3164.pdf - Supreme Court of India

http://JUDIS.NIC.IN SUPREME COURT OF INDIA of 101

PETITIONER:SPECIAL REFERENCE NO. 1 OF 1964

Vs.

RESPONDENT:

DATE OF JUDGMENT:30/09/1964

BENCH:GAJENDRAGADKAR, P.B. (CJ)BENCH: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, whethermust relate to matters pertaining to President’s powers andduties under the Constitution-Refusal to answer whenjustifiable.Constitution of India, Art. 194(3)-Privileges of House ofCommons conferred on Indian State Legislatures-Power tocommit for contempt by conclusive general warrant whetherone of such privileges---Privileges whether subject toprovisions of the Constitution and to fundamental rights-Power to determine scope of privileges whether restsentirely with legislatures to the exclusion of the Courts.Constitution of India, Arts. 32, 226-Power of Supreme Courtand High Courts to entertain petitions challenging legalityof committals for contempt by State Legislatures-Power tointerfere where breach of fundamental rights alleged.Constitution of India, Art. 211-Whether directory ormandatory-Its impact on Art.194(3).

HEADNOTE:


The Legislative Assembly of the State of Uttar Pradeshcommitted one Keshav Singh,who was not one of its members,to prison for its contempt. The warrant of committal didnot contain the facts constituting the alleged contempt.While undergoing imprisonment for the committal, KeshavSingh through his Advocate moved a petition under Art. 226of the Constitution and s. 491 of the Code of Criminal Pro-cedure, challenging his committal as being in breach of bigfundamental rights; he also prayed for interim bail. TheHigh Court (Lucknow Bench) gave notice to the GovernmentCounsel who accepted it on behalf of all the respondentsincluding the Legislative Assembly. At the time fixed forthe hearing of the bail application the Government Counseldid not appear. Beg and Saghal JJ. who heard theapplication ordered that Keshav Singh be released on bailpending the decision of his petition under Art. 226. TheLegislative Assembly found that Keshav Singh and hisAdvocate in moving the High Court, and the two Judges of theHigh Court in entertaining the petition and granting bailhad committed contempt of the Assembly, and passed aresolution that all of them be produced before it incustody. The Judges and the Advocate thereupon filed writpetitions before the High Court at Allahabad and a FullBench of the High Court admitted their petitions and orderedthe stay of the execution of the Assembly’s resolutionagainst them. The Assembly then passed a clarificatoryresolution which modified its earlier stand. Instead ofbeing produced in custody, the Judges and the Advocate wereasked to appear before the House and offer theirexplanation.At this stage the President of India made a Reference underArt. 143(1) of the Constitution in which the whole disputeas to the constitutional relationship between the High Courtand the State Legislative including the question whether onthe facts of the case Keshav Singh414his Advocate, and the two Judges, by their respective acts,were guilt of contempt of the State Legislature, wasreferred,., to the Supreme Court for its opinion and report.At the hearing of the Reference a preliminary objection asto the competency of the Reference was raised on behalf ofthe Advocate General of Bihar, on the ground that it did notrelate to any, of the matters covered by the President’spowers and duties under the Constitution. -It was alsourged, that even if the Reference was competent, the Court.should not answer it as it not obliged "to do so, and theanswers given by,it would not help) the President in solvingany of the difficulties with -which’ he might be faced indischarging his duties. The Court did not’ accept thesecontentions and proceeded to hear the parties-whichfell,broadly,into two groups-those supporting the Assemblyand those supporting -the High Court.On behalf of,the,Assembly it was-urged that by 194(3) ofthe Constitution all the power and immunities of the Houseof Commons of the United Kingdom on,. it. It. was I thesole judge ’of its privileges and the Courts had nojurisdiction to interfere with their exercise. In thealternative , it was contended that Courts in England neverinterfered virtue of Art. privileges with a committal by theHouse of Commons for contempt when the committal was by ageneral warrant, I.e., a warrant which did not state thefacts constituting the contempt, and, therefore Courts inIndia were also precluded from examining the legality of thegeneral warrants of, the State Legislatures. Theproceedings in the High Court in the present case were,


therefore, in contempt of the legislature.Those supporting the stand taken by the High Court urgedthat the Legislature received the powers of the House ofCommons subject to provisions of the Constitution and to thefundamental rights, that the power to commit by generalwarrant was not one of the privileges of the House ofCommons, that by virtue of Articles 226 and 32, "the citizen-had the right to move the Courts when his fundamentalrights were contravened, and that because of the provisionsin Art. 211, the Legislature was precluded from taking anyaction 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 theyrequire is that the President should be satisfied that thequestions to be referred are’ of such a nature and of suchpublic imp that it would be expedient to obtain the -SupremeCourt opinion on them. The President’s order making thepresent Reference showed that he was so satisfied, andtherefore the Reference was competent. The argument that aReference "under Art. 143(1) could only be on mattersdirectly ’related to the President’s powers and duties underthe 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 thebroad 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. 250and In re: Sea Customs Act, [1964] 3S.C.R. 787, referred to.It is not obligatory on the Supreme Court to answer aReference under Art. 143(1)-the word used in that Articlebeing ’may, in contrast to the word ’shall’ used in Art.143(2). Refusal to make a report 415answering the questions referred would however be justifiedonly for sufficient and satisfactory reasons e.g., thequestions referred being of a purely socio-economic orpolitical character with no constitutional significance atall. The present Reference raised questions of graveconstitutional importance and the answers given by the Courtcould help the President to advise the Union and StateGovernments to take suitable legislative or executive action1 It was therefore the duty of; the court to answer it. [434B-D; 433 G-H].The advisory opinion rendered by the Court in the presentReference proceedings was not adjudication properly so-called, and would bind no parties as such. [446 H; 447 A].(ii) The - State Legislatures in India. could not by virtueof Art. 194(3) claim to be the sole of their powers andprivileges to the exclusion of the courts. Their powers andprivileges were to be found in Art. 194(3) alone and nowhereelse, and the power to interpret that Article lay under thescheme of the Indian Constitution, exclusively with theJudiciary of this country. (Scheme of the Constitution dis-cussed). [444 G-H; 446 G-H"It was not the intention of the Constitution to perpetuatein India the ’dualism’ that rudely disturbed public life inEngland during the 16th, 17th and 18th centuries. TheConstitution-makers were aware of the several unhappysituations that arose there as a result of the conflictbetween the Judicature and the Houses of Parliament, and theprovisions of Arts. 226, 32, 208, 212(1) and 211 (examinedby the Court) showed that the intention was’ to avoid such aconflict in this country. [454 A-B; 455 C-E].


Article 211 which provides that the Legislatures could notdiscuss the conduct of the Judge in the discharge of hisduties, 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 expresslysubject to the provisions of the Constitution, it would beunreasonable in construing it to ignore the otherprovisions, if for valid reasons they were found to berelevant and applicable. Therefore wherever it appearedthat there was a conflict between the provisions of Art.194(3) and the provisions relating to fundamental rights, anattempt had to be made to resolve the said conflict by theadoption of the rule of harmonious construction as was donein 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, interms, that Art. 21 was applicable to the contents of Art.194(3) though Art. 19(1) was not. The minority view wasthat Art. 194(3) was subject to all the fundamental rights.[451 B-C].The majority in Sharma’s case cannot be said to have heldthat Art. 194(3) was independent of all the fundamentalrights for the simple reason that it was held that Art. 21was applicable, although on the facts of the case itsprovisions were found not to have been contravened. Thepetitioner in that case had not raised at all the generalissue as to the applicability and relevance to Art. 194(3)of all the fundamental rights in Part 111, and therefore itwas unnecessary for the Court to discuss and decide thatgeneral issue. His claim was based on the applic-416ability of two Articles only i.e., Articles 21 and 19(1)(a). The Court A held that the former was applicable andthe latter was not. This must therefore be taken to havebeen settled in Sharma’s case. [451 C-F].But Sharma’s case cannot be said to have settled the issuewhether Art. 22(2) was applicable to Art. 194(3) or not.[Observations of the majority therein as to the correctnessof the decision in Freddy’s case which was decided on thebasis 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 definingthe powers and privileges of the legislatures under thefirst part of Art. 194(3) would be subject to Art. 13 andtherefore to the fundamental rights, did not requirereconsideration. [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 StateLegislatures to define by law their own powers, privilegesand immunities. The second part of the Article says thattill they define their powers etc. in the above manner,their powers, privileges and immunities will be those of theBritish House of Commons. The second part was obviously in-tended to confer for the interim period till laws were madeunder the first part, those incidental privileges andimmunities which every Legislature must possess in orderthat it may be able to function effectively. [442 C-E].


The powers of the House of Commons conferred by this clauseare those which were still in existence at the commencementof the Constitution i.e., 26th January, 1950 and not thosewhich had fallen into desuetude or the claim in respect ofwhich had been given up. Further, only those powers can bedeemed to have been conferred which were not only claimed bythe House of Commons but also recognised by the BritishCourts. [442 F-H].(vii) The claim that all the powers of the British Houseof Commons became vested in the Indian Legislatures byvirtue of Art. 194(3) cannot be accepted in its entirety forthere are many powers of the House of Commons-such as rightof access to the sovereign, passing acts of attainder,impeachment, determining its own Constitution etc.whichcannot 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 StateLegislatures the right to commit for contempt by a generalwarrant which could not be examined for its validity bycourts in habeas corpus proceedings. The right claimed bythe House of Commons not to have its general warrantsexamined in habeas corpus proceedings, was-based on the con-sideration that the House of Commons was in the position ofa superior court of record and had the right like othersuperior courts of record to issue a general warrant for thecommitment of persons found guilty of contempt. There was aconvention in England whereby the general warrantscommitting for contempt issued by a superior court of recordwere not examined by other courts. It was on that groundand not on the F ground of privilege that the generalwarrants issued by the House of Commons were treated asbeyond scrutiny by the courts. [482 B-D 496 F]. 417May’s Parliamentary Practice, 16th Edn. relied on.Ashby v. White, L.J. (1701-05) 714, Earl of Shaftesbury’scase, 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 andOthers, 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, 113E.R. 119 and Howard v. Gossett, 116 E.R. 139, discussed andrelied on.Bradlaugh v. Gossett, L.R. XII Q.B.D. 271, held notapplicable.Speaker of the Legislative Assembly of Victoria v. HughGlass, (1869-71) III L.R., P.C. 560, Fielding and Others v.Thomas, 1896, R., A.C., 600, The Queen v. Richards, 92C.L.R. 157 and Dill v. (1864) 1 Moo. P.C. (N.S.) 487 (15E.R. 784), not followed.Observations of Gwyer C.J., in Central Provinces and BerarAct No. XIV of 1938 [1939] F.C.R. 18 to the effect thatdecisions in respect of other Constitutions could not besafely applied even when the Provisions interpreted aresimilar, 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 acommitment for contempt by a superior court of record, thecourt exercising its jurisdiction over a petition filed forhabeas corpus would be competent to consider the legality ofthe said contempt notwithstanding the fact that the warrantfor commitment was general or unspeaking.The Indian State Legislatures were not at any time in theirhistory, either under the Constitution Act. 1935, or under


the Indian Independence Act, 1947, intended to be courts ofrecord. The legal fiction in Art. 194(3) could not transferthe history of England to India and confer on the IndianState Legislatures the status of superior courts of record.Thus the very basis on which the English Courts agreed totreat a general warrant issued by the House of Commons onthe footing that it was a warrant issued by a superior courtof record, was absent in their case, and so, it would beunreasonable to contend that the relevant power to claim aconclusive character for the general warrant which the Houseof Common-,, by agreement, was deemed to possess, becamevested in the Indian Legislatures. On this view of thematter the claim made by the Uttar Pradesh Assembly had tobe rejected. [492 A-B].(ix) Even if the power to commit by non-examinable generalwarrant were treated as forming an integral part of theprivileges of the House of Commons it would not follow thatthe Indian State Legislatures could exercise that powerby 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 toapproach the High Court or the Supreme Court for theprotection of his fundamental rights. (The present disputewas really between a citizen and the Legislature and notone between the High Court and the Legislature). [494 A-B].If a citizen moved this court and complained that hisfundamental right under Art. 21 [held to be applicable toArt. 194(3) in Sharma’s case] or any other applicable right,bad been contravened, it would plainly be the duty of thisCourt to examine the merits of the said contention. Itwould be no answer in such a case to say that the warrantissued against the citizen was a general warrant and ageneral warrant must stop all further judicial enquiry andscrutiny. The impact of the418fundamental right conferred on Indian citizen by Art. 32 onthe construction of the latter part of Art. 194(3) wasdecisively against the view that a power or privilege couldbe claimed by the House though it may be inconsistent withArt. 21. In this connection it was relevant to recall thatthe rules for regulating the procedure of the House weresubject to the provision of the Constitution under Art.208(1). [493 D-E].Observations of Simonds J., in In re : ParliamentaryPrivileges Act, 1770, [1958] A.C. 331 and Resolution of theHouse of Lords, C.J. 1702-04, pp. 555, 560, (Cited in May16th Edn. p. 47), referred to.It would be strange if the House which was incompetentbecause of Art. 21 1 to discuss the conduct of a Judge inthe discharge of his duties, should have the power to summonhim in custody for alleged contempt committed in dischargeof his duties. If the claim of the House were upheld itwould mean that the House could issue a general warrantagainst a Judge and no judicial,scrutiny,could be held inrespect of the validity of such a warrant. This would Putthe basic concept of judicial independence into gravejeopardy. [493 E-H].It ’was also’ doubtful whether the power to issue a generalup-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 allAdvocates, the statutory right to practice in all courts,including the Supreme Court, before any Tribunal or personlegally authorised to take evidence, and before any otherauthority 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 similarright. Just as the rights of the Judicature to deal withmatters before them under Art. 226 or Art. 32 cannot besubjected to the powers and privileges of the House underArt. 194(3), so the rights of the citizen to move theJudicature and the right of the Advocates to assist thatprocess must remain uncontrolled by Art. 194(3). That isone integrated scheme for protecting the fundamental rightsand for sustaining the rule of law in this country.Therefore the right to commit by a conclusive generalwarrant which the State Assembly claimed to be an integralpart of its powers or privileges was inconsistent with thematerial provisions of the Constitution and could not bedeemed to have been included under the latter part of Art.194(3). [495 E-H].The power to commit by general warrant was moreover notessential for the effective functioning of a House ofLegislature. The American Congress had been functioningeffectively without such power. [497 B-E].In India, there are 14 State Legislatures in addition to theHouses of Parliament. If the power claimed by the U.P.Assembly were conceded it is not difficult to imagine thatits exercise may lead to anomalous situations as when amember of one Legislature is committed for contempt by ageneral warrant issued by another Legislature on account -ofa 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 commitmentwas based on. the order passed by the House, and in thatsense the House was responsible for, and had control overhis commitment. [496 B-C].The King v. The Earl of Crewe Ex parte Sekgome. [1910] 2K.B.D. 576 and The King v. Secretary of State for HomeAffairs Ex parte O’brien, [1923] 2 K.B.D. 361, referred to.419(xi) Although in England parties who stand committed forcontempt by the house of Commons are not admitted to bail bycourts, the position in India is different. If Art. 226confers jurisdiction on the court to deal with the validityof the order of commitment even though the commitment hasbeen ordered by the House, it follows that the court hasjurisdiction 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, 11thEdn. p. 350, relied on.Lala Jairam Dav & others and King Emperor, 72 I.A. 120, heldinapplicable.(xii) On the facts of the case the High Court wascompetent to entertain the petition of Keshav Singh and togrant him bail pending, disposal of his petition. There wasno contempt of the U.P. Assembly committed by Keshav Singhor his Advocate in moving the application under Art. 226, orby the High Court in entertaining the said petition andgranting bail. It was not competent for the LegislativeAssembly to direct the production of the two Hon’ble Judgesand the Advocate before it in custody or to call for theirexplanation for their conduct. It was competent for theFull Bench of the Allahabad High Court to entertain and dealwith the petitions -of the said two Hon’ble Judges and ,theAdvocate, and to pass interim orders restraining the Speakerof the U.P. Assembly and other respondents to the saidpetitions from implementing the aforesaid direction of theAssembly. A Judge of a High Court who entertains or deals


