick and Browne as prosecutors, the
Supreme Court of the Australian Capital Territory (Simpson J.) granted an order
nisi for two writs of habeas corpus directed to the said Edward Richards. On
June 15, 1955, Simpson J. acting under S. 13 of the Australian Capital
Territory Supreme Court Act directed that the case be argued before a Full
Court of the High Court of Australia. That is how the matter went before the
said High Court.
The High Court decided that S. 49 operated
independently of S. 50 and was not to be read down by implications derived from
the general structure of the Constitution and the separation of powers
thereunder. Construing S. 49 independently of S. 50, the High Court held that
the powers, privileges and immunities of the House of Commons at the
establishment of the Commonwealth were conferred on the Parliament and since
Parliament had made no declaration within the meaning of the said section, it
was necessary to consider what the powers of the House of Commons were at the
relevant time in order to determine the (1) 92 C.L.R. 157.
486 question as to whether a general warrant
could be issued by Parliament or not, and the High Court held that under S. 49
the Australian Parliament could claim the privilege of judging what is contempt
and of committing therefor. It was also held that if the Speaker's warrant is
upon its face consistent with the breach of an acknowledged privilege, it is
conclusive notwithstanding that the breach of privilege is stated in general
terms. In other words, this decision undoubtedly supports Mr. Seervai's
contention that a general warrant issued by the House in the present case is
not ,examinable by the High Court.
In appreciating the effect of this decision
it is necessary to point out that so far as Australia was concerned, the point
in issue had been already established authoritatively by the decisions of the
Privy Council in Dill v. Murphy (1) as well as in Hugh Glass(2). In fact, fact,
Dixon C.J. has expressly referred to this "aspect of the matter.
Naturally, he has relied on the observations
made by Lord Cairns in Hugh Glass and has followed the said observations in
deciding the point raised before the High Court ,of Australia. That is the
basis which was adopted by Dixon C.J. in dealing with the question. Having
adopted this approach, the learned Chief Justice thought it unnecessary to
discuss at length the situation in England, because what the situation in
England was, had been conclusively determined for the guidance of the
Australian courts by the observations made by Lord Cairns in Hugh Glass(1).
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("). To quote the words of the learned Chief
Justice : "Stated shortly, it is this : it is for the courts to judge of
the existence in either House -of Parliament of a privilege, but, given an
undoubted privilege, it is for the House to judge of the occasion and of the manner
,of its exercise. The judgment of the House is expressed by its resolution and
by the warrant of the Speaker. If the warrant specifies the ground of the
commitment the court may, it would seem, determine whether it is sufficient in
law as a ground to -amount to a breach of privilege, but if the warrant is upon
its (1)15 E.R. 784:(1864)1 Moo-P.C.(N.S.)487.
(2)[1869-71] 3L.R.P.C.560.
(3) 113 E.R. 419.
487 face consistent with a breach of an
acknowledged privilege it is conclusive and it is no objection that the breach
of privilege is stated in general terms. This statement of law appears to be in
accordance with cases by which it was finally established, namely, the Case of
the Sheriff of Middlesex"(1). Thus, even according to Chief Justice Dixon,
the existence and extent of privilege is a justiciable matter and can be
adjudicated upon by the High Court. If the warrant is a speaking warrant, the
Court can determine whether it is sufficient in law as a ground to amount to
breach of privilege, though, if the warrant is unspeaking or general, the court
cannot go behind it. In our opinion, it would not be reasonable to treat this
decision as supporting the claim made by the House that the conclusive
character of its general warrant is a part and parcel of its privilege.
The learned Chief Justice in fact did not
consider the question on the merits for himself. He felt that he was bound by
the observations made by Lord Cairns and he has merely purported to state what
in his opinion is the effect of the decision in the Case of the Sheriff of
Middlesex(1).
Besides, there is another aspect of this
matter which cannot be ignored. The learned C.J. Dixon was dealing with the
construction of s. 49 of the Australian Constitution, and as Gwyer C.J. has
observed in In re The Central Provinces and Berar Act No. XIV of 1938 (2),
"there are few subjects on which the decisions of other Courts require to
be treated with greater caution than that of federal and provincial powers, for
in the last analysis the decision must depend upon the words of the
Constitution which the Court is interpreting; and since no two Constitutions
are in identical terms, it is extremely unsafe to assume that a decision on one
of them can be applied without qualification to 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 a phrase may take
a colour from its context and bear different senses accordingly (p. 38).
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 (1) 113 E.R.
419.
1 Sup.C.I./65-6 (2) [1939] F.C.R. 18.
488 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 some provisions in the Australian
Constitution which may take in some of the rights which are safeguarded under
Art. 226 of our Constitution. Art. 32 finds no counter-part in the Australian
Constitution. Likewise, there is no provision in the Australian Constitution
corresponding to Art. 211 of ours :
and the presence of these distinctive
features contributes to make a substantial difference in the meaning and
denotation of similar words used in the two respective provisions. viz., s. 49
of the Australian Constitution and Art. 194(3) of ours. Besides, the
declaration to which s. 49 refers may not necessarily suffer to the same extent
from the limitation which would govern a law when it is made by the Indian
Legislatures under the first part of Art. 194(3).
These distinctive features of the relevant
and material provisions of our Constitution would make it necessary to bear in
mind the words of caution and warning which Gwyer C.J., uttered as early as
1938. Therefore, we think that it would not be safe or reasonable to rely too
much on the observations made by Dixon C.J. in dealing with the question of
privileges in the case of Richards(1).
Before we part with this topic, however, we
may incidentally point out that the recent observations made by Lord Parker
C.J. in In re Hunt(1) indicate that even in regard to a commitment for contempt
by the superior court of record, the court exercising its jurisdiction over a
petition filed for habeas corpus would be ,competent to consider the legality
of the said contempt notwithstanding the fact that the warrant of commitment is
general or unspeaking. Dealing with the arguments urged by Kenneth Douglas Hunt
who had been committed for contempt by WynnParry J., Parker C.J.
observed : "It may be that the true view
is, and I think the cases support it, that though this Court always has power
to inquire into the legality of the committal, it will not inquire whether the
power has been properly exercised." He, however, added that in the case
before him, he was quite satisfied that the application ought to fail on the
merits.
These observations tend to show that in
exercising habeas corpus jurisdiction, a court at Westminster has jurisdiction
to inquire into the legality of the commitment even though the commitment has
been ordered (1) 92 C.L.R.157.
(2) [1959] 1 Q.B.D. 378.
489 by another superior court of record. If
that be the true position, it cannot be assumed with certainty that Courts at
Westminster would today concede to the House of Commons the right to claim that
its general warrants are un examinable by them.
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) ? 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 support the idea that our State Legislatures were superior
Courts of Record under the Constitution Act of 1935. Section 28 of the said Act
which dealt with the privileges of the Federal Legislature is relevant on this
point. S. 28(1) corresponds to Art. 194(3) of the present Constitution. Section
28(2) provides that in other respects, the privileges of members of the
Chambers shall be such as may from time to time be defined by Act of the
Federal Legislature and, until so defined, shall be such as were immediately
before the establishment of the Federation enjoyed by members of the Indian
Legislature. it is not disputed that the members of the Indian Legislature
could not have claimed the status of being members of a superior Court of
Record prior to the Act of 1935. Section 28(3) prescribes that nothing in any
existing Indian Act, and, notwithstanding anything in the foregoing provisions
of this section, nothing in this Act, shall be construed as conferring, or
empowering the Federal Legislature to confer, on either Chamber or on both
Chambers sitting together, or on any committee or officer of the Legislature,
the status of a Court, or any punitive or disciplinary powers other than a
power to remove or exclude persons infringing the -rules or standing orders, or
otherwise behaving in a disorderly manner. Section 28 (4) is also relevant for
our purpose. It -provides that provision may be made by an Act of the Federal
Legislature for the punishment, on conviction before a Court, of persons who
refuse to give evidence r produce documents before a committee of a Chamber
when duly required by the Chairman of the committee so to do There can be no
doubt that these provisions clearly indicate that the Indian Legislature could
not have claimed the power to punish for contempt committed outside the four walls
of its Legislative Chamber. Section 71 of the same Act deals with the Pro
vincial Legislatures and contains similar provisions in its clauses (2), (3)
and (4).
After the Indian Independence Act, 1947 (1 0
& 11 Geo. VI c. 20) was passed, this position was altered by the amendments
made in the Government of India Act, 1935 by various amendment orders. The
result of the amendment orders including Third Amendment Order, 1948 was that
subsections (3) and (4) of section 28 of the said Act were deleted and
sub-section (2) was amended. The effect of this amendment was that the members
of the Federal Chambers of Legislature could until their privileges were
defined by Act of Federal Legislature claim the privileges enjoyed by the
members of the House of Commons which were in existence immediately before the
establishment of the Federation. It is, however, remarkable that the
corresponding subsections (3) and (4) of section 71 were retained. The question
as to whether 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 passed the Provincial Legislatures could
claim the status of the House of Commons and as such of a superior Court of Record.
That is the constitutional background of Art. 194(3) insofar as the Provincial
Legislatures are concerned. Considered in the light of this background, it is
difficult to accept the argument that the result of the provisions contained in
the latter part of Art. 194(3) was intended to be to confer on the State
Legislatures in India the status of a superior Court of Record.
491 In this connection, it is essential to
bear in mind the fact that the status of a superior Court of Record which was
accorded to the House of Commons, is based on historical facts to which we have
already referred. It is a fact of English history that the parliament was
discharging judicial functions in its early career. It is a fact of both
historical and constitutional history in England that the House of Lords still
continues to be the highest Court of law in the country. It is a fact of
constitutional history even today that both the Houses possess powers of
impeachment and attainder. It is obvious, we think, that these historical facts
cannot be introduced in India by any legal fiction. Appropriate legislative
provisions do occasionally introduce legal fictions, but there is a limit to
the power of law to introduce such fictions. Law can introduce fictions as to
legal rights and obligations and as to the retrospective operation of
provisions made in that behalf; but legal fiction can hardly introduce
historical facts from one country to another.
Besides, in regard to the status of the
superior Court of Record which has been accorded to the House of Commons, there
is another part of English history which it is necessary to remember. The House
of Commons had to fight for its existence against the King and the House of
Lords, and the Judicature was regarded by the House of Commons as a creature of
the King and the Judicature was obviously subordinate to the House of Lords
which was the main opponent of the House of Commons. This led to fierce
struggle between the House of Commons on the one hand, and the King and the
House of Lords on the other. There is no such historical background in India
and there can be no historical justification for the basis on which the House
of Commons struggled to deny the jurisdiction of the Court;
that is another aspect of the matter which is
relevant in considering the question as to whether the House in the present
case can claim the status of a superior Court of Record.
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 Jowitt's 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 functions and their historical and constitutional
background does not support the claim that they can be 492 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 agreement, is deemed to possess, is vested in the
House. On this view of the matter, the claim made by the House must be
rejected.
Assuming, however, that the right claimed by
the House can be treated as an integral part of the privileges of the House of
Commons, the question to consider would be whether such a right has been
conferred on the House by the latter part of Art. 194(3). On this alternative
hypothesis, it is necessary to consider whether this part of the privilege is
consistent with the material provisions of our Constitution.