with a petition challenging any order or decision of aLegislature imposing any penalty on the petitioner (who isnot a member of the Legislature) or issuing any processagainst the petitioner for its contempt (the allegedcontempt having been committed outside the four-walls of theHouse), or for the infringement of its privileges andimmunities, or who passes any order on such petition, doesnot commit any contempt of the said Legislature, and thesaid Legislature is not competent to take proceedingsagainst such a Judge in the exercise and enforcement of itspowers, privileges and immunities. [502 A; 503 C].(xiii) It is necessary to remember that the status,dignity and importance of the two institutions, theLegislature and the Judicature, are derived primarily fromthe status, dignity and importance of the respective causesthat are assigned to their charge by the Constitution.These two bodies as well as the executive which is anotherimportant constituent of a democratic State, must functionnot in antinomy nor in a spirit of hostility, butrationally, harmoniously and in a spirit of understandingwithin their respective spheres, for such harmonious workingof the ;three constituents of the democratic State alonewill help the peaceful development, growth and stabilizationof 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 withcircumspection. Frequent or indiscriminate use of thispower in anger or irritation would not help to sustain thedignity of the court, but may sometimes affect it adversely.Wise Judges never forget that the best way to sustainthe dignity and stat of their office is to deserverespect from the public at large by them quality oftheir judgments, the fearlessness, fairness and objectivity oftheir approach, and by the restraint, dignity and decorumwhich they observe in their judicial conduct. Weventure to think that what is true of the Judicature isequally true of the Legislature. [501 F-G]..420Observations of Lord Atkin in Andre Paul v. Attorney Generalof Trinidad, A.I.R.1936 P.C. 141, referred to.Per Sarkar J. (i) It is undoubtedly for the Courts tointerpret the Constitution and therefore Art. 194(3). Itfollows that when a question arises in this Country as towhether the House of Commons possessed a particularprivilege at the commencement of the Constitution, thatquestion must be settled, and settled only by the courts oflaw. There is no scope of the dreaded ’dualism’ appearinghere, that is, courts entering into a controversy with aHouse of a Legislature as to what its privileges are. [509A-B].(ii) The words appearing in Art. 194(3) are "the powers,privileges and immunities of a House...... shall be those ofthe House of Commons." One cannot imagine more plainlanguage than this. That language can only have one meaningand that is that it was intended to confer on the Statelegislatures the powers, privileges and immunities which theHouse of Commons in England had. There is no occasion herefor astuteness in denying words their plain meaning byprofessing allegiance to a supposed theory of division ofpowers. [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 ofVictoria 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. 171and Fielding v. Thomas, [1896] A.C. 660, referred to.(iii) The power to commit by a general warrant with theconsequent deprivation of the jurisdiction of -the courtswas, one of the privileges of the House of Commons. Thatprivilege was possessed by the U.P. Assembly by virtue ofArt. 194(3) of the Constitution. [524 C-D].There is no authority to show that the House of Commonspossessed the powers to commit by a general warrant becauseit was a superior court of record. Neither the history ofthe House, nor the judgments in English cases support thatcontention. The courts only treated the House as entitledto the same respect as a superior court. They did not saythat the House was a superior court. [513 B-C, 522 B].May’s Parliamentary Practice, 16th Edn. Potter’s Outlinesof Legal History, (1958 Edn.) Anson’s Law of theConstitution. 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 & E272, 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 generalwarrant possessed by the House of Commons springs from somerule of comity of courts, or of presumptive evidence, orfrom an agreement between courts of law and the House, orlastly, from some concessions made by the former to thelatter. [522 E-F].All privileges of the House of Commons are based on law.That law is known as Lex Parliamenti. That law like anyother law is a law of the land which courts are entitled toadminister. [522 F-G].It is not for us to start new ideas about privileges of theHouse of Commons, ideas which had not ever been imagined inEngland. Researches into the period when these privilegeswere taking shape can afford no answer to their contents andnature in 1950. [523 G-H; 524 B-C].421Writers of undoubted authority as well as certain recentdecisions of the Judicial Committee have treated the powerto commit by a conclusive general warrant as a matter ofprivilege of the House and not as a right possessed by it asa superior court. [515 G-H].May’s Parliamentary Practice, 16th Edn. Cases onConstitutional Law by Keir and Lawson, Halsbury’s Law’s ofEngland, Vol. 28, 467, Dicey’s Constitutional Law, 10thEdn., 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 bebinding on Indian courts but they have high persuasivevalue, unless shown to be wrong. The question is whetherthe House of Commons had a certain privilege. If judicialnotice of the privilege has to be taken, then under s. 57 ofthe Evidence Act, a reference to the authorised law reportsof England would be legitimate, and if the existence of theprivilege has to be decided as a matter of foreign law, thenagain under s. 38 of that Act a reference to these reportswould be justified. And since they contain decisions of oneof the highest courts in England, we are not entitled to saythat what they call a privilege of the House of Commons oftheir country is not a privilege, unless some equally highauthority taking the contrary view is forthcoming. [517 D-F].(v) It cannot be said that the privilege in question can beexercised by the Indian State Legislatures only subject to


the fundamental rights of a citizen guaranteed by theConstitution. In Sharma’s case this court laid down thatthe privileges of the House of Commons which were conferredon the House of a State Legislature by Art. 194(3) takeprecedence over fundamental rights. This decision wascorrect and did not require reconsideration. [524 E-F; 525B-C, F].In re : Delhi Laws Act, 1950, [1951] S.C.R. 747, referredto.It was not held in Sharma’s case that Art. 21 takesprecedence over the privileges in Art. 194(3). Das C.J. nodoubt said that there was no violation of Art. 21 in thatcase because the deprivation of liberty was according toprocedure established by law. But that was only an alter-native reason for he could have held-as he did in the caseof Art. 19(1)(a)-that Art. 21 being a general provision andArt. 194(3) being special, the former must yield to thelatter. [531 E-F; 532 B-E].Another reason for saying that Das C.J. did not hold thatArt 21 took precedence over the privilege to commit by ageneral warrant is the fact that he held that Reddy’s casewas wrongly decided. That case had held that Art. 22 hadprecedence over the privilege of committal. If Art. 22 didnot have precedence, as Das C.J. must have held since he didnot accept the correctness of Reddy’s case, no more could hehave held that Art. 21 would have precedence over theprivilege to commit for contempt. [532 E-F].(vi) The majority in Sharma’s case no doubt said withoutdiscussion that the law under Art. 194(3) would be subjectto 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 fundamentalrights. it cannot be said that since Art. 13 might make lawsmade under cl. (3) of Art. 194 void, the privilegesconferred by the second part must also be void. Article 13has no application to the provisions of the Constitutionitself. It governs only the laws made by a StateLegislature which Art. 194(3) is not. The fact that in cl.(1) of Art. 194 the words422’subject to the provisions of the Constitution’ occur, whilethey are omitted from cl. (3) is a strong indication thatthe latter clause was not intended to be so subject. [528 E-H).(vii) When there is a conflict between a privilegeconferred on a House by the second part of Art. 194(3) and afundamental right that conflict has to be resolved as inSharma’s case by harmonising the two provisions. Harmoniousconstruction means that both the provisions should be givenmaximum effect without one of them wiping out the other. Inthe instant case the conflict was between the privilege ofthe House to commit a person for contempt without thatcommittal being liable to be examined by a court of law, andthe personal liberty of a citizen guaranteed by Art. 21 andthe right to move the courts in enforcement of that rightunder Art. 32 or Art. 226. If the right to move the courtsin enforcement of the fundamental right is given precedence,the privilege which provides that if a House commits aperson by a general warrant that committal would not bereviewed by courts of law, will lose all its effect and itwould be as if the privilege had not been granted to a Houseby the second part of Art. 194(3). This was not harmoniousconstruction. That-being so, it would follow that when aHouse commits a person for contempt by a general warrantthat 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 factthat the detention of Keshav Singh was under a generalwarrant, and till so apprised it had full competence to dealwith the petition under Art. 226. It was not necessary inthe present reference to decide the question whether in ahabeas corpus petition where the commitment is for contemptthe law permits release on bail, because the Reference wasnot meant to seek an answer to that question. No contemptwas committed by the Hon’ble Judges or B. Solomon or KeshavSingh for the respective parts taken by them in connectionwith the petition as it did not appear that any of thosepersons knew that the commitment was under a generalwarrant. Since they were not guilty, it was not competentfor the Assembly to order their production in custody.Strictly speaking, the question as to bringing them incustody before the House did not arise on the factsof the case as the Assembly had modified its resolution inthat regard. The Assembly was competent to ask forexplanation from the two Judges and B. Solomon. As it hadpower to cormorant for contempt it necessarily had power toascertain facts concerning the contempt. The Full Bench wascompetent to entertain the petition of the two Judges and B.Solomon Advocate if on the facts of the case they could notbe said to be guilty. It would follow that the Full Benchhad the power to pass the interim orders it did. On thefacts of the case, a Judge of a High Court who entertains ordeals with a petition challenging any order or decision of aLegislature imposing any penalty on the petitioner orissuing any process against the petitioner for its contemptor for infringement of its privileges and immunities or whopasses I any order on such a petition does not commitcontempt of the said Legislature, and the said Legislatureis not competent to take proceedings against such a Judge inthe exercise and enforcement of its powers, privileges andimmunities. [534 D; 537 D].(ix) During the fourteen years that the Constitution hasbeen in operation, the Legislatures have not done anythingto justify the view that they do not deserve to be trustedwith power. Though Art. 211 is423not enforceable the Legislatures have shown an admirablespirit of restraint and have not even once in all theseyears discussed the conduct of Judges. We must not losefaith in our people, must not think that the LegislaturesWould misuse the powers given to them by the Constitution orthat safety lay in judicial correction. Such correction maydo more harm than good. In a modern State it is oftennecessary for the good of the country that parallel powersshoul exist in different authorities. It is not inevitablethat such powers will clash. [541 C-E].

JUDGMENT:Advisory JURISDICTION: Special Reference No. 1 of 1964.Special Reference under Art. 143 of the Constitution ofIndia.C.K. Dhaphtary, Attorney-General, H.N. Sanyal, Solicitor-General, 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. Puriand Suresh Vohra, for Hon’ble the Chief Justice and otherJudges 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 andRameshwar Nath, for Hon’ble Mr. Justice N.U. Beg.N.C. Chatterjee, Asif Ansari, M.K. Ramamurthi, and R.K. Gargfor 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 RavinderNarain, for Hon’ble the Chief Justice, Maharashtra HighCourt.J. M. Thakore, Advocate-General, Gujarat, J. B.Dadachanji,O. C. Mathur and Revinder Jain, for Hon’ble the ChiefJustice, Gujarat High Court.D. Narsaraju, N. R Ramdar, O.P. Malhotra, B. Parthasarthy,J.B. Dadachanji, O.C. Mathur, and Ravinder Narain, forHon’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 ChiefJustice, 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 ChiefJustice, Madhya Pradesh High Court.D.P. Singh, S. Balkrishnan, Shanti Bhatnagar and Lai NarainSingh, for Hon’ble the Chief Justice, Patna High Court.Sup.C.1.165-2424A.C. Mitra and D.N. Mukherjee, for Hon’ble Speker, WestBengal Legislative Assembly.S. S. Sanyal, S. K. Acharyya and D. N. Mukheriee, forHon’ble Chairman, W.B.L.C.H.M. Seervai, Advocate-General, Maharashtra, T.R. Anand-yarujina, R.A. Gagrat and V.J. Merchant, for Hon’ble theSpeaker/Chairman Maharashtra L.A. & L.C.G.N. loshi, Atiqur Rehman and K.L. Hathi, for Hon’ble theSpeaker, 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, forHon’ble the Speaker, Assam Legislative Assembly.D.M. Sen, Advocate-General, Nagaland and Naunit Lal, forNagaland Legislative Assembly.B.P. Jha, for Hon’ble the Chairman, Bihar LegislativeCouncil 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 forthe State of U.P.M. Adhikari, Advocate-General, Madhya Pradesh and I.N.Shroff, for the Advocate-General for the State of MadhyaPradesh.N. Krishnaswamy Reddy, Advocate-General, Madras, V.Ramaswamy and A.V. Rangam, for the Advocate-General forState of Madras.B.V. Subrahamanyam, Advocate-General, State of AndhraPradesh, M. Jaganadha Rao and T.V.R. Tatachari, for theAdvocate-General for the State of Andhra Pradesh.B. Sen, S.C. Bose and P.K. Bose, for the Advocate-Generalfor 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 ofIndia.M. K. Nambyar, Chaudhury Hyder Hussain, B. K. Dhawan,Bishun Singh, Shiv Sastri and S. S. Shukla, for Oudh BarAssociation.425R. Jethmalni, P.K. Kapila and A. K. Nag, for Western IndiaAdvocates 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 ofIndia (Intervener).R. V. S. Mani, Shaukat Husain, E. C. Agarwala, ShahzadiMohiuddin and O. C. Agarwal, for Applicants-Interveners: (a)Lok Raksha Samaj (Sewak), (b) All India Civil LibertiesCouncil(c) Sapru Law Society.M. K. Rama murthi, R. K. Garg, D. P. Singh and S. C. Agar-wal for Applicant-Intervener Delhi Union of Journalists.K. Rajendra Chaudhury and K. R. Chaudhury, for ApplicantIntervener, Bihar Working Journalists Union.Chinta Subba Rao, for Applicant-Intervener, Institute ofPublic Opinion.GAJENDRAGADKAR C.J. delivered the Opinion on behalf of SUBBARAO, 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 1964by which the President has formulated five questions for theopinion of this Court under Article 143(1) of theConstitution. The Article authorises the President to referto this Court questions of law or fact which appear to himto have arisen or are likely to arise and which are of sucha nature and of such public importance that it is expedientto obtain the opinion of the Supreme Court upon them.Article 143(1) provides that when such questions arereferred to this Court by the President, the Court may,after such hearing as it thinks fit, report to the Presidentits opinion thereon. In his Order of Reference made onMarch 26, 1964, the President has expressed his conclusionthat the questions of law set out in the Order of Referenceare of such a nature and of such public importance that itis expedient that the opinion of the Supreme Court of Indiashould be obtained thereon.It appears that on March 14, 1964, the Speaker of theLegislative Assembly of Uttar Pradesh administered, in thename of and under the orders of the Legislative Assembly(hereinafter referred to as "the House"), a reprimand toKeshav Singh, who is a resident of Gorakhpur, for havingcommitted contempt of the House and also for havingcommitted a breach of the privileges of Narsingh NarainPandey, a member of the House. The contempt and426the breach of privileges in question arose because, of apamphlet which was printed and published and which bore thesignature of Keshav Singh along with the signatures of otherpersons. In pursuance of the decision taken by the Houselater on the same, day, the Speaker directed that KeshavSingh be committed to prison for committing another contemptof the House by his conduct in the House when he wassummoned to receive the aforesaid reprimand and for writinga disrespectful fetter to the Speaker of the House earlier.According to this order, a warrant was issued over thesignature of the Speaker of the House, Mr. Verma, directingthat 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 practisingbefore the Lucknow Bench of the Allahabad High Court,presented a petition to the High Court on behalf of KeshavSingh under section 491 of the Code of Criminal Procedure,1898, as well as under Article 226 of the Constitution. Tothis petition were implemented the speaker of the House, theHouse, the Chief Minister of Uttar Pradesh and theSuperintendent of the District Jail, Lucknow, where KeshavSingh was serving the sentence of improvement imposed on himby the House, as respondents 1 to 4 respectively. Thepetition thus presented on behalf of Keshav Singh allegedthat his detention in jail was illegal on several grounds.According to the petition, Keshav Singh had been ordered tobe imprisoned after the reprimand had been administered tohim, and that made the order of imprisonment illegal andwithout authority. ’Me petition further alleged that KeshavSingh had not been given an opportunity to defend himselfand that his detention was mala fide and was against theprinciples of natural justice. It was also his case thatrespondents 1 to 3 had no authority to send him to theDistrict Jail, Lucknow, and that made his detention in jailillegal.After the said petition was filed before the Lucknow Benchof the Allahabad High Court, the learned Advocates for boththe parties appeared before Beg and Sahgal JJ. at 2 P.m. andagreed that the petition should be taken up At 3 P.M. thesame day. Mr. Solomon represented keshav Singh and Mr. K.N. Kapur, Assistant Government Advocate, appeared for allthe respondents. Accordingly, the petition was taken upbefore the Court at 3 P.m. On this occasion, Mr. Solomonappeared for the petitioner but Mr. Kapur did not appear inCourt. The Court then passed an Order that the applicantshould be released on bail427on furnishing two sureties in a sum of Rs. 1,000 each and apersonal bond in the like amount to the satisfaction of theDistrict Magistrate, Lucknow. The Deputy Registrar of theCourt was asked to take necessary action in connection withthe Order. The Court also directed that the applicant shallremain present in Court at every hearing of the case infuture. Thus, the petition was admitted and notice wasordered to be issued to the respondents with the additionaldirection that the case should be set down for hearing asearly 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. JudicialDepartment, Lucknow, giving him information about the Orderpassed by the High Court on Keshav Singh’s application. Inthis communication, Mr. Shri Rama has stated that after thematter was mentioned to the Court at 2 P.m. it was adjournedto 3 P.m. at the request of the parties; soon thereafter Mr.Kapur contacted Mr. Nigam on the phone, but while theconversation was going on, the Court took up the matter at 3P.m. and passed the Order directing the release of KeshavSingh on terms and conditions which have already beenmentioned. Mr. Shri Rama sent to Mr. Nigam three copies ofthe application made by Keshav Singh and suggested thatarrangement should be made for making an appropriateaffidavit of the persons concerned. He also told Mr. Nigamthat the application was likely to be listed for hearing ata very early date.Instead of complying with the request made by the GovernmentAdvocate and instructing him to file a return in theapplication made by Keshav Sin , the House proceeded to take


action against the two learned Judes why passed the order onKeshav Singh’s application, as well as Keshav Singh and hisAdvocate, on March 21, 1964. It appears that two Members ofthe House brought to the notice of the Speaker of the Houseon the 20th March what had happened before the Court inregard to the application made by Keshav Singh. Takingnotice of the order passed by the High Court on KeshavSingh’s petition, the House proceeded to pass a resolutionon March 21, 1964. This resolution said that the. HouseWas of the denote view at M/s. G. D. Sahgal, N. U. Beg.Keshav Singh and P. Solomon had committed contempt of theHouse and therefore, it was ordered that Keshav Singh Shouldimmediately be taken into custody and kept confined in theDistrict Jail, Lucknow, for the remaining term of his impri-sonment and M/s. N. U. Beg, D. Sahgal and B. Solomon should428be brought in custody before the House. The resolutionfurther added that after Keshav Singh completed the term ofhis imprisonment, he should be brought before the House forhaving again committed contempt of the House on March 19,1964.The two learned Judges heard about this resolution on theradio on the evening of March 21, and read about it in themorning edition of the Northern India Patrika published onMarch 22, 1964. That is why they rushed to the AllahabadHigh Court with separate petitions under Art. 226 of theConstitution. petitions alleged that the impugned Resolutionpassed by the House was wholly unconstitutional and violatedthe provisions of Art. 211 of the Constitution. Accordingto the petitions, the application made by Keshav Singh underArt. 226 was competent and in making an order releasingKeshav Singh, the Judges were exercising their jurisdictionand authority as Judges of the High Court under Art. 226.Their contention was that the resolution passed by the Houseamounted to contempt of Court, and since it was whollywithout jurisdiction, it should be set aside and by aninterim order its implementation should be stayed. To thesepetitions were impleaded as respondents Mr. Verma, theSpeaker, Vidhan Sabha, Lucknow, the State of Uttar Pradeshand the Marshal, Vidhan Sabha. These petitions were filedon March 23, 1964.Apprehending that these developments had given rise to avery serious problem, a Full Bench of the Allahabad HighCourt consisting of 28 Judges took up on the same day thepetitions presented before them by their two colleagues atLucknow, directed that the said petitions should be admittedand ordered the issue of notices against the respondentsrestraining the Speaker from issuing the warrant inpursuance of the direction of the House given to him onMarch 21, 1964, and from securing execution of the warrantif 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 learnedAdvocate of Keshav Singh, presented a similar petition tothe High Court under Art. 226. He prayed for a writ ofmandamus on the same lines as the petitions filed by the twolearned Judges, and he urged that suitable order should bepassed against the House, because it had committed contemptof Court. To his petition Mr. Solomon had impleaded sevenrespondents; they were: the Speaker of the House, Mr. Verma:the Legislative Assembly, U.P.; the Marshal of the U.P.Legislative Assembly;429Mr. Saran and Mr. Ahmad, Members of the LegislativeAssembly, 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 28Judges of the Allahabad High Court on March 25, and afteradmitting the petition, an interim order was passedprohibiting the implementation of the resolution thevalidity of which was challenged by the petitioner. At thepreliminary hearing of this petition, notice had been servedon the Senior Standing Counsel who was present in Court. Hestated to the Court that he had no instructions at thatstage to oppose the application. That is why the Courtissued notice of the application and passed what it thoughtwould be appropriate orders.On the same day, the House passed a clarificatoryresolution. This resolution began with the statement that amisgiving was being expressed with regard to the motionpassed by the House in that it could be construed asdepriving the persons concerned of an opportunity ofexplanation, and it added that it was never the intention ofthe House that a charge against a High Court Judge forcommitting breach of privilege or contempt of the House,should be disposed of in a manner different from thatgoverning breach of privilege or contempt committed by anyother person. The House, therefore, resolved that thequestion of contempt may be decided after giving anopportunity of explanation to the persons named in theoriginal resolution of March 20, 1964 according to rules.As a result of this resolution, the warrants issued for thearrest of the two learned Judges and Mr. Solomon were with-drawn, with the result that the two learned Judges and Mr.Solomon were placed under an obligation to appear before theHouse and offer their explanations as to why the Houseshould not proceed against them for their alleged contemptof the House.When the incidents which happened in such quick successionfrom March 19 to March 25, 1964, had reached this stage, thePresident decided to exercise his power to make a referenceto this Court under Art. 143(1) of the Constitution on March26, 1964. The Order of Reference shows that it appeared tothe President that the incidents in question had given riseto a serious conflict between a High Court and a StateLegislature which involved important and complicatedquestions of law regarding the powers and jurisdiction ofthe High Court and its Judges in relation to the StateLegislature and its officers and regarding the430powers, privileges and immunities of the, State Legislatureand its members in relation to the High Court and its Judgesin the discharge of their duties. The President was alsosatisfied that the questions of law set out in his Order ofReference were of such a nature and of such publicimportance that it was expedient to obtain the opinion ofthis Court on them. That is the genesis of the presentreference.The questions referred to this Court under this Referenceread 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 apreliminary objection on behalf of the Advocate General ofBihar. He contends that the present Reference is invalidunder Art. 143(1) because the questions referred to thisCourt are not related to any of the entries in Lists 1 andIII and as such, they cannot be said to be concerned withany of the powers, duties or functions conferred on thePresident by the relevant articles of the Constitution. Theargument appears to be that it is only in respect of mattersfailing within the powers, functions and duties of thePresident that it would be competent to him to framequestions for the advisory opinion of this Court under Art.143(1). In our opinion, this contention is whollymisconceived. The words of Art. 143(1) are wide enough toempower the President to forward to this Court for itsadvisory opinion any question of law or fact which hasarisen or which is likely to arise, provided it appears to


the President that such a question is of such a nature or ofsuch public importance that it is expedient to obtain theopinion of this Court upon it. It is quite true that underArt. 143(1) even if questions are referred to this Court forits advisory opinion, this Court is not bound to give suchadvisory opinion in every case. Art. 143(1) provides thatafter the questions formulated by the President are receivedby this Court, it may, after such hearing as it thinkingfit, report to ’the, President its opinion thereon. The useof the word "may" in contrast with the use of the word"shall" in the provision prescribed by Art. 143 (2) clearlybrings opt the fact that in a given case this Court mayrespectfully refuse, to express its advisory opinion if itis satisfied that it should not express its opinion havingregard to the nature of the questions forwarded to it andhaving regard to other relevant facts and circumstances.Art. 143 (2)432deals with cases in which the President may refer a disputeto this Court notwithstanding the prohibition prescribed bythe proviso to Art. 131, and it adds that when such areference is made, the Court shall, after such hearing as itthinks fit, report to the President its opinion thereon. Inother words, whereas in the case of reference made underArt. 143(2) it is the constitutional obligation of thisCourt to make a report on that reference embodying itsadvisory opinion, in a reference made under Art. 143(1)there is no such obligation. In dealing with this latterclass of reference, it is open to this Court to considerwhether it should make a report to the President giving itsadvisory opinion on the questions under reference.This position, however, has no bearing on the questionraised by Mr. Varma. The validity of the objection raisedby Mr. Varma must be judged in the light of the words ofArt. 143(1) themselves and these words are of such wideamplitude that it would be impossible to accede to theargument that the narrow test suggested by Mr. Varma has tobe applied in determining the validity of the referenceitself. What Art. 143(1) requires is that the Presidentshould be satisfied that a question of law or fact hasarisen or is likely to arise. He should also be satisfiedthat such a question is of such a nature and of such publicimportance that it is expedient to obtain the opinion ofthis Court on it. Prima facie, the satisfaction of thePresident on both these counts would justify the reference,and it is only where this Court feels that it would beinadvisable for it to express its advisory opinion on itthat it may respectfully refuse to express any opinion. Butthere can be no doubt that in the present case it would beimpossible to suggest that questions of fact and law whichhave been referred to this Court, have not arisen and theyare not of considerable public importance. Therefore, we donot think there is any substance in the preliminaryobjection raised by Mr. Varma.The references made to this Court since the Constitution wasadopted in 1950 illustrate how’ it would be inappropriate toapply the narrow test suggested by Mr. Varma in determiningthe competence or validity of the reference. The firstSpecial Reference No. 1 of 1951 was made to this Court toobtain the advisory opinion of this Court on the questionabout the validity and constitutionality of the materialprovisions 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.


433Reference(1) was made in 1958. This had reference to thevalidity of certain provisions of the Kerala Education Bill,1957, which had been passed by the Kerala LegislativeAssembly, but had been reserved by the Governor for theconsideration of the President. The third SpecialReference(1) was made in 1959, and it invited the advisoryopinion of this Court in regard to the validity of thematerial provisions of an agreement between the PrimeMinisters of India and Pakistan which was described as theIndo-Pakistan Agreement. The fourth Special Reference(2)was made in 1962. By this reference, the Presidentforwarded for the advisory opinion of this Court questionsin regard to the validity of the relevant provisions of adraft Bill which was intended to be moved in the Parliamentwith a view to amend certain provisions of the Sea CustomsAct, 1878 and the Central Excises and Salt Act, 1944. Itwould thus be seen that the questions so far referred by thePresident for the advisory opinion of this Court under Art.143 (1) do not disclose a uniform pattern and that is quiteclearly consistent with the broad and wide words used inArt. 143(1).It is hardly necessary to emphasise that the questions oflaw which have been forwarded to this Court on the presentoccasion are of very great constitutional importance. Theincidents which have given rise to this Reference posed avery difficult problem and unless further developments inpursuance of the orders passed by the two august bodies werearrested, they were likely to lead to a very serious anddifficult situation. That is why the President took theview that a case for reference for the advisory opinion ofthis Court had been established and he accordinglyformulated, five questions and has forwarded the same to usfor our advisory opinion. Under Art. 143(1) it may becompetent to the President to formulate for the advisoryopinion of this Court questions of fact and law relating tothe validity of the impinged provisions of existing laws; itmay be open to him to formulate questions in regard to thevalidity of provisions proposed to be included in the Billswhich would come before the Legislatures; it may also beopen to him to formulate for the advisory opinion of thisCourt questions of constitutional importance like thepresent; and it may be that the President may, on receivingour answers consider whether the Union Government or theState Government should be requested to take any, suitableor 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] 3S.C.R. 787.434accordance with the opinion expressed by this Court. Thatis why we feel no difficulty in holding that the presentReference is competent.As we have already indicated, when a Reference is receivedby this Court -under Art. 143(1), this Court may, in a givencase, for sufficient and satisfactory reasons, respectfullyrefuse to make a report containing its answers on thequestions framed by the President; such a situation mayperhaps arise if the questions formulated for the advisoryopinion of this Court are purely socioeconomic or politicalquestions which have no relation whatever with any of theprovisions of the Constitution, or have otherwise noconstitutional significance. It is with a view to confer


jurisdiction on this Court to decline to answer questionsfor such strong and compelling reasons that theConstitution, 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 opinionthat the questions formulated for our advisory opinion arequestions of grave constitutional importance andsignificance and it is our duty to make a report to thePresident embodying our answers to the questions formulatedby him.That takes us to the merits of the controversy disclosed bythe questions formulated by the President for our advisoryopinion. This Reference has been elaborately argued beforeus. The learned Attorney-General opened the proceedingsbefore us and stated the relevant facts leading to theReference, and indicated broadly the rival contentions whichthe House and the High Court sought to raise before us bythe statements of the case filed on their behalf. Mr.Seers, the learned Advocate-General of Maharashtra, appearedfor the House and presented before the Court a very learned,impressive and exhaustive argument. He, was followed byseveral learned counsel who broadly supported the standtaken by the House. Mr. Setalvad who appeared for theJudges of the Allahabad High Court, addressed to us a veryable argument With his characteristic brevity and lucidity;and he was, in turn, followed by several learned counsel whoappeared to support the stand taken by the Judges. Durngthe course of the debate several propositions were canvassedbefore us and a very large area of constitutional law wascovered. We ,ought, therefore to make it clear at theoutset that in formulating- our answers to the questionsframed by the President in the present Reference, we proposeto deal with only such points as, in our opinion, have adirect and material bearing on the problems posed by thesaid questions. It is hardly necessary to emphasise that indealing With constitutional matters, the Court435should be slow to deal with questions which do not strictlyarise. This precaution is all the more’ necessary indealing with a reference made to this Court under Art.143(1).Let us then begin by stating broadly the main contentionsurged on behalf of the House and on behalf of the Judges andthe Advocate. Mr. Seervai began his arguments by pointingout the fact that in dealing with reference under Art.143(1), the Court is not exercising what may be described asits judicial function. There are no parties before theCourt in such a reference and there is no his. The opinionexpressed by the Court on the reference is, therefore,advisory; and so, he contends that though ha appears beforeus in the present reference on behalf’ of the House, hewants to make it clear that the House does not submit to thejurisdiction of this Court in any manner in respect of thearea of controversy covered by the questions. In otherwords, he stated that his appearance before us was withoutprejudice to his main contention that the question about theexistence and extent of the powers, privileges andimmunities of the House, as well as the question about theexercise of the powers and privileges were entirely andexclusively within the jurisdiction of the House; andwhatever this Court may say will not preclude the House fromdeciding for itself the points referred to us under thisReference. This stand was based on the ground that theopinion "pressed by us is advisory and not in the nature ofa judicial adjudication between the parties before the Court


as suchThe same stand was taken by Mr. Seervai in regard to Art.194(3) of the Constitution. Art. 194(3) deals with thequestion about the powers, privileges and immunities of theLegislatures and of the Members and Committees thereof. Wewill have occasion to deal with the provisions of thisArticle later on. For the present, it is enough to statethat according to Mr. Seervai, it is the privilege of theHouse to construe the relevant provisions of’ Art. 194(3)and determine for itself what its powers, privileges andimmunities are, and that being so, the opinion expressed bythis Court on the questions relating to the existence andextent of its powers and privileges will not preclude theHouse from, determining the same questions for itselfunfettered by the views of this Court.Having, thus made his position clear in regard to the claimwhich the House proposes to make in respect of its powersand Privileges, Mr. Seervai contended that even in Englandthis dualism between the two rival jurisdictions claimed bythe Judicature and the Parliament has always existed and itstill continue&436to be unresolved. On some occasions, the dispute betweenthe Judicature and the House of Commons has assumed a verybitter form and it has disclosed a complete antinomy orcontradiction in the attitudes adopted by the two respectiveaugust bodies. The courts claimed that they had a right todecide the question about the existence and extent of powersand privileges in question and the Parliament consistentlyrefused to recognise the jurisdiction of the courts in thatbehalf during the 17th, 18th and 19th centuries. TheParliament conceded that it could not create any newprivileges, but it insisted on treating itself as the soleand exclusive judge of the existing privileges and was notprepared to part with its authority to determine what theywere, or to deal with their breach, and how to punish thedelinquent citizens. On the other hand, the courts insistedon examining the validity of the orders passed by theParliament on the ground of breach of privilege, and thedualism thus disclosed persisted for many years.Mr. Seervai ’argues that the House for which he appearsadheres to the stand which the House of Commons took insimilar controversies which led to a conflict between theJudicature and itself on several occasions in the past.Consistently with this attitude, be denies the jurisdictionof the Allahabad High Court to deal with the points raisedby Keshav Singh in his writ petition. Logically, hisargument is that the presentation of the petition by KeshavSingh and his Advocate amounted to contempt of the House,and when the learned Judges entertained the petition andpassed an interim order on it, they committed contempt ofthe House. That is the view taken by the House, and thepropriety, correctness, or validity of this view is notexaminable by the Judicature in this country.Alternatively, Mr. Seervai put his argument on a slightlydifferent basis. He conceded that for over a century past,in England, this controversy can be taken to have beensettled to a large extent by agreement between theJudicature and the House of Commons. It now appears to berecognised by the House of Commons that the existence andextent of privilege can be examined by the courts. It alsoappears to be recognised by the House of Commons that if inexercise of its power to punish a person for its contempt,it issues a speaking warrant, it would be open to the courtto consider whether the reasons set out in the warrant


amount to contempt or not. To this limited extent, thejurisdiction of the Judicature is recognised andconsistently, for-the last century, whenever it becamenecessary to justify the orders passed by it for itscontempt, a return has always been437filed in courts. Mr. Seervai, however, emphasises the factthat even as a result of this large measure of agreementbetween the Judicature and the House of Commons on thequestion about the nature and extent of privilege, itappears to be taken. as settled that if an unspeaking orgeneral warrant is issued by the House of Commons to punisha person who is guilty of its contempt, the courts wouldinvariably treat the said general warrant as conclusive andwould not examine the validity of the order passed by theHouse. In the present case, according to Mr. Seervai, theresolution which has been passed by the House against thetwo learned Judges as well as against Mr. Solomon is in thenature of a general resolution and though the warrantsissued against the Judges have been withdrawn, it is clearthat the decision of the House and the warrants which wereinitially ordered to be issued in pursuance of the saidresolution, were in the nature of general resolution andgeneral warrants, and so, it would not be open to this Courtto enquire the reasons for which the said warrants wereissued. The resolution in question and the warrants issuedpursuant to it are conclusive and must be treated as such.The argument, therefore, is that in answering the questionformulated under the present Reference, we should giveeffect to this position which appears to have been evolvedby some sort of implied agreement between the Judicature andthe House of Commons. This agreement shows that the rightto determine questions of contempt and to decide adequacy ofpunishment for the said contempt belong exclusively to theHouse, and if in pursuance of the said exclusive power, ageneral warrant is issued, the House can never be calledupon to explain the genesis or the reasons for the saidwarrant. This itself is an integral part of the privilegesand powers of the House, and this integral part, accordingto the House, has been brought into India as a result ofArt. 194(3) of the Constitution. In other words, theargument is that even if this Court has jurisdiction todetermine the scope and effect of Art. 194(3), it shouldbear in mind the fact that this particular Power to issue anunspeaking general warrant and to insist upon the Judicaturetreating the said warrant as conclusive, is a part of theprivileges to which the latter part of Art. 194(3) refers.It is on this broad ground that Mr. Seervai wanted us toframe our answers to the questions which are the subject-matter of the Reference.On the other hand, Mr. Setalvad, for the Judges, contendsthat there is no scope for importing into our Constitutionthe dualism which existed in England between the Judicatureand the House of Commons. He contends that there can be nodoubt438that the question of construing Art. 194(3) falls within theexclusive jurisdiction of this Court and the High Courts andthat the construction which this Court would place upon therelevant words used in the latter part of Art. 194(3) wouldfinally determine the scope, extent and character of theprivileges in question. According to Mr. Setalvad, Art.194(3) cannot be read in isolation, but must be read in itscontext and in the light of other important constitutionalprovisions, such as Arts. 32, 211 and 226. When the


material portion of Art. 194(3) is thus read, it wouldappear that there is no scope for introducing any antinomyor conflict or dualism between the powers of the High Courtand those of the House in relation to matters which havegiven rise to the present ’questions. He further urges thatit would be idle for the House to adopt an attitude whichthe House of Commons in England appears to have adopted inthe 17th, 18th and 19th centuries when conflicts arosebetween the said House and the Judicature. For more than acentury no attempt has been made by the House of Commons,says Mr. Setalvad, to contend that if a citizen who ispunished by the House for its alleged contempt committed byhim would be guilty of another contempt if he moved theCourt in its habeas corpus jurisdiction, nor has Any attemptbeen made during this period by the House of Commons toproceed against a lawyer Who presents an application forhabeas corpus or against Judas who entertain suchapplications; and so, the argument is that we ought ’to dealwith the present dispute on the basis of the commonagreement which has, by convention, been evolved between thetwo august and powerful institutions, the Judicature and theLegislature.Mr. Setalvad conceded that there appears to be some conven-tion recognised by the English courts by which they treat ageneral or unspeaking warrant issued by the House asusually-conclusive; but this aspect of the matter, accordingto him, is the result of convention or comity and cannot betreated as an integral part of the, privilege of the Houseitself. The basis for -evolving this con I mention isrooted in the history of England, because the Parliament wasthe highest Court of Justice at one time and it is becauseof this history that the House of Commons came also to beregarded as a superior Court of Record. Such ’at assumptioncannot be made in respect of the House in the presentproceedings. Besides, in dealing with the question aboutthe effect of a general warrant, the Court cannot ignore thesignificance of Arts. 32, 211 and 226 of the Constitution.Basing himself broadly on these arguments, Mr. Setalvadcontends that the Constitution has resolved the problem ofdualism in our country by439conferring on the High Courts and this Court thejurisdiction to deal with claims made by the citizens whosefundamental rights have been invaded, and that means that inthis country, if an application for habeas corpus is made,it would be competent to. this Court or the High Courts toexamine the validity of the order passed by any authorityincluding the Legislature, and that must necessarily involvethe consequence that an unspeaking warrant cannot claim theprivilege of conclusiveness. That, in brief, in its broadfeatures, is the approach adopted by Mr. Setalvad before us.It will thus be seen that the main controversy disclosed bythe five questions formulated by the President ultimatelylies within a very narrow compass. Is the House the soleand exclusive judge of the issue as to whether its contempthas been committed where the alleged contempt has takenplace outside the four walls of’ the House ? Is the Housethe sole and exclusive judge of the punishment which shouldbe imposed on the party whom it has found to be guilty ofits contempt ? And, if in enforcement of its decision theHouse issues a general or unspeaking warrant, is the HighCourt entitled to entertain a habeas corpus petitionchallenging the validity of the detention of the personsentenced by the House ? The, argument urged by Mr. Seervaion behalf of the House is that in the case of a general