We have already referred to Articles 32 and
226. Let us take Art. 32 because it emphatically brings out the significance of
the fundamental right conferred on the citizens of India to move this Court if
their fundamental rights are contravened either by the Legislature or the
Executive. Now, Art. 32 makes no exception in regard to any encroachment at
all, and it would appear illogical to contend that even if the right claimed by
the House may contravene the fundamental rights of the citizen, the aggrieved
citizen cannot successfully move this Court under Art. 32. To the absolute
constitutional right conferred on the citizens by Art. 32 no exception can be
made and no exception is intended to be made by the Constitution by reference
to any power or privilege vesting in the Legislatures of this country.
As we have already indicated we do not
propose to enter into a general discussion as to the applicability of all the
fundamental rights to the cases where legislative powers and privileges can be
exercised against any individual citizen of this country, and that we are
dealing with this matter on the footing that Art. 19 (1) (a) does not apply and
Art. 21 does. If an occasion arises, it may become necessary to consider
whether Art. 22 can be contravened by the exercise of the power or privilege
under Art. 194(3). But, for the moment, we may consider Art. 20. If Art. 21
applies, Art.
20 may conceivably apply, and the question
may arise, if a citizen complains that his fundamental right had been
contravened either under Art. 20 or Art. 21, can he or can he not move this
Court under Art. 32 ? For the purpose of making the point which we are
discussing, the applicability of Art. 21 itself would 493 be enough. If a
citizen moves this Court and complains that his fundamental right under Art. 21
had been contravened, it would plainly be the duty of this Court to examine the
merits of the said contention, and that inevitably raises the question as to
whether the personal liberty of the citizen has been taken away according to
the procedure established by law. In fact, this question was actually
considered by this Court in the case of Pandit Sharma(").
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
inconsistent with Art.
21. In this connection, it may be relevant to
recall that the rules which the House has to make for regulating its procedure
and the conduct of its business have to be subject to the provisions of the
Constitution under Art. 208(1).
Then, take the case of Art. 211 and see what
its impact would be on the claim of the House with which we are dealing. If the
claim of the House is upheld, it means that the House can issue a general
warrant against a Judge and no judicial scrutiny can be held in respect of the
validity of such a warrant. It would indeed be strange that the Judicature
should be authorised to consider the validity of the legislative acts of our
Legislatures, but should be prevented from scrutinising the validity of the
action of the legislatures trespassing on the fundamental rights conferred on
the citizens. If the theory that the general warrant should be treated as
conclusive is accepted, then, as we have already indicated, the basic concept
of judicial independence would be exposed to very grave jeopardy; and so the
impact of Art. 211 on the interpretation of Art. 194(3) in respect of this
particular power is again decisively against the contention raised by the
House.
If the power of the High Courts under Art.
226 and the authority of this Court under Art. 32 are not subject to any
exceptions, then it would be futile to contend that a citizen cannot move the
(1) [1959] Supp. 1 S.C.R. 806.
494 High Courts or this Court to invoke their
jurisdiction even in, cases where his fundamental rights have been violated.
The existence of judicial power in that
behalf must necessarily and inevitably postulate the existence of a right in
the citizen to move the Court in that behalf;
otherwise the power conferred on the High
Courts and this Court would be rendered virtually meaningless. Let it not be
forgotten that the judicial power conferred on the High Courts and this Court
is meant for the protection of the citizens' fundamental rights, and so, in the
existence of the said judicial power itself is necessarily involved the right
of the citizen. to appeal to the said power in a proper case.
In In re Parliamentary Privilege Act,
1770(1), the Privy Council was asked to consider whether the House of Commons
would be acting contrary to the Parliamentary Privilege Act, 1770, if it
treated the issue of a writ against a Member of Parliament in respect of a
speech or proceeding by him in Parliament as a breach of its privileges. The
said question had given rise to some doubt, and so, it was referred to the
Privy Council for its opinion. The opinion expressed by the Privy Council was
in favour of Parliament. Confining its answer to the said limited question, the
Privy Council took the precaution of adding that "they express no opinion
whether the proceedings referred to in the introductory paragraph were 'a
proceeding in Parliament, a question not discussed before them, nor on the
question whether the mere is-sue 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 wrongs 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 as conclusive in all courts of
law; it would also be equally inconsistent with the claim made by the House
that Keshav Singh has committed contempt by moving the High Court under Art.
226.
In this connection, it would be interesting
to refer to a resolution passed by the House of Lords in 1704. By this
resolution, it was declared that deterring electors from prosecuting actions in
the ordinary courts of law, where they are deprived of their right of voting,
and terrifying attorneys, solicitors, counsellors, and serjeants-at-law, from
soliciting, prosecuting and pleading in such cases, by voting their so doing to
be a breach of privilege of the (1) [1958] A.C. 331` 495 House of Commons, is a
manifest assuming of power to control the law, to hinder the course of justice,
and subject the property of Englishmen to the arbitrary votes of the House of Commons.
This was in answer to the resolution passed by the House of Commons in the same
year indicating that the House would treat the conduct of any person in moving
the court for appropriate reliefs in matters mentioned by the resolution of the
House as amounting to its contempt. These resolutions and counterresolutions
merely illustrate the fierce struggle which was going on between the House of
Commons and the House of Lords during those turbulent days;
but the interesting part of this dispute is
that if a question had gone to the House of Lords in regard to the competence
of the House of Commons to punish a man for invoking the jurisdiction of the
ordinary courts of law, the House of Lords would undoubtedly have rejected such
a claim, and that was the basic apprehension of the House of Commons which was
responsible for its refusal to recognise the jurisdiction of the courts which
in the last analysis were subordinate to the House of Lords.
Section 30 of the Advocates Act, 1961 (25 of
1961) confers on all Advocates the statutory right to practise in all courts
including the Supreme Court, before any tribunal or person legally authorised
to take evidence, and before any other authority or person before whom such
advocate is by or under any law for the time being in force entitled to
practise. Section 14 of the Bar Councils Act recognises a similar right. If a
citizen has the right to move the High Court or the Supreme Court against the
invasion of his fundamental rights, the statutory right of the advocate to
assist the citizen steps in and helps the enforcement of the fundamental rights
of the citizen. It is hardly necessary to emphasise that in the enforcement of
fundamental rights guaranteed to the citizens the legal profession plays 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).
496 In this connection, we ought to add that
there is no substance in the grievance made by Mr. Seervai that Keshav Singh
acted illegally in impleading the House to the habeas corpus petition filed by
him before the Lucknow Bench. In our opinion, it cannot be said that the House
was improperly joined by Keshav Singh, because it was open to him to join the
House on the ground that his commitment was based on the order passed by the
House, and in that sense the House was responsible for, and had control over,
his commitment (vide The King v. The Earl of Crewe, Ex parte Sekgome(1) and The
King v. Secretary of State for Home Affairs, Ex parte O'brien(2). Besides, the
fact that Keshav Singh joined the House to his petition, can have no relevance
or materiality in determining the main question of the power of the House to
take action against the Judges, the Advocate, and the 'party for their alleged
contempt.
As we have indicated at the outset of this
opinion, the crux of the matter is the, construction of the latter part of Art.
194(3), and in the light of the assistance in which we must derive from the
other relevant and material provisions of the Constitution, it is necessary to
hold that the particular power claimed by the House that its general warrants
must be held to be conclusive, cannot be deemed to be the subject-matter of the
latter part of Art. 194(3). In this connection, we may incidentally observe
that it is somewhat doubtful whether the power to issue a general unspeaking
warrant claimed by the House is consistent with s. 554(2)(b) and s. 555 of the
Code of Criminal Procedure.
It appears that in England, general warrants
are issued in respect of commitment for contempt by superior courts of record,
and the whole controversy on this point, therefore, rested on the theory that
the right to issue a general warrant which is recognised in respect of superior
Courts of Record must be conceded to the House of Commons, because as a part of
the High Court of Parliament it is itself a superior Court of Record.
Before we part with this topic, there are two
general considerations to which we ought to advert. It has been urged before us
by Mr. Seervai that the right claimed by the House to issue a conclusive
general warrant in respect of contempt is an essential right for the effective
functioning of the House itself, and he has asked us to deal with this matter
from this point of view. It is true that this right appears to have been
recognised by courts in England by agreement or convention or by considerations
of comity; but we think it is strictly not accurate to say that every (1)
[1910] 2 K.B. 576.
(2) [1923] 2 K.B. 361.
497 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 behaviour,
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
punish for contempt as it relates to keeping order among its own members, to
compelling their attendance, to protecting from assaults or disturbances by
others (except by slander and libel), to determining election cases and
impeachment charges, and to exacting information about other departments in aid
of the legislative function(1).
Nobody has ever suggested that the American
Congress has not been functioning effectively because it has not been armed
with the particular power claimed by the House before us.
In India, there are several State
Legislatures in addition to the Houses of Parliament. If the power claimed by
the House before us is conceded, it is not difficult to imagine that its
exercise may lead to anomalous situations. If by virtue of the absolute freedom
of speech conferred on the Members of the Legislatures, a Member of one
Legislature makes a speech in his legislative chamber which another legislative
chamber regards as amounting to its contempt, what would be the position ? The
latter legislative chamber can issue a general warrant and punish the Member
alleged to be in contempt, and a free exercise of such power may lead to very
embarrassing situations. That is one reason why the Constitution-makers thought
it necessary that the Legislatures should in due course enact laws in respect
of their powers, privileges and immunities, because they knew that when such
laws are made, they would be subject to the fundamental rights and would be
open to examination by the courts in India. Pending the making of such laws,
powers, privileges and immunities were conferred by the latter part of Art.
194(3). As we have already (1) Wills, constitutional Law, p. 145.
498 emphasised, the construction of this part
of the article is within the jurisdiction of this Court, and in construing this
part, we have to bear in mind the other relevant and material provisions of the
Constitution. Mr. Seervai no doubt invited our attention to the fact that the
Committees of Privileges of the Lok Sabha and the Council of States have
adopted a Report on May 22, 1954 with a view to avoid any embarrassing or
anomalous situations resulting from the exercise of the legislative powers and
privileges against the members of the respective bodies, and we were told that
similar resolutions have been adopted by almost all the Legislatures in India.
But these are matters of agreement, not matters of law, and it is not difficult
to imagine 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.
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 proceedings 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 the House, how can it be said that the Court has no jurisdiction to make an
interim order in such proceedings? As has been held by this Court in State of
Orissa v. Madan Gopal Rungta, and Others("), an interim relief can be
granted only in aid of, and as ancillary to, the main relief which may be
available to the party on final determination of his rights in a suit or
proceeding. Indeed, as Maxwell has observed, when an Act confers a
jurisdiction, it impliedly also grants the power of doing all such acts, or
employing such means, as are essentially necessary to its execution(2). That
being so, the argument based on the relevant provisions of the Criminal
Procedure (1) [1952] S.C.R. 28.
(2) Maxwell on Interpretation of Statutes,
11th ed., p. 350.
499 Code and the decision of the Privy
Council in Lala Jairam Das and Others v. King Emperor(1), is of no assistance.