warrant, the High Court has no jurisdiction to go behind thewarrant; and in the present case, since it has entertainedthe petition and passed an order releasing Keshav Singh onbail without examining the warrant, and even before a returnwas filed by the respondents, it has acted illegally andwithout jurisdiction, and so, the learned Judges, of theHigh Court, the Counsel, and the party are all guilty ofcontempt of the House. Mr. Seervai urges that in any case,in habeas corpus proceedings of this character, the HighCourt had no jurisdiction to grant interim bail.It is not seriously disputed by Mr. Setalvad that the Househas the power to inquire whether its contempt has beencommitted by anyone even outside its four-walls and has thepower to impose punishment for such contempt; but hisargument is that having regard to the material provisions ofour Constitution, it would not be open to the House to makea claim that its general warrant should be treated asconclusive. In every case where a party has been Sentencedby the House for contempt and detained, it would be open tohim to move the High Court for appropriate relief under Art.226 and the High Court would be entitled to examine themerits of his pleas, even though the warrant may be generalP.C.I./65-3440or unspeaking. According to Mr. Setalvad, since the HighCourt has jurisdiction to entertain a Writ Petition forhabeas corpus under Art. 226, it has also the power to passan order of interim bail. Thus, the dispute really centersround the jurisdiction of the High Court to entertain ahabeas corpus petition even in cases where a general orunspeaking warrant has been issued by the House directingthe detention of the party in contempt.Though the ultimate solution of the problem posed by thequestions before us would thus he within a very narrowcompass, it is necessary to deal with some wider aspects ofthe problem which incidentally arise and the decision ofwhich will assist us in rendering our answers to thequestions framed in the present Reference. The whole of theproblem thus presented before us has to be decided in thelight of the provisions contained in Art. 194 (3 ) of theConstitution, and in that sense, the interpretation of Art.194(3) is really the crux of the matter. At this stage, itis 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."’441It will be noticed that the first three material clauses ofArt. 194 deal with three different topics. Clause (1) makesit clear that the freedom of speech in the Legislature ofevery State which it prescribes, is subject to theprovisions of the Constitution, and to the rules andstanding orders, regulating the procedure of theLegislature. While interpreting this clause, it isnecessary to emphasis that the provisions of theConstitution subject to which freedom of speech has beenconferred on the legislators, are not the general provisionsof the Constitution but only such of them as relate to theregulation of the procedure of the Legislature. The rulesand standing orders may regulate the procedure of theLegislature and some of the provisions of the Constitutionmay also purport to regulate it; these are, for instance,Articles 208 and 211. The adjectival clause "regulating theprocedure of the Legislature" governs both the precedingclauses relating to "the provisions of the Constitution" and"the rules and standing orders." Therefore, clause (1)confers on the legislators specifically the right of freedomof speech subject to the limitation prescribed by its firstpart. It would thus appear that by making this clausesubject only to the specified provisions of theConstitution, the Constitution-makers wanted to make itclear that they thought it necessary to confer on thelegislators freedom of speech separately and, in a sense,independently of Art. 19(1)(a). If all that the legislatorswere entitled to claim was the freedom of speech andexpression enshrined in Art. 19(1)(a), it would have beenunnecessary to confer the same right specifically in themanner adopted by Art. 194(1); and so, it would be legi-timate to conclude that Art. 19(1)(a) is not one of theprovisions of the Constitution which controls the first partof clause (1) ofArt. 194.Having conferred freedom of speech on the legislators,clause (2) emphasises the fact that the said freedom isintended to be absolute and unfettered. Similar freedom isguaranteed to the legislators in respect of the votes theymay give in the Legislature or any committee thereof. Inother words, even if a legislator exercises his right offreedom of speech in violation, say, of Art. 21 1, he wouldnot be liable for any action in any court. Similarly, ofthe legislator by his speech or vote, is alleged to haveviolated any of the fundamental rights guaranteed by PartIII of the Constitution in the Legislative Assembly, hewould not be answerable for the said contravention in anycourt. If the impugned speech amounts to libel or becomesactionable or indictable under any other provision of thelaw, immunity has been conferred on him from any action inany court by this clause. He442may be answerable to the House for such a speech and theSpeaker may take appropriate action against him in respectof it; but that is another matter. It is plain that the


Constitution-makers attached so much importance to thenecessity of absolute freedom in debates within thelegislative chambers that they thought it necessary toconfer complete immunity on the legislators from any actionin any court in respect of their speeches in the legislativechambers in the wide terms prescribed by clause (2). Thus,clause (1) confers freedom of speech on the legislatorswithin the legislative chamber and clause (2) makes it plainthat the freedom is literally absolute and unfettered.That takes us to clause (3). The first part of this clauseempowers the Legislatures of States to make laws prescribingtheir powers, privileges and immunities; the latter partprovides that until such laws are made, the Legislatures inquestion shall enjoy the same powers, privileges andimmunities which the House of Commons enjoyed at thecommencement of the Constitution. The Constitution-makersmust have thought that the Legislatures would take some timeto make laws in respect of their powers, privileges andimmunities. During the interval, it was clearly necessaryto confer on them the necessary powers, privileges andimmunities. There can be little doubt that the powers,privileges and immunities which are contemplated by cl. (3),are incidental powers, privileges and immunities which everyLegislature must possess in order that it may be able tofunction effectively, and that explains the purpose of thelatter part of clause (3).This clause requires that the powers, privileges and immuni-ties which are claimed by the House must be shown to havesubsisted at the commencement of the Constitution, i.e., onJanuary 26, 1950. It is well-known that out of a largenumber of privileges and powers which the House of Commonsclaimed during the days of its bitter struggle forrecognition, some were given up in course of time, and somevirtually faded out by desuetude; and so, in every casewhere a power is claimed, it is necessary to enquire whetherit was an existing power at the relevant time. It must alsoappear that the said power was not only claimed by the Houseof Commons, but was recognised by the English Courts. Itwould obviously be idle to contend that if a particularpower which is claimed by the House was claimed by the Houseof Commons but was not recognised by the English courts, itwould still be upheld under the latter part of clause (3)only on the ground that it was in fact claimed by the Houseof Commons. In other words, the inquiry which is prescribedby this clause is : is443the power in question shown or proved to have subsisted inthe House of Commons at the relevant time ?Clause (4) extends the provisions prescribed by the threepreceding clauses to certain persons therein described.It will thus be seen that all the four clauses of Art. 194are not in terms made subject to the provisions contained inPart In. In fact, clause (2) is couched in such wide termsthat in exercising the rights conferred on them by cl. (1),if the legislators by their speeches contravene any of thefundamental rights guaranteed by Part III, they would not beliable for any action in any court. Nevertheless, if forother valid considerations, it appears that the contents ofcl. (3) may not exclude the applicability of certainrelevant provisions of the Constitution, it would not bereasonable to suggest that those provisions must be ignoredjust because the said clause does not open with the words"subject to the other provisions of the Constitution." Indealing 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 provisionspertaining to fundamental rights, an attempt win have to bemade to resolve the said conflict by the adoption of therule of harmonious construction. What would be the resultof the adoption of such a rule we need not stop to consider,at this stage. We will refer to it later when we deal withthe decision of this Court in Pandit M. S. M. Sharma v. ShriSri Krishna Sinha & Others(1).The implications of the first part of clause (3)may,however, be examined at this stage. The question is, if theLegislature of a State makes a law which prescribes itspowers, privileges and immunities, would this law be subjectto Art. 13 or not ? It may be recalled that Art. 13 providesthat laws inconsistent with or in derogation of thefundamental rights would be void. Clause (1) of Art. 13refers in that connection to the laws in force in theterritory of India immediately before the commencement ofthe Constitution, and clause (2) refers to laws that theState shall make in future. Prima facie, if the legislatureof a State were to make a law in pursuance of the authorityconferred on it by clause (3), it would be law within themeaning of Art. 13 and clause (2) of Art. 13 would render itvoid if it contravenes or abridges the fundamental rightsguaranteed,by Part M. As we will presently point out, thatis the effect of the decision of this Court in PanditSharma’s(1) case. In other words, it must now be taken assettled(1) [1959] Supp. 1 S.C.R. 806.444that if a law is made under the purported exercise of thepower conferred by the first part of clause (3), it willhave to satisfy the test prescribed by the fundamentalrights guaranteed by the Constitution. If that be so, itbecomes at once material to enquire whether theConstitution-makers had really intended that the limitationsprescribed by the fundamental rights subject to which alonea law can be made by the Legislature of a State prescribingits powers, privileges and immunities, should be treated asirrelevant in construing the latter part of the said clause.The same point may conveniently be put in another form. Ifit appears that any of the powers, privileges and immunitiesclaimed by the House are inconsistent with the fundamentalrights guaranteed by the Constitution, how is the conflictgoing to be resolved. Was it the intention of theConstitution to place the powers, privileges and immunitiesspecified in the latter part of cl. (3) on a much higherpedestal than the law which the Legislature of a State maymake in that behalf on a future date ? As a matter ofconstruction of clause (3), the fact that the first part ofthe said clause refers to future laws which would be subjectto fundamental rights, may assume significance ininterpreting the latter part of clause (3). That, in brief,is the position of the first three material provisions ofArt. 194.The next question which faces us arises from the preliminarycontention raised by Mr. Seervai that by his appearancebefore us on behalf of the House, the House should not betaken to have conceded to the Court the jurisdiction toconstrue Art. 194(3) so as to bind it. As we have alreadyindicated, his stand is that in the matter of privileges,the House is the sole and exclusive judge at all stages. Itmay be that technically, the advisory opinion rendered bythis Court on the Reference made to it by the President maynot amount to judicial adjudication properly so-called andsince there are no parties as such before the Court in the


Reference, nobody would be bound by our answers. But apartfrom this technical aspect of the matter, it is necessarythat we should determine the basic question as to whethereven in the matter of privileges, the Constitution conferson the House sole and exclusive jurisdiction as claimed byMr. Seervai. It is common ground that the powers have to befound in Art. 194(3). That provision is the sole foundationof the powers, and no power which is not included in it canbe claimed by the House; and so, at the very ’threshold ofour discussion, we must decide this question.In dealing with this question, it is necessary to bear inmind one fundamental feature of a federal constitution. InEngland,445Parliament is sovereign; and in the words of Dicey, thethree distinguishing features of the principle ofParliamentary Sovereignty are that Parliament has the rightto make or unmake any law whatever; that no person or bodyis recognised by the law of England is having a right tooverride or set aside the legislation of Parliament; andthat the right or power of Parliament extends to every partof the Queen’s dominions(1). On the other hand, the essen-tial characteristic of federalism is ’the distribution oflimited executive, legislative and judicial authority amongbodies which are co-ordinate with and independent of eachothers. The supremacy of the constitution is fundamental tothe existence of a federal State in order to prevent eitherthe legislature of the federal unit or those of the memberStates from destroying or impairing that delicate balance ofpower which satisfies the particular requirements of Stateswhich are desirous of union, but not prepared to merge theirindividuality in a unity. This supremacy of the con-stitution is protected by the authority of an independentjudicial body to act as the interpreter of a scheme ofdistribution of powers. Nor is any, change possible in theconstitution by the ordinary process of federal or Statelegislation(2). Thus the dominant characteristic of theBritish Constitution cannot be claimed by a federalconstitution like ours.Our Legislatures have undoubtedly plenary powers, but thesepowers are controlled by the basic concepts of the writtenConstitution itself and can be exercised within thelegislative fields allotted to their jurisdiction by thethree Lists under the Seventh Schedule; but beyond theLists, the Legislatures cannot travel. They can no doubtexercise their plenary legislative authority and dischargetheir legislative functions by virtue of the powers con-ferred on them by the relevant provisions of theConstitution; but the basis of the power is the Constitutionitself. Besides, the legislative supremacy of ourLegislatures including the Parliament is normally controlledby the provisions contained in Part III of the Constitution.If the Legislatures step beyond the legislative fieldsassigned to them, or acting within their respective fields,they trespass on the fundamental rights of the citizens in amanner not justified by the relevant articles dealing withthe said fundamental rights, their legislative actions areliable to be struck down by courts in India. Therefore, itis necessary to remember that though our Legislatures haveplenary powers, they function within the limits prescribedby 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. Itis no doubt true that the Constitution itself can be amendedby the Parliament, but that is possible because Art. 368 ofthe Constitution itself makes a provision in that behalf,and the amendment of the Constitution can be validly madeonly by following the procedure prescribed by the saidarticle. That shows that even when the Parliament purportsto amend the Constitution, it has to comply with therelevant mandate of the Constitution itself. Legislators,Ministers, and Judges all take oath of allegiance to theConstitution, for it is by the relevant provisions of theConstitution that they derive their authority andjurisdiction and it is to the provisions of the Constitutionthat they owe allegiance. Therefore, there can be no doubtthat the sovereignty which can be claimed by the Parliamentin England, cannot be claimed by any Legislature in India inthe literal absolute sense.There is another aspect of this matter which must also bementioned; whether or not there is distinct and rigidseparation of powers under the Indian Constitution, there isno doubt that the Constitution has entrusted to theJudicature in this country the task of construing theprovisions of the Constitution and of safeguarding thefundamental rights of the citizens. When a statute ischallenged on the ground that it has been passed by aLegislature without authority, or has otherwiseunconstitutionally trespassed on fundamental rights, it isfor the courts to determine the dispute and decide whetherthe law passed by the legislature is valid or not. Just asthe legislatures are conferred legislative authority andtheir functions are normally confined to legislativefunctions, and the functions and authority of the executivelie -within the domain of executive authority, so thejurisdiction and authority of the Judicature in this countrylie within the domain of adjudication. If the validity ofany law is challenged before the courts, it is neversuggested that the material question as to whetherlegislative authority has been exceeded or fundamentalrights have been contravened, can be decided by thelegislatures themselves. Adjudication of such a dispute isentrusted solely and exclusively to the Judicature of thiscountry; and so, we feel no difficulty in holding that thedecision about the construction of Art. 194(3) mustultimately rest exclusively with the,Judicature of thiscountry. That is why we must over-rule Mr. Seervai’sargument that the question of determining the nature, scopeand effect of the powers of the House cannot be said to lieexclusively within the jurisdiction of this Court. Thisconclusion, however, would not impair the validity of Mr.Seervai’s contention that the advisory opinion447rendered by us in the present Reference proceedings is notadjudication properly so-called and would bind no parties assuch.In coming to the conclusion that the content of Art. 194(3)must ultimately be determined by courts and not by thelegislatures, we are not unmindful of the grandeur andmajesty of the task which has been assigned to theLegislatures under the Constitution. Speaking broadly, allthe legislative chambers in our country today are playing asignificant role in the pursuit of the ideal of a WelfareState which has been placed by the Constitution before ourcountry, and that naturally gives the legislative chambers ahigh place in the making of history today. The High Courts


also have to play an equally significant role in thedevelopment of the rule of law and there can be little doubtthat the successful working of the rule of law is the basicfoundation of the democratic way of life. In thisconnection it is necessary to remember that the status,dignity and importance of these two respective institutions,the Legislatures and the Judicature, are derived primarilyfrom ’the status dignity and importance of the respectivecauses that are assigned to their charge by theConstitution. These two august bodies as well as theExecutive which is another important constituent of ademocratic State, must function not in antinovel nor in aspirit of hostility, but rationally, harmoniously and in aspirit of understanding within their respective spheres, forsuch harmonious working of the three constituents of thedemocratic State alone will help the peaceful development,growth and stabilization of the democratic way of life inthis country.But when, as in the present case, a controversy arisesbetween the House and the High Court, we must deal with theproblem objectively and impersonally. There is no occasionto import heat into the debate or discussion and nojustification for the use of strong language. The problempresented to us by the present reference is one ofconstruing the relevant provisions of +,he Constitution andthough its consideration may present some difficult aspects,we must attempt to find the answers as best we can. Indealing with a dispute like the present which concerns thejurisdiction, the dignity and the independence of two augustbodies in a State, we must remember that the objectivity ofour approach itself may incidentally be on trial. It is,therefore, in a spirit of detached objective enquiry whichis the distinguishing feature of judicial process that wepropose to find solutions to the questions framed for ouradvisory opinion. If ultimately we come to the conclusionthat the view pressed before us by Mr. Setalvad for the HighCourt Is erroneous, we would not hesitate to pronounce ’ ourverdict448against that view. On the other hand, if we ultimately cometo the conclusion that the claim made by Mr. Seervai for theHouse cannot, be sustained, we would not falter to pronounceour verdict accordingly. In dealing with problems of thisimportance and significance, it is essential that we shouldproceed to discharge our duty without fear or favour,affection or ill-will and with the full consciousness thatit is our solemn obligation to uphold the Constitution andthe laws.It would be recalled that Art. 194(3) consists of two parts.The first part empowers the Legislature to define by lawfrom time to time its powers, privileges and immunities,whereas the Second part provides that until the legislaturechooses so to define its powers, privileges and immunities,its powers, privileges and immunities would be those of theHouse of Commons of the Parliament of the United Kingdom andof its members and committees, at the commencement of theConstitution. Mr. Seervai’s argument is that the latterpart of Art. 194(3) expressly provides that all the powerswhich vested in the House of Commons at the relevant time,vest in the House. This broad claim, however, cannot beaccepted in its entirety, because there are some powerswhich cannot obviously be claimed by the House. Take theprivilege of freedom of access which is exercised by theHouse of Commons as a body and through its Speaker "to haveat all times the right to petition, counsel, or remonstrate


with their Sovereign through their chosen representative andhave a favorable construction placed on his words was justlyregarded by the Commons as fundamental privilege(1)". It ishardly necessary to point out that the House cannot claimthis privilege. Similarly, the privilege to pass acts ofattainder and the privilege of impeachment cannot be claimedby the House. The House of Commons also claims theprivilege in regard to its own Constitution. This privilegeis expressed in three ways, first by the order of new writsto fill vacancies that arise in the Commons in the course ofa parliament; secondly, by the trial of controvertedelections; and thirdly, by determining the qualifications ofits members in cases of doubt(1). This privilege again,admittedly, cannot be claimed by the House. Therefore, itwould not be correct to say that an powers and privilegeswhich were possessed by the House of Commons at the relevanttime can be claimed by the House.In construing the relevant provision of Art. 194(3), we mustdeal with the question in the light of the previous decisionof this(1) Sir T. Erskine May’s Parliamentary Practice(16th ed.)p. 86.(2) lbid, p. 175.449Court in Pandit Sharma’s(1) case. It is, therefore,necessary to recall what according to the majority decisionin that case, is the position of the provision contained inArt. 194(3). In that case. the Editor of the English dailynewspaper, Search Light of Patna, had been called upon bythe Secretary of the Patna Legislative Assembly to showcause before the Committee of Privileges why appropriateaction should not be taken against him for the breach ofprivileges of the Speaker and the Assembly in that he hadpublished in its entirety the speech delivered in theAssembly by a Member, portions of which had been directed tobe expunged by the Speaker. The Editor who moved this Courtunder Art. 32, contended that the said notice and the actionproposed to be taken by the Committee contravened hisfundamental right of freedom of speech and expression underArt. 19 (1) (a), and also trespassed upon the protection ofhis personal liberty guaranteed under Art. 21. It is onthese two grounds that the validity of the notice wasimpeached by him. This claim was resisted by the House byrelying on Art. 194(3). Two questions arose, one waswhether the privilege claimed by the House was a subsistingprivilege in England at the relevant time; and the otherwas, what was the result of the impact of Articles 19 (1)(a) and 21 on the provisions contained in the latter part ofArticle 194(3)? The majority decision was that theprivilege in question was subsisting at the relevant timeand must, therefore, be deemed to be included under thelatter part of Art. 194 (3). It also held that Art. 19 (1)(a) did not apply, because under the rule of harmoniousconstruction, in a case like the present where Art. 19 (1)(a) was in direct conflict with Art. 194(3), the particularprovision in the latter article would prevail over thegeneral provision contained in the former; it further, heldthat though Art. 21 applied, it had not been contravened.The minority view, on the other hand, was that the privilegein question had not been established in fact, and thatalternatively, if it be assumed that such privilege wasestablished and was, therefore, included under the latterpart of Art. 194(3), it must be controlled by Art. 19(1)(a)on the ground that fundamental rights guaranteed by Part IIIof 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 thepoints decided both by the majority and minority decisionsin that case. Before the Court, it was urged by thepetitioner that though Art.(1) [1959] Supp. 1 S.C.R. 806.450194(3) had not been made subject to the provisions of theConstitution, it does not necessarily mean that it is not sosubject, and that the several clauses of Art. 194 should notbe treated as distinct ,and separate provisions but shouldbe read as a whole and that, so read, all the clauses shouldbe taken as subject to the provisions of the Constitutionwhich, of course, would include Art. 19(1)(a). Thisargument was rejected both by the majority and -the minorityviews.The next argument urged in that case was that Art. 194(1) inreality operates as an abridgement of the fundamental rightof freedom of speech conferred by Art. 19(1)(a) whenexercised in the State Legislatures, but Art. 194(3) doesnot, in terms, purport to be an exception to Art. 19(1)(a).This argument was also rejected by both the majority andthe’ minority views. It was ,pointed out by the majoritydecision that clause (1) of Art. 194 no doubt makes asubstantive provision of the said clause subject to theprovisions of the Constitution; but in the context, thoseprovisions cannot take in Art. 19 (1) (a), because thislatter article does not purport to regulate the procedure ofthe legislature and it is only such provisions of theConstitution which regulate the procedure of the legislaturewhich. are included in the first part of Art. 194(1).The third argument urged by the petitioner was that Art. 19enunciates a transcendental principle and should prevailover the provisions of Art. 194(3), particularly becausethese latter provisions were of a transitory character.This contention was rejected by the majority view, but wasupheld by the minority view.The fourth argument urged was that if a law is made by thelegislature prescribing ’its powers, privileges andimmunities, it would be subject to Art. 13 of theConstitution and would become void to the extent itcontravenes the fundamental rights enshrined in Part III.This contention was accepted by both the majority and theminority decisions.That left one more point to be considered and it hadreference to the observations made in an earlier decision ofthis Court in Gunupati Keshavram Reddy v. Nafisul Hasan andthe State of U.P. (1). The majority decision has commentedon this earlier decision and has observed that the saiddecision was based entirely on a concession and cannot,therefore, be deemed to be a considered decision of thisCourt. As we will presently point out,(1) A.I.R. 1954 S.C. 636.451the said decision dealt with the applicability of Art. 22(2)to a case falling under the latter part of Art. 194(3). Theminority opinion, however, treated the said decision as aconsidered decision which was binding on the Court.We ought to add that the majority decision, in terms, heldthat Art. 21 applied, but, on the merits, it came to theconclusion that its alleged contravention had not beenproved. On the minority view it was unnecessary to considerwhether Art. 21 as such applied, because the said viewtreated all the fundamental rights guaranteed by Part III as


paramount and, therefore, each one of them would control theprovisions 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 generalissue as to the relevance and applicability of all thefundamental rights guaranteed by Part HI at all. Thecontravention of only two articles was pleaded and they wereArticles 19(1)(a) and 21. Strictly speaking, it was,therefore, unnecessary to consider the larger issue as towhether the latter part of Art. 194(3) was subject to thefundamental rights in general, and indeed, even on themajority view it could not be said that the said viewexcluded the application of all fundamental rights, for theobvious and simple reason that Art. 21 was held to beapplicable and the merits of the petitioner’s argument aboutits alleged contravention in his case were examined andrejected. Therefore, we do not think it would be right toread the majority decision as laying down a generalproposition that whenever there is a conflict between theprovisions of the latter part of Article 194(3) and any ofthe provisions of the fundamental rights guaranteed by PartIII, the latter must always yield to the former. Themajority decision, therefore, must be taken to have settledthat Art. 19(1)(a) would not apply, and Art. 21 would.Having reached this conclusion, the majority decision hasincidentally commented on the decision in Gunupati KeshavramReddy’s(2) case. Apart from the fact that there was nocontro- versy about the applicability of Art. 22 in thatcase, we ought to point out, with respect, that the commentmade by the majority judgment on the earlier decision ispartly not accurate. In that case, a Constitution Bench ofthis Court was concerned with the detention of Mr. Mistryunder an order passed by the Speaker of the Uttar PradeshLegislative Assembly for breach of privilege of the saidAssembly. The validity of Mr. Mistry’s detention waschallenged 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. 636.452the Constitution. The facts alleged in support of this pleawere admitted to be correct by the Attorney-General, and onthose admitted facts, the Court held that Mr. Mistry’sdetention was -clearly invalid. Referring to this decision,the majority judgment has observed that it "proceededentirely on a concession of counsel and cannot be regardedas a considered opinion on the subject." There is no doubtthat the first part of this comment is not accurate. Aconcession was made by the Attorney-General not on a pointof law which was decided by the Court, but on a point offact; and so, this part of the comment cannot strictly besaid to be justified. It is, however, true that there is nodiscussion about the merits of the contention raised onbehalf of Mr. Mistry and to that extent, it may have beenpermissible to the majority judgment to say that it was nota considered opinion of the Court. But, as we have alreadypointed out, it was hardly necessary for the majoritydecision to deal with the point pertaining to theapplicability of Art. 22(2), because that point did notarise in the proceedings before the Court in PanditSharma’s(1) case. That is why we wish to make it clear thatthe orbiter observations made in the majority judgment aboutthe validity or correctness ,of the earlier decision of thisCourt in Gunther Keshavram Reddy’s(1) case should not betaken as having decided the point in question. In other


words, the question as to whether Art. 22(2) would apply tosuch a case may have to be considered by this Court if andwhen it becomes necessary to do so.Before we part with the decision of this Court in PanditSharma’s(1) case, it is necessary to refer to another point.We have already observed that the majority decision hasaccepted the, contention raised by the petitioner in thatcase that of a law were passed by the Legislature of a Stateprescribing its powers, privileges and immunities asauthorised by the first part of Art. 194(3), it would besubject to Art. 13. Mr. Seervai has attempted to challengethe correctness of this conclusion. He contends that thepower conferred on the legislatures by the first part ofArt. 194(3) is a constitutional power, and so, if a law ispassed in exercise of the said power, it will be outside thescope of Art. 13. We are unable to accept this contention.It is true that the power to make such a law has beenconferred on the legislatures by the first part of Art.194(3); but when the State Legislatures purport to exercisethis power, they will undoubtedly be acting under Art. 246read with Entry 39 of List IT.. The enactment of such a lawcannot be said to be in exercise of a constituent power, andso, such a law will have to be treated as a law within themeaning(1) [1959] Supp. 1 S.C.R. 806.(2) A.I.R. 1954 S. C. 636.453of Art. 13. That is the view which the majority decisionexpressed in the case of Pandit Sharma(1), and we are inrespectful agreement with that view.Mr. Seervai attempted to support his contention by referringto some observations made by Venkatarama Aiyar J. inAnanthakrishnan v. State of Madras(1). In that case, thelearned Judge has observed that "[Art. 131 applies in termsonly to laws in force before the commencement of theConstitution and to laws to be enacted by the States, thatis, in future. It is only those two classes of laws thatare declared void as against the provisions of Part III. Itdoes not apply to the Constitution itself. It does notenact that the other portions of the Constitution should bevoid as against the provisions in Part III and it would besurprising if it did, seeing that all of them are parts ofone organic whole." This principle is obviouslyunexceptionable. This principle could have been invoked ifit had been urged before us that either the first or thesecond part of Art. 194(3) itself is invalid because it isinconsistent with the relevant provisions in Part III whichprovides for fundamental rights. That, however, is not theargument of Mr. Setalvad, nor was it the argument urgedbefore this Court in the case of Pandit Sharma(1). Theargument was and is that if in pursuance of the powerconferred by the first part of Art. 194(3) a law is made bythe 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 makeany law which takes away or abridges the rights conferred byPart III and any law made in contravention of this clauseshall, to the extent of the contravention, be void. The lawwith which we are dealing does not purport to amend theConstitution and would not, therefore, form part of theConstitution when it is passed; like other laws passed bythe Legislatures in exercise of the legislative powersconferred on them, this law would also be law within themeaning of Art. 13, and so, it is unreasonable to contendthat the view taken by this Court in the case of Pandit


Sharma(,,) that such a law would be subject to thefundamental rights and would fall within the mischief ofArt. 13(2), requires reconsideration. The position,therefore, is that,in dealing with the present dispute weought to proceed on the basis that the latter part of Art.194(3) is not subject to Art. 19(1) (a), but is subject toArt. 21.The next question which we ought to consider is : was it theintention of the Constitution to perpetuate the dualismwhich(1) [1959] Supp. 1 S. C. R. 806.(2) I.L.R. (1952] Mad. 933, 951.454rudely disturbed public life in England in the 17th, 18thand 19th centuries ? The Constitution-makers were aware ofseveral unhappy situations which arose as a result of theconflict between the Judicature and the Houses of Parliamentand they knew that these situations threatened to create adeadlock in the public life of England. When they enactedArt. 194(3), was it their intention to leave this conflictat large, or have they adopted a scheme of constitutionalprovisions to resolve that conflict ? The answer to thisquestion would obviously depend upon a harmoniousconstruction of the relevant provisions of the Constitutionitself.Let us first take Art. 226. This Article confers very widepowers on every High Court throughout the territories inrelation to which it exercises jurisdiction, to issue to anyperson or authority, including in appropriate cases anyGovernment, within those territories directions, orders orwrits, including writs in the nature of habeas corpus,mandamus, prohibition, quo warranto, certiorari, or any ofthem for the enforcement of any of the rights conferred byPart HI and for any other purpose. It is hardly necessaryto emphasis that the language used by Art. 226 in conferringpower 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 underArt. 226(1) can, in a proper case, be exercised even againstthe Legislature. If an application is made to the HighCourt for the issue of a writ of habeas corpus, it would notbe competent to the House to raise a preliminary objectionthat the High Court has no jurisdiction to entertain theapplication because the detention is by an order of theHouse. Art. 226(1) read by itself, does not seem to permitsuch a plea to be raised. Art. 32 which deals with thepower of this Court, puts the matter on a still higherpedestal; the right to move this Court by appropriateproceedings for the :enforcement of the fundamental rightsis itself a guaranteed fundamental right, and so, what wehave said about Art. 226(1) is still more true about Art.32(1).Whilst we are considering this aspect of the matter, it isrelevant to emphasise that the conflict which has arisenbetween 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. KeshavSingh claims certain fundamental rights which are guaranteedby the Constitution and he seeks to move the High Courtunder Art. 226 on the ground that his fundamental rightshave been contravened illegally. The High Court purportingto exercise its power under Art. 226(1),455seeks to examine the merits of the claims made by KeshavSingh and issues an interim order. It is this interim order


which has led to the present unfortunate controversy. Nodoubt, by virtue of the resolution passed by the Houserequiring the Judges to appear before the Bar of the Houseto explain their conduct, the controversy has developed intoone between the High Court and the House; but it is becausethe High Court in the discharge of its duties as such Courtintervened to enquire into the allegations made by a citizenthat the Judges have been compelled to enter the arena.Basically and fundamentally, the controversy is between acitizen of Uttar Pradesh and the Uttar Pradesh LegislativeAssembly. That is why in dealing with the question aboutthe extent of the powers of the House in. dealing, withcases of contempt committed outside its four-walls, theprovisions of Art. 226 and Art. 32 assume significance. Wehave already pointed out that in Pandit Sharma(1) this Courthas held that Art. 21 applies where powers are exercised bythe legislature under the latter part of Art. 194(3). If acitizen moves the High Court on the ground that hisfundamental right under Art. 21 has been contravened, theHigh Court would be entitled to examine his claim, and thatitself would introduce some limitation on the extent of thepowers claimed by the House in the present proceedings.There are two other articles to which reference must bemade. Art. 208(1) provides that a House of the Legislatureof a State may make rules for regulating, subject to theprovisions of this Constitution, its procedure and theconduct of its business. This provision makes it perfectlyclear that if the House were to make any rules as prescribedby it, those rules would be subject to the fundamentalrights guaranteed by Part M. In other words, where the Housemakes rules for exercising its powers under the latter partof Art. 194(3), those rules must be subject to the fundamen-tal rights of the citizens.Similarly, Art. 212(1) makes a provision which is relevant.It lays down that the validity of any proceedings in theLegislature of a State shall not be called in question onthe ground of any alleged irregularity of procedure. Art.212(2) confers immunity on the officers and members of theLegislature in whom powers are vested by or under theConstitution for regulating procedure or the conduct ofbusiness, or for maintaining order, in the Legislature frombeing subject to the jurisdiction of any court in respect ofthe exercise by him of those powers. Art. 212(1)(1) [1959] pp. 1 S.C.R. 806.Sup.C.I.165-4456seems to make it possible for a citizen to call in questionin the appropriate court of law the validity of anyproceedings inside the legislative chamber if his case isthat the said proceedings suffer not from mere irregularityof procedure, but from an illegality. If the impugnedprocedure is illegal and unconstitutional, it would be opento be scrutinised in a court of law, though such scrutiny isprohibited if the complaint against the procedure is no morethan this that the procedure was irregular. That again isanother indication which may afford some assistance inconstruing the scope and extent of the powers conferred onthe House by Art. 194(3).That takes us to Art. 211. This article provides that nodiscussion shall take place in the Legislature of a Statewith respect to the conduct of any Judge of the SupremeCourt or of a High Court in the discharge of his duties.This provision amounts to an absolute constitutionalprohibition against any discussion in the Legislature of aState in respect of the judicial conduct of a Judge of this