We ought to make it clear that we are dealing
with the question of jurisdiction and are not concerned with the propriety or
reasonableness of the exercise of such jurisdiction. Besides, in the case of a
superior Court of Record, it is for the court to consider whether any matter
falls within its jurisdiction or not. Unlike a court of limited jurisdiction,
the superior Court is entitled to determine for itself questions about its own
jurisdiction.
"Prima facie", says Halsbury,
"no matter is deemed to be beyond the jurisdiction of a superior court
unless it is expressly shown to be so, while nothing is within the jurisdiction
of an inferior court unless it is expressly shown on the face of the proceedings
that the particular matter is within the cognizance of the particular
court."(1). We cannot, therefore, accede to the proposition that in
passing the order for interim bail, the High Court can be said to have exceeded
its jurisdiction with the result that the order in question is null and void.
Besides, the validity of the order has no
relation whatever with the question as to whether in passing the order, the
Judges have committed contempt of the House.
There is yet one more aspect of this matter
to which we may incidentally refer. We have already noticed that in the present
case, when the habeas corpus petition was presented before the Lucknow Bench at
2 P.m. on March 19, 1964, both parties. appeared by their respective Advocates
and agreed that the application should be taken up at 3 P.m. the same day, and
yet the House which was impleaded to the writ petition and the other
respondents to it for whom Mr. Kapur had appeared at the earlier stage, were
absent at that time.
That is how the Court directed that notice on
the petition should be issued to the respondents and released the petitioner on
bail subject to the terms and conditions which have already been mentioned; and
it is this latter order of bail which has led to the subsequent developments.
In other words, before taking the precipitate action of issuing warrants
against the Judges of the Lucknow 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 (1) 72 I.A. 120.
(2) Halsbury's Laws of England, vol. 9, p.
349.
500 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 produced. If this
course had been adopted in the present proceedings, it could have been said
that the House in exercising its powers and privileges, conformed to the
pattern which, by convention, the House of Commons has invariably followed in
England during the last century and more; but that was not done; and as soon as
the House knew that an order granting bail had been passed, it proceeded to
consider whether the Judges themselves were not in contempt.
On these narrow facts, it would be possible
to take the view that no question of contempt committed by the Judges arises.
In view of the fact that Mr. Kapur had
appeared before the Court at 2 P.m. on behalf of all the respondents and had
agreed that the matter should be taken up at 3 P.m., it was his duty to have
appeared at 3 P.m. and to have either filed a return or to have asked for time
to do so on behalf of the House. If the House did not instruct Mr. Kapur to
take this step and the Court had no knowledge as to why Mr. Kapur did not
appear, it is hardly fair to blame the Court for having proceeded to issue
notice on the petition and granted bail to the petitioner. In these proceedings
it is not necessary for us to consider what happened between Mr. Kapur and the
House and why Mr. Kapur did not appear at 3 P.m. to represent the House and the
other respondents. The failure of Mr. Kapur to appear before the Court at 3
P.m. has introduced an unfortunate element in the proceedings before the Court
and is partly responsible for the order passed by the Court. One fact is clear,
and that is that at the time when the Court issued notice and released the
petitioner on bail, it had no knowledge that the warrant under which the
petitioner had been sentenced was a general warrant and no suggestion was made
to the Court that in the case of such a warrant the Court had no authority to
make any order of bail. This fact cannot be ignored in dealing with the case of
the House that the Judges committed contempt in releasing the petitioner on
bail.
But we ought to make it clear that we do not
propose to base our answers on this narrow view of the matter, because
questions 3 and 5 are broad enough and they need answers on a correspondingly
broad basis. Besides, the material questions arising from this broader aspect
have been fully argued before us, and it is plain that in making the present
Reference, the President desires that we should render our answers to all the
questions and not ,exclude from our consideration any relevant aspects on the
ground 501 that these aspects would not strictly arise on the special facts
which have happened so far in the present proceedings.
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 fourwalls
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 their 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 Advocate, and it was within its
jurisdiction to pass the interim orders prohibiting the further execution of
the impugned orders passed by the House.
Before we part with this topic, we would like
to refer to one aspect of the question relating to the exercise of power to
punish for contempt. So far as the courts are concerned, Judges always keep in
mind the warning addressed to them by Lord Atkin in Andre Paul v.
Attorney-General of Trinidad(1).
Said Lord Atkin "Justice is not a
cloistered virtue; she must be allowed to suffer the scrutiny and respectful
even though out-spoken comments of ordinary men." We ought never to forget
that the power to punish for contempt large as it is, must always be exercised
cautiously, wisely and with circumspection. Frequent or indiscriminate use of
this power in anger or irritation would not help to sustain the dignity or
status of the court, but may sometimes affect it adversely. Wise Judges never
forget that the best way to sustain the dignity and status of their office is
to deserve respect from the public at large by the quality of their judgments,
the fearlessness, fairness and objectivity of their approach, and by the
restraint, dignity and decorum which they observe in their judicial conduct. We
venture to think that what is true of the Judicature is equally true of the
Legislatures.
Having thus discussed all the relevant points
argued before us and recorded our conclusions on them, we are now in a position
(1) A.I.R. 1936 P.C. 141.
502 to render our answers to the five questions
referred to us by the President. Our answers are:(1) On the facts and
circumstances of the it was competent for the Lucknow Bench of the High Court
of Uttar Pradesh, consisting of N.
U. Beg and G. D. Sahgal JJ., to entertain and
deal with the petition of 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 Keshav Singh on bail pending the disposal of his said petition.
(2) On the facts and circumstances of the
case, Keshav Singh by causing the petition to be presented on his behalf to the
High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon Advocate, by
presenting the said petition, and the said two Hon'ble Judges by entertaining
and dealing with the said petition and ordering the release of Keshav Singh on
bail pending disposal of the said petition, did not commit contempt of the
Legislative Assembly of Uttar Pradesh.
(3) On the facts and circumstances of the
case, it was not competent for the Legislative Assembly of Uttar Pradesh to
direct 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
petitions from implementing the aforesaid direction of 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 503 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, does not commit
contempt of the said Legislature;
and the said Legislature is not competent to
take proceedings against such a Judge in the exercise and enforcement of its
powers, privileges and immunities. In this answer, we have deliberately omitted
reference to infringement of privileges and immunities of the House which may
include priveleges and immunities other than those with which we are concerned
in the present Reference.
Sarkar J. This matter has come to us on a
reference made by the President under Art. 143 of the Constitution. The
occasion for the reference was a sharp conflict that arose and still exists
between the Vidhan Sabha (Legislative Assembly) of the Uttar Pradesh State
Legislature, hereinafter referred to as the Assembly, and the High Court of
that State. That conflict arose because the High Court had ordered the release
on bail of a person whom the Assembly had committed to prison for contempt. The
Assembly considered that the action of the Judges making the order and of the
lawyer concerned in moving the High Court amounted to contempt and started
proceedings against them on that basis, and the High Court, thereupon, issued
orders restraining the Assembly and its officers from taking steps in
implementation of the view that the action of the Judges and the lawyer and
also the person on whose behalf the High Court had been moved amounted to
contempt.
A very large number of parties appeared on
the reference and this was only natural because of the public importance of the
question involved. These parties were divided into two broad groups, one
supporting the Assembly and the other, the High Court.
I shall now state the actual facts which gave
rise to the conflict. The Assembly had passed a resolution that a reprimand be
administered to one Keshav Singh for having committed contempt of the Assembly
by publishing a certain pamphlet libelling one of its members. No question as
to the legality of this resolution arises in this case and we are concerned
only with what followed. Keshav Singh who was a resident of Gorakhpar, in spite
of being repeatedly required to do so, failed to appear before the Assembly
which held its sittings in Lucknow, to receive the reprimand 504 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 there 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 Singh be
sentenced to imprisonment for seven days for having written a letter worded in
language which constitutes ,contempt of the House and his misbehaviour in view
of the House." A general warrant was issued to the Marshal of the House
and the Superintendent, District Jail, Lucknow which stated, "Whereas the
.... Assembly has decided .... that Shri Keshav Singh be sentenced to simple
imprisonment for seven days for committing the offence of the contempt of the
Assembly, it is accordingly ordered that Keshav Singh be detained in the
District Jail, Lucknow for a period of seven days." The warrant did not
state the facts which constituted the contempt. Keshav Singh was thereupon
taken to the Jail on the same day and kept imprisoned there. On March 19, 1964,
B. Solomon, an advocate, presented a petition to a Bench of the High Court of
Uttar Pradesh then constituted by Beg and Sahgal JJ., which sat in Lucknow, for
a writ of habeas corpus for the release of Keshav Singh alleging that he had
been deprived of his personal liberty without any authority of law and that
this detention was mala fide. This Bench has been referred to as the Lucknow
Bench. This petition was treated as having been made under Art. 226 of the
Constitution and S. 491 of the Code of Criminal Procedure.
On the same date the learned Judges made an
order that Keshav Singh be released on bail and that the petition be admitted
and notice be issued to the respondents named in it. Keshav Singh was promptly
released on bail. This order interfered with the sentence of imprisonment
passed by the House by permitting Keshav Singh to be released before he had
served the full term of his sentence. On March 21, 1964, the, Assembly 505
passed a resolution stating that Beg J., Sahgal J., B.
Solomon and Keshav Singh had committed
contempt of the House and that Keshav Singh be immediately taken into custody
and kept confined in the District Jail for the remaining term of his
imprisonment and that Beg J., Sahgal J. and B. Solomon be brought in custody
before the House, and also that Keshav Singh be brought before the House after
he had served the remainder of his sentence. Warrants were issued on March
23. 1964 to the Marshal of the House and the
Commissioner of Lucknow for carrying out the terms of the resolution. On the
same day, Sahgal J. moved a petition under Art. 226 of the Constitution in the
High Court of Uttar Pradesh at Allahabad for a writ of certiorari quashing the
resolution of the Assembly of March 21, 1964 and for other necessary writs
restraining the Speaker and the Marshal of the Assembly and the State
Government from implementing that resolution and the execution of the orders
issued pursuant to the resolution. The petition however did not mention that the
war.rants 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 had
required their presence before the House for giving them an opportunity to
explain their position and it resolved that the question may be decided after
giving an opportunity to the above-named persons according to the rules to
explain their conduct. Pursuant to this resolution, notices were issued on
March 26, 1964 to Beg J., Sahgal J. and B. Solomon informing them that
"they may appear before the Committee at 10 A.M. on April 6,
1964.............. to make-their submissions". The warrants issued on
March 23, 1964, which had never been executed, were withdrawn in view of these
notices. The present reference was made on March 26. 1964 and thereupon the
Assembly withdrew the notices of March 26, 1964 stating that in view of the
reference the two Judges and Solomon and Keshav Singh need not appear before
the Privilege Committee as required.
506 These 'facts are set out in the recitals
contained in the order of reference. There is however one dispute as to the
statement of facts in the recitals. It is there stated that the Assembly
resolved on March 21, 1964 that the two Judges, Solomon and Keshav Singh
"committed, by their actions aforesaid, contempt of the House." The
words "actions aforesaid" referred to the presentation of the
petition of Keshav Singh of March 19, 1964 and the order made thereon.
It is pointed out on behalf of the Assembly
that the resolution does not say what constituted the contempt. This contention
is correct.
The main question 'in this reference is
whether the Assembly has. the privilege of committing a person to prison for
contempt by general warrant, that is, without stating the facts, which
constituted the contempt, and if it does so, have the courts of law the power
to examine the legality of such a committal'? In other words if there is such a
privilege, does it take precedence over the fundamental rights of the detained
citizen. It is said on behalf of the Assembly that it has such a privilege and
the interference by the court in the present case was without jurisdiction.
The question is then of the privilege of the
Assembly, for if it does -,lot possess the necessary privilege, it is not
disputed, that what the High Court has done in this case would for the present
purposes be unexceptionable.
First then as to the privileges of the
Assembly. The Assembly relies for purpose on cl. (3) of Art. 194 of the
Constitution. The first three clauses of that article may at this stage be set
out.
Art. 194(1) Subject to the provisions of this
Constitution and to the rules and standing orders regulating the procedure of
the Legislature, there shall be freedom of speech in +'he 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 507 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.
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 and
immunities of its two Houses. The Assembly, therefore, claims that :It has
those privileges which the House of Commons in England had on January 25, 1950.
I would like at this stage to say a few
general words about "powers, privileges and immunities" of the House
of Commons or its members. First I wish to note that it is not necessary for
our purposes to make a distinction between "privileges", "
powers" and "immunities". They are no doubt different in the
matter of their respective contents but perhaps in no otherwise. Thus the right
of the House to have -absolute control of its internal proceedings may be
considered as its privilege, its right to punish one for contempt may be more
properly described as its power, while the right that no member shall be liable
for anything said in the House may be really an immunity. All these rights are
however created by one law and judged by the same standard. I shall for the
sake of convenience, describe them all as "privileges". Next I note
that this case is concerned with privileges of the House of Commons alone, and
not with those of its members and its committees. I stress however that the
privileges of the latter two are in no respect different from those of the
former except as to their content,;.
The nature of the privileges of the House of
Commons can be best discussed by referring to May's Parliamentary Practice,
which is an acknowledged work of authority on matters concern in the English
Parliament. It may help to observe here that for a long time now there is no
dispute as to the nature of the recognised privileges of the Commons.
I start to explain the nature of the
privileges by pointing out the distinction between them and the functions of
the House. Thus the financial powers of the House of Commons to initiate
taxation legislation is often described as its privilege. This, however, is not
the kind of privilege of the House of Commons to which cl. (3) of Art. 194
refers.
Privileges of the House of Commons have a
technical meaning in English Parliamentary Law and the article uses the word in
that sense only. That technical sense has been described in these words:
"[C]ertain fundamental 508 rights of each House which are generally
accepted as necessary for the exercise of its constitutional
functions."(1) A point I would like to stress now is that it is of the
essence of the nature of the privileges that they are ancillary to the main
functions of the House of Commons.
Another thing which I wish to observe at this
stage is that "[s]one 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" (2). 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 separate 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(-').
"Whether in all cases and under all
circumstances the Houses are the sole judges of their own privileges, in the
sense that a resolution of either House on the subject has the same effect for
a court of law as an Act of Parliament, is a question which it is not now
necessary to determine. No doubt, to allow any review of parliamentary
privilege by a court of law may lead, has led, to very grave complications, and
might in many supposable cases end in the privileges of the Commons being
determined by the Lords. But, to hold the resolutions of either House
absolutely beyond inquiry in a court of law may land us in conclusions not free
from grave complications too. It is enough for me to say that it seems to me
that in theory the question is extremely hard to solve; in practice it is not
very important, and at any rate does not now arise." This passage should
suffice to illustrate the nature of the dispute. It will not be profitable at
all, and indeed I think it will be 'mischievous,' to enter upon a discussion of
that dispute for it will only serve to make turbid, by raking up impurities
which have settled down, a stream which has run clear now for years.
Furthermore (1) May', Parliamentary Practice, 16th ed. p. 42.
(3) (1884) L.R. 12 Q.B.D. 271, 275.
(2) lbid, p. 44.
509 that dispute can never arise in this
country for here it is undoubtedly for the courts to interpret the Constitution
and, therefore, Art. 194(3). It follows that when a question arises in this
country under that article as to whether the House of Commons possessed a
particular privilege at the commencement of the Constitution, that question
must be settled, and settled only, by the courts of law. There is no scope of
the dreaded "dualism" appearing here, that is, courts entering into a
controversy with a House of a Legislature as to what its privileges are. I
think what I have said should suffice to explain the nature of the privileges
for the purposes of the present reference and I will now proceed to discuss the
privileges of the Assembly that are in question in this case, using that word
in the sense of rights ancillary to the main function of the legislature.
The privilege which I take up first is the
power to commit for contempt. It is not disputed that the House of Commons has
this power. All the decided cases and -text-books speak of such power.
"The power of commitment is truly described as the' 'keystone of
parliamentary privilege'......without it the privileges of Parliament could not
have become self subsistent, but, if they had not lapsed, would have survived
on sufferance."(1) In Burdett V. Abbott, (2) 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 and self-protection in their own hands........
The possession of this power by the House of
Commons is, therefore, undoubted.
It would help to appreciate the nature of the
power to commit for contempt to compare it with breach of privlege which itself
may amount to contempt. Thus the publication of 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 (1) May, P. 90. (2) 104 E.R, 501, 559.
510 dignity or authority.(1) "The
functions, privileges and disciplinary powers of a legislative body are thus
closely connected. The privileges are the necessary complement of the
functions, and the disciplinary powers of the privileges."(1) I may add
that it is not in dispute that power to commit for contempt may be exercised
not only against a member of the House but against an outsider as well. (3) It
was contended on behalf of the High Court that the power of the House of
Commons to commit for contempt was not conferred by cl. (3) of Art. 194 on the
Houses of a State Legislature because our Constitution has to be read along
with its basic scheme providing for a division of powers and the power to
commit to prison for contempt being in essence a judicial power, can under our
Constitution be possessed only by a judicial body, namely, the courts and not
by a legislative body like the Assembly. It was, therefore contended that Art.
194(3) could not be read as conferring judicial powers possessed by the House
of Commons in England as one of its privileges on a legislative body and so the
Assembly did not possess it.
This contention of the High Court is, in my
view, completely without foundation; both principle and authority are against
it. This Court has on earlier occasions observed that the principle of
separation of powers is not an essential part of our Constitution : see for
example In re. Delhi Laws Act(1). Again the Constitution is of course supreme
and even if it was based on the principle of separation of powers, there was
nothing to prevent the Constitution makers, if they so liked, from conferring
judicial powers on a legislative body. If they did so, it could not be said
that the provision concerning it was bad as our Constitution was based on a
division of powers. Such a contention would of course be absurd. The only
question, therefore, is whether our Constitution-makers have conferred the
power to commit on the Legislatures. The question is not whether they had the
power to do so, for there was no limit to their powers. What the
Constitution-makers had done can, however, be ascertained only from the words
used by them in the Constitution that they made. If those words are plain,
effect must be given to them irrespective of whether our Constitution is based
on a division of power or not. That takes me to the language used in cl. (3) of
Art. 194. The words there appearing are "the powers, privileges and
immunities of a House.... shall (1) May, p. 43. (2) lbid.
(3) Ibid., p. 91 (4) [1951] S.C.R. 747,883.
511 be those of 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.
This question is further completely concluded
by the decision of this Court in Pt. M. S. M. Sharma v. Shri Sri Krishna
Sinha(1). 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. On
this point Subba Rao J. expressed no dissent.
Further, the Judicial Committee in England
has in two cases held that under provisions, substantially similar to those of
Art. 194(3) of our Constitution, the power of the House of Commons to commit
for contempt had been conferred on certain legislative bodies of some of the
British Colonies.
In the Speaker of the Legislative Assembly of
Victoria v.
Glass(1) it was held that a statute stating.
"The Legislative Council of Victoria...... shall hold, enjoy and exercise
such and the like privileges, immunities and powers as...... were held, enjoyed
and exercised by the Commons House of Parliament of Great Britain and
Ireland" conferred on the Houses of the Legislature -of the Australian
Colony of Victoria the judicial power to commit for contempt. In Queen v.
Richards(1) it was held that s. 49 of the Commonwealth of Australia
Constitution Act, 1901 which provided that "the powers, privileges and
immunities of the Senate and the House of Representatives .... 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...... ", conferred on
the Houses judicial powers of committing a person to prison for contempt. It
was observed by Dixon C.J.
"This is not the occasion to discuss the
historical grounds upon which these powers and privileges attached to the House
of Commons. It is sufficient to say (1) [19591 Supp. 1 S.C.R. 806.
(2) (1869-71) 3 L.R. P.C. 560.
(3) 92 C.L.R. 157.
512 that they were regarded by many
authorities as proper incidents of the Legislative function, notwithstanding
the fact that considered more theoretically-perhaps one might even say,
scientifically-they belong to the judicial sphere. But our decision is based
upon the ground that a general view of the Constitution and the separation of
powers is not a sufficient reason for giving to these words, which appear to us
to be so clear, a restrictive or secondary meaning which they do not properly
bear."(1) The similarity in the language of the provisions in the
Australian Constitution and our Constitution is striking.
It was said however that they were not the
same for under s. 49 the Australian Houses might by resolution declare the
privileges whereas in our case the privileges had to be defined by law and that
in Australia there were no fundamental rights. I Confess I do not follow this
argument at all. The guestion is not how the privileges are declared in
Australia or what effect fundamental rights have on privileges, but as to the
meaning of the words which in the two statutes are identical. In Richard's
case(1) 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(1). Reference may also be made to
Fielding v. Thomas(1) 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.
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 a general warrant without stating the facts which
constitute the contempt, then the courts will not review that order("). It
was however said on behalf of the High Court that this power of the English
House of Commons was -not one of its privileges but it was possessed by that
House because it was a superior court and, therefore, that power, not being a
privilege, has not been conferred on the State Legislatures by Art. 194(3) of
our Constitution. It is not claimed by the Assembly that it is a superior court
and has, therefore, a power to commit for contempt by a general warrant. I
would find nothing to justify such a claim if it had been (1) 92 C.L.R. 157,
(2) 92 C.L.R. 157.
(3) 92 C.L.R. 157,171. (4) [1896] A.C. 600.
(5) See Burdett v. Abbot 3 E. R. 1289; May's
Parliamentary Practice 16th ed. p. 173 513 made. This takes me to the question,
is the power to commit by a general warrant one of the privileges of the House
of Commons, or, is it something which under the common law of England that
House possessed because it was a superior court ? I find no authority to
support the contention that the power to commit by a general warrant with the
consequent deprivation of the jurisdiction of the Courts of law in respect of
that committal is something which the House of Commons had because it was a
superior court. First, I do not think that the House of Commons was itself ever
a court.