Court or of the High Court. Mr. Setalvad who appeared forthe Judges has, based his argunent substantially on theprovisions of this article. He contends that theunqualified and absolute terms in which the constitutionalprohibition is couched in Art. 211 unambiguously indicatethat the conduct of a Judge in the discharge of his dutiescan never become the subjectmatter of any action taken bythe House in exercise of its powers or privileges conferredby the latter part of Art. 194(3). If a Judge in thedischarge of his duties commits contempt of the House, theonly step that can be taken against him is prescribed byArt. 121. Art. 121 provides that no discussion shall takeplace in Parliament with respect to the conduct of any Judgeof the Supreme Court or of a High Court in the discharge ofhis duties except upon a motion for presenting an address tothe President praying for the removal of the Judge ashereinafter provided. Reading Articles 121 and 211together, two points clearly emerge. The judicial conductof the Judge cannot be discussed in the State Legislature.It can be discussed in the Parliament only upon a motion forpresenting an address to the President praying for theremoval of the Judge. The Constitution-makers attached somuch importance to the independence of the Judicature inthis country that they thought it necessary to place thembeyond any controversy, except in the manner provided byArt. 121. If the judicial conduct of a Judge cannot be dis-cussed in the House, it is inconceivable that the sameconduct can be legitimately made the subject-matter ofaction by the House457in exercise of its powers under Art. 194(3). That, insubstance, is the principal argument which has been urgedbefore us by Mr. Setalvad.On the other hand, Mr. Seervai has argued that the effect ofthe provisions contained in Art. 211 should not beexaggerated. He points out that Art. 211 appears in ChapterHI which deals with the State Legislature and occurs underthe topic "General Procedure", and so, the only object whichit is intended to serve is the regulation of the procedureinside the chamber of the Legislature. He has also reliedon the provisions of Art. 194(2) which expressly prohibitany action against a member of the Legislature for anythingsaid or any vote given by him in the Legislature. In otherwords, if a member of the Legislature contravenes theabsolute prohibition prescribed by Art. 21 1, no action canbe taken against him in a court of law and that, says Mr.Seervai, shows that the significance of the prohibitioncontained in Art. 211 should not be overrated. Besides, asa matter of construction, Mr. Seervai suggests that thefailure to comply with the prohibition contained in Art. 211cannot lead to any constitutional consequence, and insupport of this argument, he has relied on a decision ofthis Court in State of U.P. v. Manbodhan Lal Srivastava(1).In that cases, this Court was dealing with the effect of theprovisions contained in Art. 320 of the Constitution. Art.320 prescribes the functions of the Public Service Commis-sions, and by clause 3(c) it has provided that the UnionPublic Service Commission or the State Public ServiceCommission, as the case may be, shall be consulted on alldisciplinary matters affecting a person serving under theGovernment of India or the Government of a State in a civilcapacity, including memorials or petitions relating to suchmatters. It was held that the provisions of this clausewere not mandatory and did not confer any right on a publicservant, so that the absence of consultation or any irregu-


larity in consultation did not afford him a cause of actionin a court of law. Mr. Seervai’s argument is that the wordsused in Art. 211 should be similarly construed and theprohibition on which Mr. Setalvad relies should be deemed tobe merely directory and not mandatory.We are not impressed by Mr. Seervai’s arguments. The factthat Art. 21 1 appears under a topic dealing with "ProcedureGenerally", cannot mean that the prohibition prescribed byit is not mandatory. As we have already indicated, intrying to appreciate the full significance of thisprohibition, we must read Articles 211(1) [1958] S.C.R. 533.458and 121 together. It is true that Art. 194(2) in termsprovides for immunity of action in any court in respect of aspeech made by a member or a vote given by him in thelegislative Assembly. But this provision itselfemphatically brings out the fact that the Constitution wasanxious to protect full freedom of speech and expressioninside the legislative chamber, and so, it took the pre-caution of making a specific provision to safeguard thisfreedom of speech and expression by saying that even thebreach of the constitutional prohibition prescribed by Art.211 should not give rise to any action. Undoubtedly, theSpeaker would not permit a member to contravene Art. 21 1;but if, inadvertently, or otherwise, a speech is made withinthe legislative chamber which contravences Art. 21 1, theConstitution-makers have given protection to such speechfrom 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 aspeech contravenes Art. 21 1 or not, it would be for theSpeaker to give his ruling on the point. In dealing withsuch a question, the Speaker may have to consider whetherthe observations which a member wants to make are inrelation to the conduct of a Judge in discharge of hisduties, and in that sense, that is a matter for the Speakerto decide. But the significant fact still remains that theConstitution-makers thought it necessary to make a specificprovision by Art. 194(2) and that is the limit to which theConstitution has gone in its objective of securing completefreedom of speech and expression within the four-walls ofthe legislative chamber.The latter part of Art. 194(3) makes no such exception, andso, it would be logical to hold that whereas a speech madein contravention of Art. 211 is protected from action in acourt by Art. 194(2), no such exception or protection isprovided in prescribing the powers and privileges of theHouse under the latter part of Art. 194(3). If a Judge inthe discharge of his duties passes an order or makesobservations which in the opinion of the House amount tocontempt, and the House proceeds to take action against theJudge in that behalf, such action on the part of the Housecannot be protected or justified by any specific provisionmade by the latter part of Art. 194(3). In our opinion, theomission to make any such provision when contrasted with theactual provision made by Art. 194(2) is riot withoutsignificance. In other words, this contrast leads to theinference that the Constitution makers took the view thatthe utmost that can be done to assure absolute freedom ofspeech and expression inside the legislative459chamber, would be to make a provision in Art. 194(2); andthat is about all. The conduct of a Judge in relation tothe discharge of his duties cannot be the subject-matter of


action in exercise of the powers and privileges of theHouse. Therefore, the position is that the conduct of aJudge in relation to the discharge of his duties cannotlegitimately be discussed inside the, House, though if itis, no remedy lies in a court of law. But such conductcannot be made the subject-matter of any proceedings underthe latter part of Art. 194(3). If this were not the trueposition, Art. 211 would amount to a meaningless declarationand that clearly could not have been the intention of theConstitution.Then, as regards the construction of Art. 21 1 itself, Mr.Seervai is no doubt in a position to rely upon the decisionof this Court in State of U.P. v. Manbodhan LalSrivastava(1). But it would be noticed that in coming tothe conclusion that the provision contained in Art.320(3)(c) was not mandatory, this Court has referred tocertain other facts which determined the said construction.Even so, this Court has accepted the principle laid down bythe Privy Council in Montreal Street Railway Company v.Normandin(1) wherein the Privy Council observed that "thequestion whether provisions in a statute are directory orimperative has very frequently arisen in this country, butit has been said that no general rule can be laid down, andthat in every case the object of the statute must be lookedat." question as to whether a statute is mandatory ordirectory depends upon the intent of the legislature and notupon the language in which the intent is clothed. Themeaning and intention of the legislature must govern, andthese are to be ascertained, not only from the phraseologyof the provision, but also by consider in its nature, itsdesign, and the consequences which would follow fromconstruing it the one way or the other."(1) These principleswould clearly negative the construction for which Mr.Seervai contends. It is hardly necessary to refer to otherprovisions of the Constitution which are intended tosafeguard the independence of the Judicature in thiscountry. The existence of a fearless and independentjudiciary can be said to be the very basic foundation of theconstitutional structure in India, and so, it would be idle,we think, to contend that the absolute prohibitionprescribed by Art. 21 1 should be read as merely directoryand should be allowed to be reduced to a meaninglessdeclaration by permitting the House to take action against aJudge 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. 516.460duties. Therefore, we are satisfied that Mr. Setalvad isright when he contends that whatever may be the extent ofthe powers and privileges conferred on the House by thelatter part of Art. 194(3), the power to take action againsta Judge for contempt alleged to have been committed by him,by his act in the discharge of his duties cannot be includedin them. Thus, Mr. Setalvad’s case is that so far as theJudges are concerned, the position is quite clear that as aresult of the impact of the provisions contained in Articles226 and 211, judicial conduct can never become the subject-matter of contempt proceedings under the latter part of Art.194(3), even if it is assumed that such conduct can becomethe subjectmatter of contempt proceedings under the powersand privileges possessed by the House of Commons in England.On the other hand, Mr. Seervai disputes Mr. Setalvad’scontention as to the impact of Arts. 226 and 211 on thelatter part of Art. 194(3) and further urges that even if


Mr. Setalvad be right in respect of that contention, hewould not be entitled to dispute the validity of the powerand privilege claimed by the House of Commons-which can,therefore, be claimed by the House in the presentproceedings-that no court can go behind a general orunspeaking warrant. In order to determine the validity ofthese rival contentions, it is now necessary to considervery briefly what was the position of this particular powerand privilege at the commencement of the Constitution. Indealing with this question, we will also very broadly referto the wider aspect of the powers, privileges and immunitieswhich vest in both the Houses of Parliament in England.While considering the question of the powers, privileges andimmunities of the English Parliament it would, we think, bequite safe to base ourselves on the relevant statementswhich have been made in May’s Parliamentary Practice. Thiswork has assumed the status of a classic on the subject andis usually regarded as an authoritative exposition ofparliamentary practice; and so, we think it would be anexercise in futility to attempt to deal with this questionotherwise than by reference to May. Parliamentaryprivilege, according to May, is the sum of the peculiarrights enjoyed by each House collectively as a constituentpart of the High Court of Parliament, and by members of eachHouse individually, without which they could not dischargetheir functions, and which exceed those possessed by otherbodies or individuals. Thus, privilege, though part of thelaw of the land, is to a certain extent an exemption fromthe ordinary law. The particular privileges of the House ofCommons have been defined as "the sum of the fundamental461rights of the House and of its individual Members as againstthe prerogatives of the Crown; the authority of the ordinarycourts of law and the special rights of the House, of-Lords". There is a distinction between privilege andfunction, 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 Housewhich are generally accepted as necessary for the exerciseof its constitutional functions. The distinctive mark of aprivilege is its ancillary character. The privileges ofParliament are rights which are "absolutely necessary forthe due execution of its powers". They are enjoyed byindividual Members, because the House cannot perform itsfunctions without unimpeded use of the services of itsMembers; and by each House for the protection of its Membersand the vindication of its own authority and dignity(1).May points out that except in one respect, the survivingprivileges of the House of Lords and the House of Commonsare justifiable on the same ground of necessity as theprivileges enjoyed by legislative assemblies of the self-governing Dominions and certain British colonies, under thecommon law as a legal incident of their legislativeauthority. This exception is the power -to punish forcontempt. Since the decision of the Privy Council inKielley v. Carson(1) it has been held that this power isinherent in the House of Lords and the House of Commons, notas a body with legislative functions, but as a descendant ofthe High Court of Parliament and by virtue of the lex etconsuetudo parliamenti(1). Historically as originally theweaker body, the Commons had a fiercer and more prolongedstruggle for the assertion of their own privileges, not onlyagainst the Crown and the courts, but also against theLords. Thus the concept of privilege which originated inthe special protection against the King began to be claimed


by the Commons as customary rights, and some of these claimsin the course of repeated efforts to assert them hardenedinto legally recognised "privileges".In regard to the fierce struggle by the House of Commons toassert its privileges in a militant way, May has made thesignificant comment that these claims to privilege wereestablished in the late fifteenth and in the sixteenthcenturies and were used by the House of Commons against theKing in the seventeenth and-arbitrarily -against the peoplein the eighteenth century. Not until the nineteenth centurywas equilibrium reached and the limits of privilegeprescribed and accepted by Parliament, the Crown and theCourts(3). The two Houses are thus of equal authority inthe(1) May’s Parliamentary Practice pp. 42-43.(2) 4 Moore P.C. 63.(3) May’s Parliamentary Practice, p. 44.462administration of a common body of privileges. Each House,as a constituent part of Parliament, exercised its ownprivileges independently of the other. They are enjoyed,however, not by any separate right peculiar to each, butsolely by virtue of the law and custom of Parliament.Generally speaking, all privileges properly so-called,appertain equally to both Houses. They are declared andexpounded by each House. and breaches of privilege areadjudged and censured by each; but essentially, it is stillthe law of Parliament that is thus administered. It issignificant that although either House may expound the lawof Parliament, and vindicate its own privileges, it isagreed that no new privilege can be created. This positionemerged as a result of the historic resolution passed by theHouse of Lords in 1.704. This resolution declared "thatneither House of Parliament have power, by any vote ordeclaration, to create to themselves new privileges, notwarranted by the known laws and customs of Parliament.’ Thisresolution was communicated by the House of Lords to Commonsand assented to by them(1). Thus, there can be no doubtthat by its resolutions, the House of Commons cannot add tothe list of its privileges and powers.It would be relevant at this stage to mention broadly themain privileges which are claimed by the House of Commons.Freedom of speech is a privilege essential to every freecouncil or legislature, and that is claimed by both theHouses as a basic privilege. This privilege was from 1541included by established practice in the petition of theCommons to the King at the commencement of the Parliament.It is remarkable that notwithstanding the repeatedrecognition of this privilege, the Crown and the, Commonswere not always agreed upon its limits. This privilegereceived final statutory recognition after the Revolution of1688. By the 9th Article of the Bill of Rights, it wasdeclared "that the freedom of speech, and debates orproceedings in Parliament, ought not to be impeached orquestioned in any court or place out of Parliament"(2).Amongst the other privileges are : the right to excludestrangers, the right to control publication of debates andproceedings, the right to exclusive cognizance ofproceedings in Parliament, the right of each House to be thesole judge of the lawfulness of its own proceedings, and theright implied to punish its own Members for their conduct inParliament(1).Besides these privileges, both Houses of Parliament werepossessed of the privilege of freedom from arrest ormolestation,


(1) May’s Parliamentary Practice, p. 47.(2) Ibid., p. 52.(3) Ibid., pp. 52-53.463and from being impleaded, which was claimed by the Commonson ground of prescription. Although this privilege wasgiven royal and statutory recognition at an early date,ironically enough the enforcement of the privilege wasdependent on the Lords and King, who were not always willingto protect the Commons. In this connection, May refers tothe case of Thorpe who was the Speaker of the House ofCommons and was imprisoned in 1452, under execution from theCourt of Exchequer, at the suit of the Duke of York. It isan eloquent testimony to the dominance of the House of Lordsand the weakness of the House of Commons which wasstruggling to assert its freedom and its rights that whenthe House of Lords in response to the application of theCommons adjudged that Thorpe should remain in prison, theCommons 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 oftime, been discontinued. Amongst them may be mentioned thefreedom from being impleaded. Similarly, by theParliamentary Privilege Act, 1770 a very importantlimitation of the freedom from arrest was affected. Asomewhat similar position arises in respect of the privilegeof exemption from jury service (2). In fact. the list ofprivileges claimed by the House of Commons in early days wasa long and formidable list and it showed how the House ofCommons was then inclined to claim all kinds of privilegesfor itself and its members. In course of time, however,many of these privileges fell into disuse and faded out ofexistence, some were controlled by legislation while themajor privileges which can be properly described asprivileges essential for the efficient functioning of theHouse, still continued in force.In considering the nature of these privileges generally, andparticularly the nature of the privilege claimed by theHouse to punish for contempt, it is necessary to rememberthe historical origin of this doctrine of privileges. Inthis connection, May has emphasised that the original of themodern Parliament consisted in its judicial functions. "Oneof the principal lines of recent research", says May, "hasrevealed the importance of the judicial elements in theorigins of Parliament. Maitland, in his introduction to theParliament Roll of 1305, was the first to emphasise theimportance of the fact that Parliament at that time was theKing’s " great court" and was thereby (among other things)the highest court of royal justice. There is now generalagreement in recognising the strongly judicial streak in thecharacter of the earliest(1) May’s Parliamentary Practice, p. 70.(2) Ibid. pp., 75-77.464Parliaments and the fact that, even under Edward 111,although Parliaments devoted a considerable part of theirtime to political and economic business, the dispensation ofjustice remained one of their chief functions in the eyes ofthe King’s subjects"(1). As is well-known, the Parliamentof the United Kingdom is composed of the Sovereign, theHouse of Lords, and the House of Commons. These severalpowers collectively form the Legislature; and, as distinctmembers of the constitution, they exercise functions andenjoy privileges peculiar to each.The House of Lords, Spiritual and Temporal, sit together,


and jointly constitute the House of Lords(2). The exactdate of the admission of the Commons to a distinct place inthe legislature has always been a subject of controversy;but as it is admitted that they often sat apart fordeliberation, particular instances in which they met indifferent places will not determine whether their sepa-ration, at those times, was temporary or permanent. Whenthe Commons deliberated apart, they sat in the chapter houseor the refectory of the abbot of Westminster; and theycontinued their sittings in that place after their finalseparation(3). The House of Lords always was and continuesto be today a Court of Judicature. According to May, themost distinguishing characteristic of the Lords is theirjudicature, of which they exercise several kinds. They havethe power to sit as a court during prorogation and dis-solution; a Court of Appeal is constituted by the House ofLords and final appellate jurisdiction vests in them(4).May has also referred to the power claimed by the Parliamentin respect of acts of attainder and impeachments, and he hasdescribed how this privilege was exercised by the House ofLords and the House of Commons(1). "In impeachments", saysMay, "the Commons are but accusers and advocates; while theLords alone are judges of the crime. On the other hand, inpassing bills of attainder, the Commons commit themselves byno accusation, nor are their powers directed against theoffender; but they are judges of equal jurisdiction, andwith the same responsibility, as the Lords; and the accusedcan only be condemned by the united judgment of the Crown,the Lords, and the Commons(6)." This aspect of the privilegeis one of the typical features of the historical developmentof the constitutional law in England. It would thus be seenthat a part of the jurisdiction claimed by the House ofLords as well as the House of Commons can be distinctlytraced to the historical origin of the modem Parliamentwhich, as we have just indicated, consisted in the judicialfunctions 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. 41.465The differences in punishments inflicted by Lords andCommons is also of some significance in this context."While both Houses agree in regarding the same offences asbreaches of privilege", says May, "in several importantparticulars there is a difference in their modes ofpunishment. The Lords have claimed to be a court of recordand, as such, not only to imprison, but to impose fines.They also imprison for a fixed time, and order security tobe given for good conduct; and their customary form ofcommitment is by attachment. The Commons, on the otherhand, commit for no specified period, and during the lasttwo centuries have not imposed fines. There can be noquestion that the House of Lords, in its judicial capacity,is a court of record; but, according to Lord Kenyon, ’whenexercising a legislative capacity, it is not a court ofrecord’. Whether the House of Commons be, in law, a courtof record, it would be difficult to determine; for thisclaiming, once firmly maintained, has latterly beenvirtually abandoned, although never distinctlyrenounced"(1). This last comment made by May would be ofdecisive significance when we later have occasion to dealwith the question as to whether the privilege claimed by Mr.Seervai that a general warrant cannot be examined by courtsis a part of the privilege itself, or is the result ofconvention established between the courts and the House of


Commons.Let us then briefly indicate, in the words of May, thegeneral features of the power of commitment possessed by theHouse of Commons. "The power of commitment", says May, "istruly described as the keystone of parliamentary privilege".As was said in the Commons in 1593, "This court for itsdignity and highness hath privilege, as all other courtshave. And, as it is above all other courts, so it hathprivilege above all other courts; and as it hath privilegeand jurisdiction too, so hath it also Coercion andCompulsion; otherwise the jurisdiction is nothing in acourt, if it hath no Coercion" (2). The comment made by Mayon this power of commitment is very instructive. The originof this power which is judicial in its nature is to be foundnaturally in the medieval conception of Parliament asprimarily a court of justice-the "High Court of Parliament".As a court functioning judicially, the House of Lordsundoubtedly possessed the power of commitment by at least asgood a title as any court of Westminster Hall.But the Commons, "new-comers to Parliament" within the timeof judicial memory, could not claim the power on grounds(1) May’s Parliamentary Practice, p. 90. (2) Ibid., p.90.466of immemorial antiquity. As late as 1399 they had record&their protest that they were not sharers in the judgments ofParliament, but only petitioners. The possession of theright by the Commons was challenged on this ground, and wasdefended by arguments which confounded legislative withjudicial jurisdiction. It was probably owing to themedieval inability to conceive of a constitutional authorityotherwise than as in some sense a court of justice that theCommons succeeded in asserting their right to commitoffenders on the same terms as the Lords(1). That is thegenesis of the privilege claimed by the House of Commons inthe matter of commitment.As the history of England shows, the House of Commons had toengage in a fierce struggle in order to arrest recognitionfor this right from the King, the House of Lords, and inmany cases the people themselves. This power was distinctlyadmitted by the Lords at the conference between the twoHouses, in the case of Ashby v. White(2), in 1704, and ithas been repeatedly recognized by courts of law. In factthis power is also virtually admitted by the statute, IJames 1, c. 13, s. 3, which provides that nothing thereinshall "extend to the diminishing of any punishment to, behereafter, by censure in Parliament, inflicted upon anyperson(3)."Now we will refer to the statement of the law in May’s bookon the vexed question about the jurisdiction of courts oflaw in matters of privilege. May says, it would require aseparate treatise to deal adequately with a subject whichraises incidentally such important questions ofconstitutional law. According to him, in cases affectingparliamentary privilege the tracing of a boundary betweenthe competence of the courts and the exclusive jurisdictionof either House is a difficult question of constitutionallaw which has provided many puzzling cases, particularlyfrom the seventeenth to the nineteenth centuries. It hasbeen common ground between the Houses and the courts thatprivilege depends on the "known laws and customs ofParliament", and not on the ipse dixit of either House. Thequestion in dispute was whether the law of Parliament was a"particular" law or part of the common law in its wide andextended sense, and in the former case whether it was a


superior law which overrode the common law. Arising out ofthis question another item of controversy arose between thecourts and the Parliament and that was whether a matter ofprivilege should be judged solely(1) May’s Parliamentary Practice, p. 91.(2) L.J. (1701-05),714.(3) May’s Parliamentary Practice, p. 92.467by the House which it concerned, even when the rights ofthird parties were involved, or whether it might in certaincases be decided in the courts, and, if so, in what sort ofcases (1). The points of view adopted by the Parliament andthe courts appeared to be irreconcilable. The courtsclaimed the right to decide or themselves when it becamenecessary to do so in proceedings brought before them,questions in relation to the existence or extent of theseprivileges, whereas both the Houses claimed to be exclusivejudges of their own privileges. Ultimately, the two pointsof view were reconciled in practice and a solutionacceptable to both he parties was gradually evolved. Thissolution which is marked but by the courts is to insist ontheir right in principle to decide ill questions ofprivilege arising in litigation before them, with certainlarge exceptions in favour of parliamentary jurisdiction.Two of these are the exclusive jurisdiction of each Houseover its own internal proceedings, and the right of eitherHouse to commit and punish for contempt. May adds thatwhile it cannot be claimed that either House has formallyacquiesced in this assumption of jurisdiction by the courts,the absence of any conflict for over a century may indicatea certain measure of tacit acceptance(2). In other words,’the question about the existence and extent of privilege isgenerally treated as justiciable in courts where it becomesrelevant for adjudication of any dispute brought before thecourts.In regard to punishment for contempt, a similar process ofgive and take by convention has been in operation andgradually a large area of agreement has, in practice, beenevolved. Theoretically, the House of Commons claims thatits admitted right to adjudicate on breaches of privilegeimplies in theory the right to determine the existence andextent of the privileges themselves. It has never expresslyabandoned this claim. On the other hand, the courts regardthe privileges of Parliament as part of the law of the land,of which they are bound to take judicial notice Theyconsider it their duty to decide any question of privilegearising directly or indirectly in a case which falls withintheir jurisdiction, and to decide it according to their owninterpretation of the law(3). Naturally, as a result ofthis dualism the decisions of the courts are not accepted asbinding by the House In matters of privilege, nor thedecision of the House by the courts; and as May pointsout, on the theoretical plane, the old dualism remainsunresolved. In practice, however, "there is(1) May’s Parliamentary Practice, p. 150.(2) Ibid., p. 152.(3) Ibid., p. 172.468much more agreement on the nature and principles ofprivilege than the deadlock on the question of jurisdictionwould lead one to expect" and May describes these generalconclusions 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 ascer- tainable, 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 findingpragmatic ad hoc solutions to problems which appear to beirreconcilable by adopting the conventional method of giveand take. The result of this process has been, in the wordsof May, that the House of Commons has not for a hundredyears refused to submit its privileges to the decision ofthe courts, and so, it may be said to have given practicalrecognition to the jurisdiction of the courts over theexistence 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 anyof its recognized privileges(1). That broadly stated, is,the position of powers and privileges claimed by the Houseof Commons.(1) May’s Parliamentary Practice, p. 173.(2) Ibid., pp. 173-74.469What now remains to consider is the position in regard tothe special privilege with which we are concerned, viz., theprivilege to determine whether its contempt has beencommitted and to punish for such contempt, and to claim thata general order or warrant sentencing a person for itscontempt is not examinable in a court of law. Is -this lastright claimed by Mr. Seervai on behalf of the House a partof the privilege vesting in the House of Commons, or is itthe result of an agreement evolved between the courts andthe House by convention, or by the doctrine of comity, or asa matter of legal presumption ? It is to this question thatwe must now turn.Even while dealing with this narrow question, it isnecessary, we think, to refer broadly to the somewhattortuous course through which the law on this question hasbeen gradually evolved by judicial decisions in England.Just as in dealing with the question of privileges, onprinciple we have mainly based ourselves on the statementsof May, so in dealing with the evolution of the law on thisquestion, we will mainly rely on the decisions themselves.Both Mr. Seervai and Mr. Setalvad have referred us to alarge number of English decisions while urging theirrespective contentions before us and in fairness, we thinkwe ought to mention some of the important representative


decisions to indicate how this doctrine of privilege and itsaccompaniments has been gradual‘y developed in England.For our purpose, the story can be said to begin in the year1677 when the Court of King’s Bench had occasion to dealwith a part of this problem in The Earl of Shaftesbury’scase(1); it develops from time to time when some aspect orthe other of this problem of parliamentary privileges camebefore the courts at Westminster until we reach 1884 whenthe 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 Londonunder an order of the House of Lords which directed theconstable of the Tower of London to receive him and keep himin safe custody during the pleasure of the House "for highcontempts committed against this House; and this shall be asufficient warrant on that behalf." The Earl of Shaftesburytook the matter before the Court of Kings’ Bench on a writof habeas corpus and urged that the committal of the Earlwas unjustified in law, because the general allegation of"high contempts" was(1) 86 E.R. 792. (2) L.R. 12Q.B.D. 721.470too uncertain for the Court to sustain. It was also arguedor his behalf that in respect of the jurisdiction exercisedby the Lords the boundaries of the said jurisdiction werelimited by common law and its exercise was examinable in thecourts. This plea was unanimously rejected by the Courtwhich held that the Court could not question the judgment ofthe House of Lords as a superior court. Rainford C.J. held"that this Court hath no jurisdiction of the cause, andtherefore, the form of the return: is not considerable".According to the learned Chief Justice, the impugnedcommitment was in execution of the judgment given by theLords for the contempt; and therefore, if the Earl bebailed, he would be delivered out of execution; because fora contempt in facie curiae, there is no other judgment forexecution. This case, therefore, accepted the principlethat the House of Lords had jurisdiction to issue a warrantfor contempt and that since the commitment of the personthus committed was in execution of the judgment given by theHouse of Lords, the general warrant issued in that behalfwas not examinable by the King’s Bench Division.Five years thereafter, Jay moved the King’s Bench Divisionfor release from arrest and brought an action againstTopham, the serjeant at Arms, for arresting and detaininghim. Topham pleaded to the jurisdiction of the court, butthe court rejected his plea and judgment was given in favourof Jay. Seven years thereafter, the House of Commonsdeclared that the said judgment was "illegal, a violation ofthe privileges of Parliament, and pernicious to the rightsof Parliament". Acting on this view the two Judges werecalled at the Bar of the House and asked to explain theirconduct. Appearing before the Bar, Sir Francis Pembertonmentioned to the House that he had been out of the Court formore than six years and did not exactly remember what hadhappened in the case. He expressed surprise that he wascalled to the Bar without giving him enough notice as towhat was the charge against him. He also urged that if thedefendant should plead he did arrest him by the command ofthis House, and should plead that to the jurisdiction of theCourt of King’s Bench, he would satisfy the House that sucha plea ought to be overruled. That is why he asked for timeto look into the records of the court to make his furtherpleas. Eventually, the two Judges were ordered to be


imprisoned(1). This incident has been severely criticisedby all prominent writers on constitutional law in Englandand it would be fairly accurate to state(1) 12 State Tr. 822.471that it has been regarded as an unfortunate and regrettableepisode in the history of the House of Commons. It issomewhat ironical that what happened as long ago as 1689 isattempted to be done by the House in the present proceedings14 years after this country has been used to a democraticway of life under a written ConstitutionBefore we part with this case, however, it would be materialto indicate briefly how succeeding Judges have looked atthis conduct of the House of Commons. In Sir FrancisBurdett v. Abbot(1), Lord Ellenborough C.J., observed : "Itis surprising upon looking at the record in that case how aJudge should have been questioned, and committed to prisonby the House of Commons, for having given a judgment, whichno Judge whoever sat in this place could differ from" and headded that the AttorneyGeneral who had appeared in Burdetthad conceded that probably the matter was not so wellunderstood at that time, whereupon Lord Ellenboroughobserved that it was after the Revolution, which makes sucha commitment for such a cause a little alarming; and hepointed out that it must be recollected that Lord C.J.,Pemberton stood under the disadvantage at that period ofhaving been one of the Judges who had sat on the trial ofLord Russel, and therefore did not stand high in popularityafter the Revolution, when the judgment and attainder in hiscase had been recently reversed by Parliament.Similarly, in Stockdale v. Hansard(2), referring to thisincident, Lord Denman C.J. declared : "Our respect andgratitude to the Convention Parliament ought not to blind usto the fact that this sentence of imprisonment was as unjustand tyrannical as any of those acts of arbitrary power forwhich 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 ofAylesbuy, and as such entitled to vote for two Members ofParliament. On the day of the election he requested thedefendants, who were the Returning Officers of the borough,to receive his vote. This the defendants refused to do, andthe plaintiff was not allowed to vote. That led to anaction against the Returning Officers for fraudulently andmaliciously refusing his vote, and it ended in an award fordamages by the jury. In an action before the Queen’s Benchin 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, 1163.472the claim made by the plaintiff was not maintainable. Thisaction succeeded according to the majority decision HoltC.J., dissenting. Justice Gould held that he was of opinionthat the action brought against the defendants was notmaintainable, and in support of his conclusion he gave fourreasons; first, because the defendants are judges of the,and act herein as judges; secondly, because it is aParliamentary matter, with which we have nothing to do;thirdly, the plaintiff’s privilege of voting is not a matterof property or profit, so that the hindrance of it is merelydamnum sine injuria; and fourthly, it relates to the pub-lick, and is a popular offence(1).Holt C.J., however, dissented from the majority opinion andexpressed his views in somewhat strong language. Referringto the opinion expressed by his colleagues that the Court


cannot judge of the matter because it was a Parliamentarything, he exclaimed : "O by all means be very tender ofthat. Besides, it is intricate, and there may becontrariety of opinions. But this matter can never come inquestion in Parliament; for it is agreed that the personsfor whom the plaintiff voted were elected; so that theaction is brought for being deprived of his vote."(1) Heconceded that the court ought not to encroach or enlarge itsjurisdiction; but he thought that the court must determineon a charter granted by the King, or on a matter of customor prescription, when it comes before the court withoutencroaching on the Parliament. His conclusion was that ifit be a matter with the jurisdiction of the Court, "we arebound 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 ofthe House of Commons, is R. v. Paty(4). In that case, Patyand four others were committed to Newgate by warrant issuedby the Speaker of the House. The warrant was a speakingwarrant and showed that the persons detained had committedcontempt of the jurisdiction of the House and open breach ofits known privileges. The validity of this warrant waschallenged by the said persons on the ground that itsuffered from many infirmities. The majority decision inthe case, however, was that the warrant was not reversiblefor the alleged infirmities and that the court had nojurisdiction to deal with the matter, because the House ofCommons 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. 232.473Earl of Shaftesbury’s case(1) and observed all commitmentsfor contempts, even those by this Court, should come to bescanned, they would not hold water. Our warrants here insuch cases are short, as for a contempt, or for a contemptin such a cause. So in Chancery the commitments forcontempts 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 doneby them are to be intended to have been rite acta, and thematter need not be so specially recited in their warrants;by the same reason as we commit people by a rule of Court oftwo lines, and such commitments are held good, because it isto be intended, that we understand what we do."(1) It wouldthus be seen that the majority decision in that caseproceeded on the basis that the House of Commons was a greatCourt and like the superior courts at Westminster, it wasentitled to issue a short general warrant for committingpersons for its contempt. If such a general warrant wasissued and it was challenged before the courts at Westmins-ter, it should be treated with the same respect as isaccorded to similar warrants issued by the superior courts.Holt C.J., however, was not persuaded to take the view thatthe impugned imprisonment was such "as the freeman ofEngland ought to be bound by"; and he added, "for that this,which was only doing a legal act, could not be made illegalby the vote of the House of Commons; for that neither Houseof Parliament, nor both Houses jointly, could dispose of theliberty or property of the subject; for to this purpose theQueen must join : and that it was in the necessity of theirseveral concurrences to such acts, that the great securityof the liberty of the subject consisted."’ (p. 236). This


case, therefore, seems to recognise that it would beinappropriate for the courts at Westminster to examine thevalidity of a general warrant issued by the House ofCommons.That takes us to the decision in Murray’s case(3) . 1750.Murray was committed to prison by the House of Commons forrefusal to kneel, when brought up to the bar of the House.It was declared by the House that the refusal of Murray tokneel was "a most dangerous contempt of privilege". When apetition for habeas corpus was moved before the Court, itwas rejected on the ground that "the House of Commons wasundoubtedly a High Court and that it was agreed on all handsthat they have power to judge of their own privileges, andit need not appear(1) 86 E.R. 792. (3) 95 E.R. 629.(2) 92 E.R. 232, 234.474to us what the contempt was, for if it did appear, we couldnot judge thereof." That is the view expressed by JusticeWright. The learned Judge also added that the House ofCommons was superior to his own Court, and that his Courtcould not admit to bail a person committed for a contempt inany other Court in Westminster Hall. Dennison J. agreed andexpressed his opinion that the Court at Westminster Hall wasinferior to the House of Commons with respect to judging oftheir privileges and contempts against them. This caseagain proceeds on the basis that the House of Commons is asuperior 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 theHouse of Commons, and as Magistrate he had admitted to baila person who had been committed to prison under a warrantissued by the Speaker of the House under the orders of theHouse itself. The House held that Lord Mayor was guilty ofbreach of privilege of the House, and as such he wascommitted to the Tower of London. The validity of thisorder was challenged by Brass Crosby. The challenge,however, failed on the ground that when the House of Commonsadjudges anything to be a contempt or a breach of privilege,their adjudication is a conviction, and their commitment inconsequence is in execution. As Lord C.J. de Grey observed,"no court can discharge or bail a person that is inexecution by the judgment of any other court," and so, hecame to the conclusion that "the House of Commons havingauthority to commit, and that commitment being an execution,the question is what can this Court do ? He gave the answerwith the remark that "it can do nothing when a person is inexecution, by the judgment of a court having a competentjurisdiction; in such case, this Court is not a court ofappeal."(2) Concurring with this view, Blackstone J.observed that the House of Commons is a Supreme Court and hewas impressed by the argument that "it would occasion theutmost confusion, if every Court of this Hall should havepower to examine the commitments of the other Courts of theHall, for contempts; so that the judgment and commitment ofeach respective Court, as to contempts, must be final, andwithout control."(1) It would thus be seen that thisdecision proceeded on the same ground which had by then beenrecognised that the House of Commons was a superior ,courtand 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 warrantissued by the House in respect of such a contempt was