The history of that House does not support
such a contention. Before proceeding further I think it necessary to observe
that we are concerned with the privileges of the House of Commons as a separate
body though no doubt a constituent part of the British Parliament which
consists also of the King and the House of Lords. The privileges however with
which we are concerned are those which the House of Commons claims for itself
alone as an independent body and as apart from those possessed by the House of
Lords. Indeed it is clear that the privileges of the two Houses are not the
same: May Ch. III. It may be that in the early days of English history the
Parliament was a court. The House of Commons, however, does not seem to have
been a part of this Court. In medieval times the legal conception was that the
King was the source of all things;
justice was considered to flow from him and,
therefore, the court of justice was attached to the King. The King's Court thus
was a court of law and that is the origin of what is called "the High
Court of Parliament". The history of the High Court of Parliament has been
summarised in Potter's Outlines of English Legal History (1958 ed.) and may be
set out as follows : The King's Council, under its older title of Curia Regis,
was the mother of the Common law courts, but still retained some judicial
functions even after the common law courts had been well-established. (p. 78).
Later however in the 14th and 15th centuries it came to be 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 Holds worth 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 514 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 Westminster; and they continued their sittings in that place after their
final, separation; May p. 12. The separation referred to is the separation
between the House of Lords and the House of Commons. It may also be pointed out
that when it is said that laws in England are made by the King in Parliament,
what happens is 'that the Commons go to the Bar of the House of Lords where the
King either in person, or through someone holding a commission from him,
assents to an Act. All this would show that the House of Commons when it sits
as a separate body it does not sit in Parliament. So sitting it is not the High
Court of Parliament. I wish here to emphasise that we are in this case
concerned with the privileges of the House of Commons functioning as a separate
body, that is, not sitting in Parliament. May observes at p. 90, "Whether
the House of Commons be, in law, a court of record, it would be difficult to
determine:" In Anson's Law of the Constitution, 5th ed. Vol. 1 at p. 197,
it has been stated that "Whether or not the House of Commons is a court of
record, not only has it the same power of protecting itself from insult by commitment
for contempt, but the Superior Courts of Law have dealt with it in this matter
as they would with one another, and have accepted as conclusive its statement
that a contempt has been committed, without asking 'What that contempt may have
been." I think in this state of the authorities it would at least be
hazardous to hold that the House of Commons was a court of record. If it was
not, it cannot be said to have possessed the power to commit for its contempt
by a general warrant as a court of record.
I now proceed to state how this right of the
House of Commons to commit by a general warrant has been dealt with by
authoritative textbook writers in England. At p. 173, after having discussed
the tussle between the Commons and the Courts in regard to the privileges of
the former and having stated that in theory there is no way of resolving the
real point at issue should a conflict between the two arise. May observes,
"In practice however there is much more agreement on the nature and
principles of privilege than the deadlock on the question of jurisdiction would
lead one to expect." He then adds, "The courts admit :(3) that the
control of each House, over its internal proceedings is absolute and cannot be
interfered with by the courts. (4) That a committal for contempt by
"either House is in practice within its exclusive jurisdiction, since the
515 facts constituting the alleged contempt need not be stated on the warrant
of committal." So May treats the right of the House of Commons to commit
by a general warrant as one of its privileges and not something to which it is
entitled under the common law as of right as a Court of Record. In Cases on
Constitutional Law by Keir and Lawson, (4th ed.) p.
126, it is stated that among the undoubted
privileges of the House 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(1). 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 adjudged guilty of contempt and
committed by either House by a warrant which does not state the causes of his
a.-rest. This observation is made in dealing with the conflict between the
House of Commons and the courts concerning the privileges of the former and
obviously treats the power to issue a general warrant as a matter of the
privilege of the House. Lastly, in Dicey's Constitutional Law (10th ed.) at p.
58 in the footnote it is stated.
"Parliamentary privilege has from the
nature of things never been the subject of precise legal definition. One or two
points are worth notice as being clearly established.
(1) Either House of Parliament may commit for
contempt; and the courts will not go behind the committal and enquire into the
facts constituting the alleged contempt provided that the cause of the contempt
is not stated." I thus find that writers of undoubted authority have
treated this power to commit by a general warrant with the consequent
deprivation of the court's jurisdiction to adjudicate on the legality of the
imprisonment, as a matter of privilege of the House and not as a right
possessed by it as a superior court.
I now proceed to refer to recent decisions of
the Judicial Committee which a also put the right of the House. of Commons to
com(1) 113 E.R. 419.
516 mit by a general warrant on the ground of
privilege. The first case which I will consider is Glass's(1) case. There the
Legislative Assembly of the Colony of Victoria by a general warrant committed
Glass to prison for contempt and the matter was brought before the court on a
habeas corpus petition. I have earlier stated that under certain statutes the
Assembly claimed the Same privileges which the House of Commons possessed. The
Supreme Court of Victoria held in favour of Glass. The matter was then taken to
the Judicial Committee and,it appears to have been argued there that "the
privilege is the privilege of committing for contempt merely; that the judging
of contempt without appeal, and the power of committing by a general Warrant,
are mere incidents or accidents applicable to this Country, and not transferred
to the Colony." The words "this Country" referred to England.
Lord Cairns rejected this argument with the following observations: "The
ingredients of judging the contempt, and committing by a general Warrant, are
perhaps the most important ingredients in the privileges which the House of
Commons in this Country possesses; and it would be strange indeed if, under a
power to transfer the whole of the privileges and powers of the House of
Commons, that which would ,only be a part, and a comparatively insignificant
part, of this privilege and power were transferred." (p. 573). He also
said, (p. 572) "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 and powers exercised by the House of Commons at
the date of the Statute, there was carried over to the Legislative Assembly of
the Colony the privilege or power of the House of Commons connected with
contempt-the privilege or power, namely, of committing for contempt, of judging
itself of what is contempt, and of committing for contempt by a Warrant stating
generally that a contempt had taken place." In Richard's case (2) the
power to commit by a general warrant was considered as a privilege of the House
and the observations of Lord Cairns (1) (1869-71) L.R. 3 P.C. 560.
(2) 92 C.L.R. 157.
517 in Glass's(1) case were cited in support
of that view. As I have already said this view was upheld by the Judicial
Committee : Queen v. Richard (2). It is of some interest to note that Dixon
C.J. was of the opinion, as I have earlier shown, that the power to commit was
scientifically more properly a judicial power but nonetheless he found that it
was a privilege technically so called of the House of Commons and so
transferred to the Australian Houses by s. 49 of the Australian Constitution
Act of 1901. It is also necessary to state here that this case was of the year
1955 and shows that the view then held was that the right to commit by a
general warrant was a privilege of the House. I am pointing out this only
because it has been suggested that even if it was a privilege. it had been lost
by desuetude.
These cases show that that is not so.
Fielding v. Thomas(") also takes the same view.
It was said that the decisions of the
Judicial Committee were not binding on us. That may be so. But then it has not
been shown that they are wrong and, therefore, they are of value at least as
persuasive authorities. The fact that the decisions of the Judicial Committee
are not binding on us as judgments of a superior court is however to no
purpose. The real question for our decision is whether the House of Commons
possessed a certain privilege. We may either have to take judicial notice of
that privilege or decide its existence as a matter of foreign law. It is
unnecessary to decide which is the correct view. If the former, under s. 57 of
the Evidence Act a reference to the authorised law reports of England would be
legitimate and if the latter, then again under s. 38 of that Act a reference to
these reports would be justified. So in either case we are entitled to look at
these reports and since they contain decisions of one of the highest Courts in
England, we are not entitled to say that what they call a privilege of the
House of Commons of their country is not a privilege unless other equally high
authority taking a contrary view is forthcoming.
I now come to some of the English cases 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(4).In this case, in the first
court judg(1) (1869-71) L.R. 3 P.C, 560, (2) 92 C.L.R. 171.
(3) [1896] A.C. 600. (4) 104 E.R. 501.
518 ments 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 Bayley 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 necessity of such a power for the maintenance of
the dignity of the House." Ellenborough C.J., therefore, according to
Anson, clearly does not take the view that the House of Commons is a court and
all that Bayley J. does, according to him, is to put the House of Commons in
parity with a Superior Court. If the House of Commons was a court, there, of
course, was no question of putting it in parity with one. There was an appeal
from this judgment to the House of Lords and in that appeal after the close of
the arguments, Lord Eldon L.C. referred the following question to the Judges
for their advice, 16 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 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 cot-pus. 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": Burdett v. Abbot(1). The Judges answered the question in the
negative. Upon that Lord Eldon delivered his judgment with which the other
members of the Court agreed, stating that the House of Commons had the power to
commit by a general warrant. I am unable to hold that this case shows that Lord
Eldon came to that conclusion because the House of Commons was a superior
court. It seems to me that Lord Eldon thought that the House of Commons should
be treated the same way as one superior court treated another and wanted to
find out how the courts treated each other. I shall later show that this is the
view which has been taken of Lord Eldon's decision in other cases. But I will
now mention that if Lord Eldon had held that the House of Commons was a court,
a constitutional lawyer of Anson's eminence would not have put the matter in
the way that I have just read from his work.
Then I come to the case of Stockdale v.
Hansard(2). That case was heard by Lord Denman C.J., Littledale J., Patteson J.
and Coleridge J. Lord Denman said, (p. 1168), (1) 3 E.R. 1289. (2)112 E. R. 11
12.
519 "Before I finally take leave of this
head of the argument, I will dispose of the notion that the House of Commons is
a separate Court, having exclusive jurisdiction over the subject-matter, on which,
for that reason, its adjudication must be final. The argument placed the House
herein on a level with the Spiritual Court and the Court of Admiralty.
Adopting this analogy, it appears to me to
destroy the defence attempted to the present action .... 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." 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; but it is the House of Commons who are the only parties making a
declaration of what they say belongs to them." So Littledale J. also did
not consider the Commons as a court. Then came Patteson J. who stated at p.
1185, "The House of Commons by itself is not the court of
Parliament". Then again at p. 1185 he observes:
"I deny that mere resolution of the
House of Lords .... would be binding upon the Courts of Law....... much less
can a resolution of the House of Commons, which is not a Court of Judicature
for the decision of any question either of law or fact between litigant
parties, except in regard to the election of its members, be binding upon the
Courts of Law." Lastly I come to Coleridge J. He stated at p.
1196:
"But it is said that this and all other
Courts of Law are inferior in dignity to the House of Commons, and that
therefore it is impossible for us to review its decision. This argument appears
to me founded on a misunderstanding of several particulars; first, in what
sense it is that this Court is inferior to the House of Commons; next in what
sense the House is a Court at all." S.C.I./65-8 520 Then at p. 1196 he
stated :
"In truth, the House is not a Court of
Law at all, in the sense in which that term can alone be properly applied here;
neither originally, nor by appeal, can it decide a matter in litigation between
two parties; it has no means of doing so; it claims no such power;
powers of enquiry and of accusation it has,
but it decides nothing judicially, except where it is itself a party, in the
case of contempts. As to them no question of decree arises between
Courts;" The observations of Coleridge J. are of special significance for
the reasons hereafter to appear. It is obvious that neither Patteson J. nor
Coleridge J. thought that the House of Commons was a Court or possessed any
powers as such.
Next in order of date is the case of the
Sheriff of Middlesex(1). Lord Denman, C.J. said at p. 426:
"Representative bodies must necessarily
vindicate their authority by means of their own; and those means lie in the
process of committal for contempt. This applies not to the Houses of Parliament
only, but [as was observed in Burdett v. Abbot (14 East, 138)], to the Courts
of Justice, which, as well as the Houses, must be liable to continual
obstruction and insult if they were not entrusted with such powers. It is
unnecessary to discuss the question whether each House of Parliament be or be
not a Court; it is clear that they cannot exercise their proper functions
without the power of protecting themselves against interference. The test of
the authority of the House of Commons in this respect, submitted by Lord Eldon
to the Judges in Burdett v. Abbot (5 Dow, 199) was whether, if the Court of
Common Pleas had adjudged an act to be a contempt of Court, and committed for
it, stating the adjudication generally, the Court of King's Bench, on a habeas
corpus setting forth the warrant, would discharge the prisoner because the
facts and circumstances of 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 (1) 113 E.R. 419,
521 what any Court, much more what either House of Parliament, acting on great
legal authority, takes upon it to pronounce a contempt, is so." This
observation would support what I have said about the judgment of Lord Eldon in
Burdett v. Abbot(1). Denman C.J.
did not think that Lord Eldon considered the
House of Commons to be a Court for he himself found it unnecessary to discuss
that question. The basis why he thought that the House of Commons must possess
the right to commit by a general warrant was one of expediency and of confidence
in a body of that stature. Coleridge J. observes at p. 427, "It appears by
precedents that the House of Commons have been long in the habit of shaping
their warrants in that manner. Their right 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. Lord Eldon puts the case in
this manner in Burdett v. Abbot (5 Dow, 165, 199)." Great reliance is
placed on this observation of Coleridge J.
but I think that is due to a misconception.
Coleridge J. at p. 427 expressly affirms all that had been said by him and the
other Judges in Stockdale v. Hansard(2). As I have earlier shown, he had there
said that "in truth, the House is not a Court of Law at all."
Therefore when he said that the right to adjudicate in the general form was not
founded on privilege, whatever he might have meant, he did not mean that it was
founded on the House of Commons being a court.
I think what he meant was that it was a right
which the House of Commons had to possess in order to discharge its duties
properly and, therefore, not something conceded to it as a sign of honour and
respect. He might also have meant that the power was not something peculiar to
the House as it was also possessed by the courts for the same reason of
expediency, and, therefore, it was not a privilege, a term which has been used
in the sense of something which the Parliament possessed and which exceeded
those possessed by other bodies or individuals : Cf. May 42.
Then comes the case of Howard v. Gossett(3).
It will be enough to refer to the judgment of the Court of Exchequer Chamber in
appeal which begins at p. 158. That judgment was delivered by Parke B. who
observed at p. 171:
(1) 3 E.R. 1289. (2) 112 E.R. 1112.
(3) 116 E.R. 139.
522 .lm15 "the warrant of the Speaker
is, in our opinion, valid, so as to be a protection to the officer of the
House, upon a principle which, as it applies to the process and officers of
every Superior Court, must surely be applicable to those of the High Court of
Parliament and each branch ofit." Here again the House is treated as being
entitled to the same respect as a superior court, but it is not being said that
the House is a superior court.
Lastly, I come to Bradlaugh v. Gossett(1) 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.
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 from some rule of comity of courts, or of presumptive
evidence or from an agreement between the courts of law and the House or lastly
from some concession made by the former to 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 the right is anything but a privilege. The contention further
seems to me to be clearly fallacious and overlooks the basic nature of a
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 on law. That law is known as lex Parliamenti. Hence privileges are
matters which the House of Commons possesses as of right. In Stockdale v. Hansard(2)
all the Judges held that the rights of the House of Commons are based on lex
Parliamenti and that law like any other law, is a law of the land which the
courts are entitled to administer.
Now if the privilege of committing by a
general warrant, is a right enforceable in law which belongs to the House of
Commons, it cannot be a matter controlled by the rule of comity of courts.
Comity of courts is only a self-imposed restraint. It is something which the
court on its own chooses not to do. It is really not a rule of law at all.
It creates no enforceable right. A 'right' to
the privilege cannot be based on it. Besides there is no question of (1) (1884)
L.R. 12 Q.B.D. 271.
(2) 112 E.R. 11 12.
523 comity of courts unless there are two
courts, each extending civility or consideration to the other. Here we have the
House of Commons and the courts of law. The former is not a court and the
latter needs no civility or consideration from the House for its proper
functioning. Here there is no scope of applying any principle of comity of
courts.
Next as to the privilege being really nothing
more than a rule of presumption that a general warrant of the House of Commons
imprisons a person legally, so that the question of the legality of the
committal need not be examined by a court of law, I suppose it is said that
this is a presumption which the law requires to be made. If it is not so, then
the right of the House would depend on the indulgence of the judge concerned
and, therefore, be no right at all. That cannot be, nor is it said that it is
so.
What then ? If it is a presumption of law,
what is the law on which the presumption is based ? None has been pointed out
and so far as I know, none exists unless it be lex Parliamenti. Once that is
said, it really becomes a matter of privilege for the lex Parliamenti would not
create the presumption except for establishing a privilege. A right created by
lex Parliamenti is a privilege. This I have earlier said in discussing the
nature of privileges.
Lastly, has the right its origin in agreement
between the House of Commons and the courts of law, or in a concession granted
by the latter to the former ? This is a novel argument. I have not known of any
instance where a right, and therefore, the law on which it is based, is created
by an agreement with courts. Courts do not create laws at all, least of all by
agreement; they ascertain them and administer them. For the same reason, courts
cannot create a law by concession. A court has no right to concede a question
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.
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 disregard
of the purpose for which they were made. What I have quoted from 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 House of 524 Commons to
commit by a general warrant. Researches into old English history are wholly out
of place in the present context and what is more, are likely to lead to
misconceptions. To base our conclusion as to the privileges on researches into
antiquities, will furthermore be an erroneous procedure for the question is
what the privileges of the House of Commons were recognised to be in 1950.
Researches into the period when these
privileges were taking shape can afford no answer to their contents and nature
in 1950. The question can be answered only by ascertaining whether the right
under discussion was treated as a privilege of the House of Commons by
authoritative opinion in England in the years preceding 1950.
I then come to the conclusion that the right
to commit for contempt by a general warrant with the consequent deprivation of
jurisdiction of the courts of law to enquire into that committal is a privilege
of the House of Commons.
That privilege is, in my view, for the
reasons earlier stated, possessed by the Uttar Pradesh Assembly by reason of
Art. 194(3) of the Constitution.
It is then said that even so that privilege
of the Assembly can be exercised only subject to the fundamental rights of a
citizen ,guaranteed by the Constitution. That takes me to Sharma's case(1) As I
read the judgment of the majority in that case, they seem to me to hold that
the privileges of the House of Commons which were conferred on the Houses of a
State Legislature by Art. 194(3), take precedence over fundamental rights. The
facts were these. A House of the Bihar Legislature which also had made no law
defining its privileges under Art. 194(3), had directed certain parts of its
proceedings to be expunged but notwithstanding this the petitioner published a
full account of the proceedings in his paper including what was expunged. A
notice was thereupon issued to him by the House to show cause why steps should
not be taken against him for breach of privileges of the House. The privilege
claimed in that case was the right to prohibit publication of its proceedings.
The petitioner, the Editor of the paper, then filed a petition under Art. 32 of
the Constitution stating that the privilege did not control his fundamental
right of freedom of speech under Art. 19 (1) (a), and that, therefore, the
House had no right to take proceedings against him. He also disputed that the
House of Commons had the privilege which the Bihar Assembly claimed. The
majority held that the House possessed the privilege to prohibit the
publication of its proceedings and that privilege was not subject to the
fundamental right of a citizen under Art.
(1) [1959] Supp. 1 S.C.R. 806.
525 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(1) petition was
dismissed.
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.
On behalf of the Assembly it has been pointed
out that in a reference under Art. 143 we have no jurisdiction to set aside an
earlier decision of this Court, for we have to give our answers to the
questions referred on the law as it stands and a decision of this Court so long
as it stands of course lays down the law. I am unable to say that this
contention is idle. It was said on behalf of the High Court that in In re.
Delhi Laws Act(1) a question arose whether a decision of the Federal Court
which under our Constitution has the same authority as our decisions, was
right. It may be argued that this case does not help, for the question posed, itself
required the reconsideration of the earlier judgment. I do not propose to
discuss this matter further, for I do not feel So strongly in favour of the
contention of the Assembly that I should differ from the view of my learned
brothers on this question.
I feel no doubt, however, that the majority
judgment in Sharma's case(1) was perfectly correct when it held that privileges
were not subject to fundamental rights. I have earlier set out the first three
clauses of Art. 194. The first clause was expressly made subject to the
provisions of the Constitution-whatever the provisions contemplated were while
the third clause was not made so subject. Both the majority and the minority
judgments are agreed that the third clause cannot, therefore, be read as if it
had been expressly made subject to the provisions of the Constitution. For
myself, I do not think that any other reading is possible. Clause (3) of Art.
194 thus not having been expressly made subject to the other provisions of the
Constitution, how is a conflict between it and any other provisions of the
Constitution which may be found to exist, to be resolved ? The majority held
that the (1) [1959] Supp. 1. S.C.R. 806.
(2) [1951] S.C.R. 747.
526 principle of harmonious construction has
to be applied for reconciling the two and Art. 194(3) being a special provision
must take precedence over the fundamental right mentioned in Art. 19(1) (a)
which was a general provision:
(p. 860). Though Subba Rao J. said that there
was no inherent inconsistency between Art. 19 (1) (a) and Art.
194(3), he nonetheless applied the rule of
harmonious construction. He felt that since the legislature had a wide range of
powers and privileges and those privileges can be exercised without infringing
the fundamental rights, the privilege should yield to the fundamental right.
This construction, he thought, gave full effect to both the articles: (pp.
880-1). With great respect to the learned Judge, I find it difficult to follow
how this interpretation produced the result of both the articles having effect
and thus achieving a harmonious construction.
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 any 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
articles were read in Sharma's case(1) by all the Judges.
If they had not done that, there would have
been no question of a conflict between the two provisions or of reconciling
them.
Now if Art. 19 (1) (a) is to have precedence,
then a citizen has full liberty to publish whatever he likes; he can publish
the proceedings in the House even though the House prohibited their
publication. The result of that reading however is to wipe out that part of
Art. 194(3) which said that the State Legislatures shall have power and
privilege to prohibit publication of their proceedings. That can hardly be
described as harmonious reading of the provisions, a reading which gives effect
to both provisions. It is a reading which gives effect to one of the provisions
and treats the other as if it did not exist.
(1) [1959] Supp. 1 S.C.R. 806.
527 It is true that if Art. 19(1) (a)
prevailed, it would not wipe out all the other privileges of the House of
Commons which had to be read in Art. 194(3). Thus the right of the House to
exclude strangers remained intact even if the right to prohibit publication of
proceedings was destroyed by Art.
19 (1) (a). But this is to no purpose as
there never was any conflict between the right to exclude strangers and the
freedom of speech and no question of reconciling the two by the rule of
harmonious construction arose. When one part of a provision alone is in
conflict with another provision, the two are not reconciled by wiping out of
the statute book the conflicting part and saying that the two provisions have
thereby been harmonised because after such deletion the rest of the first and
the whole of the second operate. We are concerned with harmonising two
conflicting provisions by giving both the best effect possible and that is not
done by cutting the gordian knot by removing the conflicting part out of the
statute.
I agree that in view of the conflict between
Art. 194(3) and Art. 1 9 ( 1 ) (a), which arises in the manner earlier stated,
it has to be resolved by harmonious construction.
As I understand the principle, it is this.
When the Legislature-here the Constitutionmakers-enacted both the provisions
they intended both to have effect. If per chance it so happens that both cannot
have full effect, then the intention of the legislature would be best served by
giving the provisions that interpretation which would have the effect of giving
both of them the most efficacy. This, I believe, is the principle behind the
rule of harmonious construction. Applying that rule to Sharma's case(1), 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 had never been put in 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(1).
Subba Rao J. gave another reason why he
thought that fundamental rights should have precedence over the privileges of
the (1) [1959] Supp. 1 S.C.R. 806.
528 Legislature and on this also learned
counsel for the High Court relied in the present case. Subba Rao J. said that
that part of Art. 194(3) under which the State Legislature claimed the same
privilege as those of the House of Commons in England, which has been called
the second part of this clause, was obviously a transitory provision because it
was to have effect until the Legislature made a law defining the privileges as
the Constitution-makers must have intended it to do. He added that if and when the
Legislature made that law that would be subject to the fundamental rights and
it would be strange if provisions which were transitory were read as being free
of those rights. The majority in Sharma's case(1) no doubt said without any
discussion that the law made under Art. 194(3) would be subject to all
fundamental rights. Learned advocate for the Assembly however contended before
us that that view was not justified. In the present case it seems to me it
makes no difference whatever view is taken. Assume that the law made by a
Legislature defining its privileges has to be subject to fundamental rights.
But that will be so only because Art. 13 says so. Really the law made under
Art. 194(3) is not to be read as subject to fundamental rights; the position is
that if that law is in conflict with any fundamental right, it is as good as
not made at all. That is the effect of Art. 13. The argument that since the
laws made under Art. 194(3) are subject to fundamental rights, so must the
privileges conferred by the second part of cl. (3) be, is therefore based on a
misconception. Article 13 makes a law bad if it conflicts with fundamental
rights. It cannot be argued that since Art. 13 might make laws made under cl.
(3) of Art. 194 void, the privileges conferred by the second part of that
clause must also be void. Article 13 has no application to a provision in the
Constitution itself. It governs only the laws made by a State Legislature which
Art. 194(3) is not. Therefore, I do not see why it must be held that because a
law defining privileges if made, would be void if in conflict with fundamental
rights, the privileges incorporated in Art.
194(3)-1 have already said that that is how
the second Dart of Art. 194(3) has to be read-must also have been intended to
be subject to the fundamental rights. If such was the intention, cl. (3) would
have started with a provision that it would be subject to the Constitution. The
fact that in cl. (1 ) the words 'subject to the provisions of this
Constitution' occur while they are omitted from cl. (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 1.
[1959] Supp. 1 S.C.R. 806.
529 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.
It was also said 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 to read into the Constitution things which
are not there. We are certainly not entitled to say that a specific provision
in the Constitution is to have no effect only because it is in conflict with
fundamental rights, or because the latter are from their nature, though not
expressly made so, transcendental.
Then as to the second part of Art. 194(3)
being transitory, that depends on what the intention of the Constitution makers
was. No doubt it was provided that when the law was made by the Legislature
under the first part of Art. 194(3) the privileges of the House of Commons
enjoyed under the latter part of that provision would cease to be available.
But I do not see that it follows from this
that the second part was transitory. There is nothing to show that the
Constitution-makers intended that the Legislature should make its own law
defining its privileges. The Constitution makers had before them when they made
the Constitution in 1950, more or less similar provisions in the Australian
Constitution Act, 1901 and they were aware that during, fifty years, laws had
not been made in Australia defining the privileges of the Houses of the
Legislatures there but the Houses had been content to carry on with the
privileges of the House of Commons conferred on them by their Constitution.
With this example before them I have no reason to think that our
Constitution-makers, when they made a similar provision in our Constitution,
desired that our Legislatures should make laws defining their own privileges
and get rid of the privileges of the House of Commons conferred on them by the
second part of Art. 194(3). 1 think it right also to state that even if the
rights conferred by the second part of Art. 194(3) were transitory, that would
not justify a reading the result of which would be to delete a part of it from
the Constitution.
It is necessary to notice at this stage that
in Ganupati Keshav Ram Reddy v. Nafisul Hassan(1) his Court held the arrest of
(1) A.I.R. 1954 S.C.636 530 a citizen under the Speaker's order for breach of
privilege of the Uttar Pradesh Assembly without producing him before a
magistrate as required by Art. 22 (2) of the Constitution was a violation of
the fundamental right mentioned there.
Reddy's case(1) states no reason in support
of the view taken. Subba Rao J., though he noticed this, nonetheless felt bound
by it. The majority did not do so observing that the decision there proceeded
on a concession by counsel. In this Court learned Advocate for the High Court
said that there was no concession in the earlier case. I notice that Das C.J."
who delivered the judgment of the majority in Sharma's case(1) was a member of
the Bench which decided Reddy's case(1). If the decision in 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 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(1) 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(1)
especially as the majority in Sharma's case(1) did not follow it.
It was also said that the privileges were
only intended to make the Legislatures function smoothly and without
obstruction. The main function of the Legislatures, it was pointed out, was the
making of laws and the object of the privileges was to assist in the due
discharge of that function. It was contended that if the laws made by a
Legislature, for the making of which it primarily exists, are subject to
fundamental rights, it is curious that something which is ancillary to that
primary function should be free of them. I find nothing strange. in this. Laws
made by a Legislature are subject to fundamental rights because the
Constitution says so. The privileges are not subject because they are conferred
by the Constitution itself and have neither been made so subject nor found on a
proper interpretation to be such.
I believe I have now discussed all the
reasons advanced in support of the view that the majority decision in Sharma's
case (2) was erroneous. As I have said, I am not persuaded that these reasons
are sound.
C. 636. (2) [1959] Supp. 1 S.C.R. 806.
531 In R. K. Karanjia v. The Hon'ble Mr. M.
Anantasayanam lyyangar, Speaker, Lok Sabha (W.P. No. 221 of 1961 unreported),
which was a petition under Art. 32 of the Constitution, a Bench of seven Judges
of this Court was asked to reconsider the Correctness of the majority decision
in Sharma's case(1) but it considered that decision to be correct and refused
to admit the petition. This is another reason for holding that Sharma's case
(1) was correctly decided.
I now come to the other contention concerning
Sharma's case(1). It was said that all that the majority judgment held in that
case was that the privilege of prohibiting publication of its proceedings
conferred on a Legislature by the second part of cl. (3) of Art. 194 was not
subject to the fundamental right of freedom of speech guaranteed by Art. 19 (1)
(a) It was pointed out that that case did not say that all the privileges under
the second part of Art.
194(3) would take precedence over all
fundamental rights.
It was stressed that Das C.J. dealt with the
argument advanced in that case that Art. 21 would be violated by the exercise
of the privilege of the House to commit for contempt by stating that there
would be no violation of Art.
21 as the arrest would be according to
procedure established by law because the arrest and detention would be
according to rules of procedure framed by the House under Art. 208.
It was contended that the majority therefore
held that the fundamental right guaranteed by Art. 21 would take precedence
over the privilege to commit.
This contention is also not acceptable tome.
No doubt Sharma's case(-') was 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 in the case of a conflict
between many other privileges and many other fundamental rights. Now that
reason was that to 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 privilege created by the second part of Art. 194(3)
and a fundamental right, that conflict should be resolved by harmonising the
two. The decision would apply certainly to the conflict (1) [1959] Supp. 1
S.C.R. 806.
532 between the privilege of committal to
prison for contempt by a general warrant without the validity of that warrant
being reviewed by a court of law and the fundamental rights guaranteed by Arts.
21, 22 and 32. The majority judgment would be authority for holding that the
conflict should be solved by a harmonious construction. Indeed that was the
view of the minority also. The difference was as to the actual construction.
Das C.J. no doubt said that there was no
violation of Art.
21 in Sharma's case(1) because the deprivation
of liberty was according to procedure established by law. That was, to my mind,
only an alternative reason, for he could have dealt with that point on the same
reason on which he said that the fundamental right under Art. 19 (1) (a) must
yield to the privilege of the House to prohibit publication of its proceedings,
namely, by the application of the rule of harmonious construction. He could
have said by the same logic that he used earlier, that the fundamental right
guaranteed by Art. 21 was general and the privilege to detain by a general
warrant was a special provision and must, therefore, prevail. I am unable to
hold that by dealing with the argument based on Art. 21 in the manner he did,
Das C.J. held that the fundamental right under Art. 21 took precedence over the
privilege of committal by a general warrant which the Legislature possessed
under the second part of cl. (3) of Art. 194. If he did so, then there would be
no reason why he should have held that fundamental right of freedom of speech should
yield to the House's privilege to stop publication of its proceedings. Another
reason for saying that Das C.J. did not hold that Art. 21 took precedence over
the privilege to commit by a general warrant is the fact that he held that
Reddy's case(1) was wrongly decided. That case had held that Art. 22 had
precedence over the privilege of committal. If Art. 22 did not have precedence,
as Das C.J. must have held since he did not accept the correctness of Reddy's
case(2), no more could he have held that Art. 21 would have precedence over the
privilege to commit for contempt.
Some reference was made to cls. (1) and (2)
of Art. 194 to show that Sharma's case (1) decided that Art. 19 (1) (a) alone
had to yield to the privilege conferred by the second part of cl. (3) of Art.
194, but I do not think that the majority decision in Sharma's case(1) 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 (1) [1959] Supp. 1 S.C.R. 806.
(2) A.I.R. 1954 S.C. 636.
533 clauses for the purpose 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.
In this Court some discussion took place as
to the meaning of the words "subject to the provisions of thein cl. (1) of
Art. 194. These words can, in my view, only refer to the provisions of the
Constitution laying down the procedureto be observed in the House for otherwise
cls. (1) and (2) will conflict with each other. I will now make a digression
and state that learned advocate for the Assembly pointed out that in Art. 194
the Constitution makers treated the liberty of speech of a member differently
by expressly providing for it in cls. (1) and (2) and by providing for other
privileges that is, privileges other than that of the freedom of speech -in the
House, in cl. (3). He said that the reason was that if the freedom of speech in
the House was conferred by cl.
(3) it would be controlled by law made by the
legislature and then the party in power might conceivably destroy that freedom.
The intention was that the freedom of speech in the House should be guaranteed
by the Constitution itself so as to be beyond the reach of any impairment by
any law made by the legislature. I think that is the only reason why that
freedom was treated separately in the Constitution in cls. (1) and (2) of Art.
194. Therefore those clauses have nothing to do with the case in hand. Nor had
they anything to do with the decision in Sharma's case. 'Me result is that in
my judgment Sharma's case covers the present case and cannot be distinguished
from it.
For the reasons earlier stated I come to the
conclusion that when there is a conflict between a privilege conferred on a
House by the second part of Art. 194(3) and a fundamental right, that conflict
has to be resolved by harmonising the two provisions. It would be wrong to say
that the fundamental right must have precedence over the privilege simply
because it is a fundamental right or for any other reason. In the present case
the conflict is between the privilege of the House to commit a person for contempt
without that committal being liable to be examined by a court of law and the
personal liberty of a citizen guaranteed by Art.
21 and the right to move the courts in
enforcement of that right under Art. 32 or Art. 226. If the right to move the
courts in enforcement of the fundamental right is given precedence, the
privilege which provide,% 534 that if a House commits a person by a general
warrant that committal would not be reviewed by courts of law, will lose all
its effect and it would be as if that privilege had not been granted to a House
by the second part of Art. 194(3).
This, in my view, ,cannot be. That being so,
it would follow that when a House commits a person for contempt by a general
warrant that person would have no right to approach the courts nor can the
courts sit in judgment over such order of committal. It is not my intention to
state that there may not be exceptions to the rule but I do 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(1). 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
the validity of a committal for contempt where the facts displayed in the
return could by no reasonable interpretation be considered as a contempt".
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.
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'ble Shri
Justice G. D. Sahgal, to entertain and deal with the petition of Shri 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 Shri Keshav Singh
on bail pending the disposal of his said petit ion.
This question should, in my opinion, be
answered in the affirmative. The Lucknow Bench was certainly competent to deal
with ,habeas corpus petitions generally. The only point raised by the Assembly
is that it has no jurisdiction to deal with such petitions when the detention
complained of is under a general warrant issued by the Speaker. But the Lucknow
Bench had to find out whether the detention of Keshav Singh was by such a
warrant before it could throw out the petition on the ground of want of
jurisdiction. The petition did not show that the detention was under a general
warrant. That would have appeared when the Speaker of the Assembly and the
jailor who were respondents to the petition made (1) (1811) 14 East I. 152: 104
E.R. 501.
535 their return. That stage had not come
when the Lucknow Bench dealt with the petition and made orders on it. Till the
Lucknow Bench was apprised of the fact that the detention complained of was
under a general warrant, it had full competence to deal with the petition and
make orders on it. It was said that the order for bail was illegal because in
law release on bail is not permitted when imprisonment is for contempt. I do
not think this is a fit occasion for deciding that question of law for even if
the order for bail was not justifiable in law that would not otherwise affect
the competence of the Bench to make the order. I do not suppose this reference
was intended to seek an answer on the question whether in a habeas corpus
petition where the imprisonment is for contempt, the law permits a release on
bail..
Question No. 2.-Whether, on the facts and circumstances
of the case, Shri Keshav Singh by causing the petition to be presented on his
behalf to the High Court of Uttar Pradesh as aforesaid, Shri B. Solomon,
Advocate, by presenting the said petition and the said two Hon'ble Judges by
entertaining and dealing with the said petition and ordering the release of Shri
Keshav Singh on bail pending disposal of the said petition committed contempt
of the Legislative Assembly of Uttar Pradesh.
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.
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 persons 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.
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,
Sup.C.I./65-9 536 Advocate, before it in custody or to call for their
explanation for its contempt;
It will be remembered that, according to the
recitals, the resolution of March 21, 1964 which directed the production of the
Hon'ble Judges in custody stated that they had committed contempt of the House
by what they respectively did in connection with Keshav Singh's petition of
March 19, 1964 and that the Assembly disputes that the resolution so provided.
We have however to answer the question on the facts as stated in the order of
reference and have no concern with what may be the correct facts. For one
thing, it would not be competent for the Assembly to find the Hon'ble Judges
and B. Solomon to be guilty of contempt without giving them a hearing.
Secondly, in the present case I have already shown that they were not so
guilty.
That being so, it was not competent for the
Assembly to direct their production in custody. It has to be noticed that in
the present case the Assembly had directed the production of the Hon'ble Judges
not for the purpose of hearing them on the question of contempt but on the
basis that they had committed a contempt. It is unnecessary, therefore, to
discuss the question of the privilege of the House to "cause persons to be
brought in custody to the Bar to answer charges of contempt". See May p.
94.
Furthermore, the Assembly had modified its
resolution to have the Judges, Solomon and Keshav Singh brought under custody
and asked only for explanation from the Hon'ble Judges and B. Solomon for their
conduct. Therefore, strictly speaking, the question as to bringing them in
custody before the House does not arise on the facts of the case.
As to the competence of the Assembly to ask
for explanation from the two Judges and B. Solomon, I think it had. That is one
of the privileges of the House. As it has power to commit for contempt, it must
have power to ascertain facts concerning contempt.
Question No. 4.-Whether, on the facts and circumstances
of the case, it was competent for the Full Bench of the High Court of Uttar
Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges
and Shri B. Solomon, Advocate and to pass interim orders restraining the
Speaker of the Legislative Assembly of Uttar Pradesh and other Respondents to
the said petitions from implementing the aforesaid direction of the said
Legislative Assembly;
I would answer the question in the
affirmative. The Full Bench had before it petitions by the two Judges and B.
Solomon 537 complaining of the resolution of
the Assembly finding them guilty of contempt. I have earlier stated that on the
facts of this case, they cannot be said to have been so guilty.
It would follow that the Full Bench had the
power to pass the interim orders that it did.
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.
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 hag to be answered on the facts of this case. On those facts the
question has to be answered in the negative.
I propose now to refer to an aspect of the
case on which a great deal of arguments had been addressed at the bar. That
concerns the liability of a Judge for contempt. If I am right in what I have
said earlier, a judge has no jurisdiction to interfere with a commitment by a
House under a general warrant. If he makes an order which interferes with such
a commitment, his action would be without jurisdiction. It would then be a
nullity. Any officer executing that order would be interfering with the
committal by the House and such interference would be illegal because the order
is without jurisdiction and hence a nullity. If the House proceeded against him
in contempt, a Court of Law could not, in any event, have given him any relief
based on that order. It may be that the Judge by making such an order would be
committing contempt of the House for by it he would be interfering with the
order of the House illegally and wholly without jurisdiction. The question
however to which I wish now to refer is whether the judge, assuming that he has
committed contempt, can be made liable for it by the House. In other words, the
question is-, has the Judge immunity against action by the House for contempt
committed by him ? If his order was legal, then, of course, he would not have
committed contempt and question of immunity for him would not arise.
538 It was said on behalf of the High Court
that even assuming that a Judge can commit contempt of a House, he has fully
immunity. This was put first on the scheme of the Constitution which, it was
said, favoured complete judicial independence. It was next pointed out that
under our Constitution Judges cannot be removed from office except by the
process of impeachment under Art. 124(4), that is, by the order of the
President upon an address by each House of Parliament supported by a certain
majority. Reliance was then placed on Art. 211 of the Constitution which
prohibits discussion in the Legislature of the conduct of a Judge in the
discharge of his duties and it was said that this indicated that a Judge cannot
be liable for contempt, because to make him so liable his conduct has to be
discussed. It was however conceded that Art. 211 did not give an enforceable
right in view of Art. 194(2) but it was said to indicate the intention of the
Constitution-makers that a Judge is to be immune from liability for contempt of
the Assembly.
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.
As regards the argument based on the irrevocability
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 depend on the
sweet-will of the Central Parliament and relief would be unlikely to be
obtained particularly when the parties in power in the State and. the Centre,
were as might happen, different. The irremovability of the Judges was not, it
was said, intended to protect their deliberate wrongful act but only to secure
their independence against illegal interference from powerful influences. It
was argued that the immunity of a Judge would also put the officers of the
court who would be bound to 539 execute all his orders, in a helpless and
precarious condition, for they have to carry out even illegal orders of the
Judges and thereby expose themselves to the risk of punishment legitimately
imposed by an Assembly. It was lastly said that if independence of the Judges
was necessary for the good of the country, so was the independence of the
Legislatures.
In regard to Art. 211, it was observed that
it did not at all indicate an intention that the Judges would not be liable for
contempt committed by themselves. Its main object, it was contended, was to
permit the freedom of speech guaranteed by Art. 194(1) to be restrained in a
certain manner. Furthermore, it was pointed out that Art.
211 would not bar a discussion unless it was
first decided that that discussion related to the conduct of a Judge in the
discharge of his duties, a decision which would often be difficult to make and
in any case the decision of the House would not be open to question in a court
of law, for it is one of the privileges of the House of Commons which a State
Legislature has obtained under Art. 194(3) that it has absolute control of its
internal proceedings: (see Bradlaugh v. Gosset). On all these grounds it was
contended that our Constitution did not confer any immunity on a Judge for an
admitted contempt committed by him. It was pointed out that in England judicial
officers, including Judges of superior courts, did not have that immunity and
reference was made to Jay v. Topham(1) and case of Brass Crossby(2).
I am not sure that I have set out all the
arguments on this question but what I have said will give a fair idea of the
competing contentions. For the purpose of this case, I do not think it
necessary to go into the merits of those contentions. The questions that arise
on the facts of the reference can, in my view, be answered without pronouncing
on the question of immunity of Judges. It is often much better that theoretical
disputes should be allowed to lie buried in learned tracts and not be permitted
to soil our daily lives. It would not require much strain to avoid in practice
circumstances which give rise to those disputes.
In England they have done soand 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.
(1) 12 Howell's State Trials 82 1.
(2) 19 Howell's State Trials 1138.
540 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 not for the President to consider amendments of the
Constitution and that it was not the object of Art. 143 that this Court should
be consulted for the purpose of initiating legislation. I am unable to say that
Mr. Verma's contention is wholly unfounded but I do not propose to express an
opinion on that question in the present case.
Before I conclude, I must say that I feel
extremely unhappy that the circumstances should have taken the turn that they
did and that the reference to this Court by the President should have been
rendered necessary. With a little more tact, restraint and consideration for
others. the situation that has arisen could have been avoided. I feel no doubt
that Beg and Sahgal JJ. would have dismissed the petition of March 19, 1964
after they had possession of the full facts.
I regret that instead of showing that
restraint which the occasion called for, particularly as the order of
imprisonment challenged was expressly stated to have been passed by a body of
the stature of the Assembly for contempt shown to it, a precipitate action was taken.
No doubt there was not much time for waiting but Keshav Singh could not force
the hands of the Court by coming at the last moment.
The result of the order of the Hon'ble Judges
was no interfere with a perfectly legitimate action of the Assembly in, a case
where interference was not justifiable and was certainly avoidable. On the
other hand, the Assembly could have also avoided the crisis by practising
restraint and not starting proceedings against the Judges at once. It might
have kept in mind that the Judges had difficult duties to perform, that often
they had to act on imperfect materials, and errors were, therefore, possible.
It could have realised that when it placed the facts before the Judges, its
point of view would have been appreciated and appropriate orders 541 made to
undo what had been done in the absence of full materials. Such an action of the
Assembly would have enhanced its stature and prestige and helped a harmonious
working of the different organs of the State.
I wish to add that I am not one of those who
feel that a Legislative Assembly cannot be trusted with an absolute power of
committing for contempt. The Legislatures have by the Constitution been
expressly entrusted with much more important things. During the fourteen years that
the Constitution has been in operation, the Legislatures have not done anything
to justify the view that they do not deserve to be trusted with power. I would
point out that though Art. 211 is not enforceable, the Legislatures have shown
an admirable spirit of restraint and have not even once in all these years
discussed the conduct of Judges. 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 modem 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.
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