treated as of the same status as a similar warrant issued byother superior courts at Westminster Hall.Before parting with this case, we may incidentally advert tothe comment made by Lord Denman C.J. on this decision. SaidLord Denman : "We know now, as a matter of history, that theHouse of Commons was at that time engaged, in unison withthe Crown, in assailing the just rights of the people. Yetthat learned Judge [Blackstone J.] proclaimed hisunqualified resolution to uphold the House of Commons, eventhough it should have abused its power(1)."The next important decision on this topic is Sir FrancisBurdett’s case(1). This case arose out of an action oftrespass which Sir Francis Burdett commenced against theSpeaker of the House of Commons for breaking and enteringhis house, and imprisoning him in the Tower. The plearaised in defence was that the conduct of the defendant wasjustified by an order of the House for Burdett’s committalafter the House had adjudicated that he had been guilty of acontempt of the House by publishing a libellous andscandalous paper reflecting on the just rights andprivileges of the House. The case was elaborately arguedand as May points out : "This case provides one of theprincipal authorities for the Commons’ power (as LordShaftesbury’s case does for the Lords’) to commit forcontempt(,’)." The warrant in this case was a speakingwarrant and the contempt was the contempt of the House ofCommons. The plea made by Burdett was rejected, but thereasons given for rejecting the plea are significant. LordEllenborough C.J. has considered the question exhaustively.He has observed that upon the authority of precedents inParliament, upon the recognition by statute, and upon thecontinued recognition of all Judges, he should have thoughtthat there was a quantity of authority enough to have putthe question to rest, that is, whether the House of Commonshas the power of commitment for a contempt of theirprivileges ? The House undoubtedly had that power.Proceeding to deal with the matter on that basis, LordEllenborough held that the House was competent to decideboth as to the fact and the effect of the publication whichwas held by it to be libellous, and he added that by analogyto the judgment of a Court of law, (and the judgments ofeither 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. 159.476be put upon a footing less authoritative than those of theordinary Courts of Law), the House must be considered ashaving decided both, as far as respects any questionthereupon which may arise in other Courts.The next question which Lord Ellenborough considered was ifthe warrant itself disclosed a sufficient ground for commit-ment, and an order to the officers of the House to executeit, then the justification for the persons acting under itis made out, " unless any justifiable means appear to havebeen afterwards used to carry the warrant into execution."It appears that in that case it was urged before the Courtthat if the warrant issued appeared to be on the face of itunjustified, illegal or extravagant, the Court would beentitled to entertain the petition for a writ of habeascorpus and grant relief to the petitioner. ,LordEllenborough dealt with this argument and expressed theopinion that if a commitment appeared to be for a contemptof the House of Commons generally, he would neither in thecase of that Court, nor of any other of the Superior Courts,


inquire further; but if it did not profess to commit for acontempt, but for some matter appearing on the return, whichcould by no reasonable intendment be considered as acontempt of the Court committing, but a ground of commitmentpalpably and evidently arbitrary, unjust, and contrary toevery principle of positive law, or national justice, insuch a case the Court must look at it and act upon it asjustice may require from whatever Court it may profess tohave proceeded (pp. 558-60). It is thus clear that evenwhile recognising that it would be inappropriate or improperto examine a general warrant issued by the House of Commons,Lord Ellenborough made it clear that this convention wouldbe subject to the exception that wherever it appeared fromthe return or otherwise that the commitment was palpablyunjust, the court would not be powerless to give relief tothe party.This case went in appeal before the Court of Exchequer andthe decision under appeal was confirmed. It appears thatbefore the appellate decision was pronounced, Lord Eldonproposed to their Lordships that the counsel for thedefendants should not be heard until they received theadvice 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, hadcommitted for the contempt under a warrant, stating suchadjudication generally without the particular circumstances,and the matter were brought before the Court of King’s477Bench, by return to a writ of habeas corpus, the returnsetting forth the warrant, stating such adjudication ofcontempt generally; whether in that case the Court of King’sBench would discharge the prisoner, because the particularfacts and circumstances, out of which the contempt arose,were not set forth in the warrant." After this question washanded to the Judges and they consulted among themselves fora few minutes, Lord Ch. Baron Richards delivered theirunanimous opinion that in such a case the Court of King’sBench would not liberate.(-’) This opinion was accepted andBurdett’s appeal was dismissed without calling on therespondent. In this case, Lord Erskine observed that "theHouse of Commons, whether a Court or not, must like everyother tribunal, have the power to protect itself fromobstruction and insult, and to maintain its dignity andcharacter. If the dignity of the law is not sustained, itssun is set, never to be lighted up again. So much I thoughtit necessary to say, feeling strongly for the dignity of thelaw; and have only to add that I fully concur in the opiniondelivered by the Judges." This case seems to establish theposition that a warrant issued by the House of Commons wastreated 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 JosephStockdale was concerned. This series of cases ultimatelyled to the arrest and imprisonment of the Sheriffs ofMiddlesex. It appears that in one of the reports publishedby the inspectors of prisons under the order of the House ofCommons Stockdale was described in a libellous manner, andso, he brought an action against Messrs. Hansard in 1836.In defence, Hansard pleaded privilege and urged that thereports in question had been published under the orders ofthe House. The Court held that the order of the Housesupplied no defence to the action. Even so, the verdict ofthe jury went against Stockdale on a plea of justificationon the merits, the jury having apparently held that thealleged libellous description of Stockdale was accurate. At


the time when this case was tried, Lord Chief Justice Denmanmade certain observations which were adverse to theprivileges of the House claimed by Hansard. He observed"that the fact of the House of Commons having directedMessrs. Hansard to publish all their parliamentary reportsis no justification for them, or for any book-seller whopublishes a parliamentary report containing a libel againstany man(2)." Incidentally, it may be added that as a(1) 3 E.R. 1289,1301.(2) May’s Parliamentary Practice, p. 159.478result of this controversy, the Parliament ultimately passedthe Parliamentary Papers Act, 1840, which overruled thisview.Not deterred by the adverse verdict of the jury on themerits, Stockdale began another action. Before this actionwas commenced, the House of Commons had passed a resolutionin 1837 reaffirming its privileges, and expressing itsdeliberate view that for any court to assume to decide uponmatters of privilege inconsistent with the determination ofeither House of Parliament was contrary to the law ofParliament. Nevertheless, in this second action brought byStockdale, the House decided to put in a defence ofprivilege. This defence was rejected and a decree waspassed for payment of damages and costs. Even so, the Houseof Commons did not act upon its resolutions and refrainedfrom punishing Stockdale and his legal advisers for havingtaken the matter to a court of law; instead, it decided thatthe damages and costs be paid under the specialcircumstances of the case.Encouraged by this result Stockdale brought a third actionfor another publication of the said report. This timeMessrs. Hansard did not plead; in consequence, the judgmentwent against them in default, and the damages were assessedby a jury, in the Sheriff’s Court, at pound 600. TheSheriffs of Middlesex levied for that amount, but wereserved with the copies of the resolutions passed by theHouse; and that naturally made them cautious in the matter.They, therefore, delayed the payment of the money toStockdale as long as possible, but ultimately the money waspaid by them to Stockdale under an attachment. At thisstage, the House of Commons entered the arena and committedStockdale to the custody of the Serjeant. It called uponthe Sheriffs to refund the money and on their refusal, theywere also committed for contempt. That led to proceedingstaken by the Sheriffs for their release on a writ of habeascorpus. These proceedings, however, failed and that is theeffect of the decision in the Case of the Sheriff ofMiddlesex(1).Naturally, Mr. Seervai has laid considerable emphasis onthis decision. He has pointedly drawn our attention to thefact that the Court found itself powerless to protect theSheriffs of Middlesex against their imprisonment, though theconduct which gave rise to contempt of the House was, interms, the result of an order passed by the Court. LordDenman C.J., who had himself elaborately discussed thequestion and disputed the validity of the claim made by theHouse of Commons in regard to its privi-(1) 113 E.R. 419. 479leges in the case of Stockdale v. Hansard(1), was a party tothis decision. He began his judgment by declaring that hisearlier judgment delivered in the case of Stockdale v.Hansard(1) was correct in all respects. Even so, the plearaised 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 thevalidity of the warrant was impeached and he found thatthere was no substance in those pleas. The learned ChiefJustice considered the previous decisions bearing on thepoint and observed that the test prescribed by Lord Eldon inthe case of Burdett v. Abbot (2) was relevant; and thistest, as we have already seen, proceeds on the assumptionthat like the general warrants for commitment issued by thesuperior courts, the general warrants issued by the House ofCommons on the ground of contempt should not be examined inproceedings for habeas corpus. Littledale J. concurringwith, Lord Denman C.J. said : "if the warant declares thegrounds of adjudication, this Court, in many cases, willexamine into their validity; but, if it does not, we cannotgo into such an inquiry. Here we must suppose that theHouse adjudicated with sufficient reason; and they were theproper judges". Justice Williams, who also concurred withLord Denman, thought it necessary to add’ that "if thereturn, in a case like this, shewed a frivolous cause ofcommitment, as for wearing a particular dress, I shouldagree in the opinion expressed by Lord Ellenborough inBurdett v. Abbot(1), where he distinguishes between acommitment stating a contempt generally, and one appearingby the return to be made on grounds palpably unjust andabsurd. Coleridge J. preferred’ to put his conclusion onthe ground that "[the right of the House of Commons] toadjudicate in this general form in cases of contempt is not-founded on privilege, but rests upon the same grounds onwhich this Court or the Court of Common Pleas might commitfor a contempt without stating a cause in the commitment."It is remarkable that Justice Coleridge thought it necessaryto make it clear that the right to require a general warrantto be respected’ when its validity is challenged in habeascorpus proceedings, is now-,a part of the privilege itself;it is the result of a convention by which such warrantsissued by superior courts of record are usually respected.This decision was pronounced in 1840, and’ can be said toconstitute a landmark in the development of the law on thistopic. Thus, this decision also does not assist Mr. Seervaiin contending that it is a part of the privilege of the"(1) 11 2 E.R. 11 12. (2) 104 E.R. 501.480House to insist that a general warrant issued by it must betreated as conclusive and is not examinable in courts oflaw.The next case is Howard v. Sir William Gosset(1). In thatcase, by a majority decision a warrant issued by the Speakerof the House against Howard was held to be invalid as aresult of certain infirmities discovered in the warrant.Williams J. alone dissented. The warrant in this case was ageneral warrant and Williams J. held that the technicalobjections raised against the validity of the warrant couldnot be entertained, because a general warrant -should betreated as conclusive of the fact that the party againstwhom the warrant had been issued had been properly adjudgedto be guilty of contempt. Since the judgment was pronouncedin favour of the plaintiff Howard, the matter was taken inappeal, and the majority decision was reversed by the Courtof Exchequer. Parke B. considered the several argumentsurged against the validity of the warrant and rejected them.The general ground for the decision of the Court ofExchequer was expressed in these words : "We are clearly ofopinion that at least as much respect is to be shewn, and asmuch 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 theprocess delivered to them, and are therefore protected byit, the officer of the House of Commons is as much bound andequally protected. The House of Commons is a part of theHigh Court of Parliament, which is without question notmerely a Superior but the Supreme Court in this country, andhigher than the ordinary courts of law(1)".Thus, the result of this decision is that the House ofCommons being part of the High Court of Parliament is asuperior Court and the general warrants issued by it cannotbe subjected to the close scrutiny, just as similar warrantsissued by other superior courts of record are held to beexempt from such scrutiny. It would be noticed that theCourt of Exchequer has observed in this case that the Houseof Commons as a part of the High Court of Parliament, is aSupreme Court in this country and is higher than theordinary courts of law; and this recalls the originaljudicial character of the House of Parliament in its earlycareer and emphasises the fact that the House of Lords whichis a part of the House of Parliament still continues to bethe highest court of law in England.The last case in this series to which we ought to refer isthe decision of the Queen’s Bench Division in Bradlaugh v.(1) 116 E.R. 139.(2) 1bid., at 174.481Gossett(1). This decision is not directly relevant ormaterial but since Mr. Seervai appeared to rely on certainstatements of law enunciated by Stephen J., we think itnecessary to refer to it very briefly. In the case ofBradlaugh the Court was called upon to consider whether anaction could lie against the Serjeantat-Arms of the House ofCommons for excluding a member from the House in obedienceto a resolution of the House directing him to do so; and theanswer was in the negative. It appears that the materialresolution of the House of -Commons was challenged as beingcontrary to law, and in fact the Queen’s Bench Divisionproceeded to deal with the claim of Bradlaugh on thefooting that the said resolution may strictly not be inaccordance with the true effect of the relevant provision ofthe law; and yet it was held that the matter in disputerelated to the internal management of the procedure of theHouse of Commons, and so, the Court of Queen’s Bench had nopower to interfere. It was pressed before the Court thatthe resolution was plainly opposed to the relevant provisionof the law. In repelling the validity of this argument,Stephen J., observed that in relation to the rights andresolutions concerning its internal management, the Housestood precisely in the same relation "as we the judges ofthis Court stand in to the laws which regulate the rights ofwhich we are the guardians, and to the judgments which applythem to particular cases; that is to say, they are bound bythe most solemn obligations which can bind men to any courseof conduct whatever, to guide their conduct by the law asthey understand it". The learned Judge then proceeded toadd "If they misunderstand it, or (I apologize for thesupposition) wilfully disregard it, they resemble mistakenor unjust judges; but in either case, there is in myjudgment no appeal from their decision. The law of the landgives no such appeal; no precedent has been or can beproduced in which any Court has ever interfered with theinternal affairs of either House of Parliament, though thecases are no doubt numerous in which the Courts havedeclared the limits of their powers outside of their


respective Houses". That, said the learned Judge, wasenough to justify the conclusion which he had arrived at(1).Mr. Seervai’s argument was that though the resolutionappeared to constitute an infringement of the ParliamentaryOaths Act, the Court refused to give any relief to Brad-laugh, and he suggested that a similar approach should beadopted in dealing with the present dispute before us. Theobvious answer to this contention is that we are not dealingwith any matter relating to the internal management of theHouse in theL. R. 12 Q.B. D. 271.(2) lbid., 286.482present proceedings. We are dealing with the power of theHouse to punish citizens for contempt alleged to have beencommitted by them outside the fourwalls of the House, andthat essentially raises different considerations.Having examined the relevant decisions bearing on the point,it would, we think, not be inaccurate to observe that theright claimed by the House of Commons not to have itsgeneral warrants examined in habeas corpus proceedings hasbeen based more on the consideration that the House ofCommons is in the position of a superior court of record andhas the right like other superior courts of record to issuea general warrant for commitment of persons found guilty ofcontempt. Like the general warrant issued by superiorcourts of record in respect of such contempt, the generalwarrants issued by the House of Commons in similarsituations should be similarly treated. It is on thatground that the general warrants issued by the House ofCommons were treated beyond the scrutiny of the courts inhabeas corpus proceedings. In this connection, we ought toadd that even while recognising the validity of such generalwarrants, Judges have frequently observed that if they weresatisfied upon the return that such general warrants wereissued for frivolous or extravagant reasons, it would beopen to them to examine their validity.Realizing that the position disclosed by the decisions sofar examined by us was not very favourable to the claim madeby him that the conclusive character of the general warrantsis a part of the privilege itself, Mr. Seervai has verystrongly relied on the decisions of the Privy Council whichseem to support his contention, and so, it is now necessaryto turn-to these decisions. The first decision in thisseries is in the case of the Speaker of the LegislativeAssembly of Victoria v. Hugh Glass(1). In that case by theConstitution Act for the Colony of Victoria power had beengiven to the Legislative Assembly of Victoria to commit by ageneral warrant for contempt and breach of privilege of thatAssembly. In exercise of that power, Glass was declared bythe House to have committed contempt and under the Speaker’swarrant, which was in general terms, he was committed tojail. A habeas corpus petition was then moved on his behalfand this petition was allowed by the Chief Justice of theSupreme Court in the Colony, on the ground that theConstitution Statute and the Colonial Act did not conferupon the Legislative Assembly the same powers, privilegesand immunities as were possessed by1) 1869-71] 3 L.R.P.C. 560.483Assembly, the decision of the Supreme Court in the Colonywas reversed and it was held that the relevant Statute andthe Act gave to the Legislative Assembly the same powers andprivileges as the House of Commons had at the time of thepassing of the said Acts.


Having held that the Legislative Assembly had the samepowers as the House of Commons, the Privy Council proceededto consider the nature and extent of these powers. LordCairns who delivered the judgment of the Privy Councilobserved that "[b]eyond all doubt, one of the privileges-andone of the most important privileges of the House ofCommons-is the privilege of committing for contempt; andincidental to that privilege, it has .... been well-established in this country that the House of Commons havethe right to be the judges themselves of what is contempt,and to commit for that contempt by a Warrant, stating thatthe 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 therelevant Constitution Act did not confer on the LegislativeAssembly of Victoria the incidental power of issuing ageneral warrant, and rejected it. "[Their Lordships]consider", said Lord Cairns, "that there is an essentialdifference between a privilege of committing for contemptsuch 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 aWarrant, and then of having that Warrant subjected to reviewby some superior Tribunal, and running the chance whetherthat superior Tribunal will agree or disagree with thedetermination of the inferior Court, and the privilege of abody which determines for itself, without review, what iscontempt, and acting upon the determination, commits forthat contempt, without specifying upon the Warrant thecharacter or the nature of the contempt." According to LordCairns, the latter of the two privileges is a higher andmore important one than the former, and he added that itwould be strange indeed if, under a power to transfer thewhole of the privileges and powers of the House of Commons,that which would only be a part, and a comparativelyinsignificant part, of this privilege and power weretransferred(1).In other words, this decision shows that the Privy Counciltook the view that the power to issue a general warrant andto insist upon the conclusive character of the said warrantit itself(1) [1869-71] 3 L.R.P.C. 572, 573.484a part of the power and privilege of the House. Even so, itis significant that the distinction is drawn between thepower and privilege of an inferior Court and the power andprivilege of a superior Court; and so, the conferment of thelarger power is deemed to have been intended by the relevantprovision of the Constitution Act, because the statusintended to be conferred on the Legislative Assembly ofVictoria was that of the superior Court. In other words,the Legislative Assembly was treated as a superior Court andthe power and privilege conferred on it was deemed toinclude both aspects of the power. Incidentally, it may bepointed out, with respect, that in considering the question,Lord Cairns did not apparently think it necessary to referto the earlier English decisions in which the question aboutthe extent of this power and its nature had been elaboratelyconsidered from time to time.The next Privy Council decision on which Mr. Seervai reliedis Fielding and Others v. Thomas(1). In that case, thequestion about the extent of the power conferred on the NovaScotia House of Assembly fell to be considered, and it washeld by the Privy Council that the said Assembly hadstatutory power to adjudicate that wilful disobedience to


its order to attend in reference to a libel reflecting onits members is a breach of privilege and contempt, and topunish that breach by imprisonment. For our presentpurpose, it is not necessary to refer to the relevantprovisions of the statute on which the argument proceeded,or the facts which gave rise to the action. It is only oneobservation made by Lord Halsbury which must be quoted.Said Lord Halsbury in that case : "The authorities summed upin Burdett v. Abbot(1), and followed in the Case of TheSheriff of Middlesex(1), establish beyond all possibility ofcontroversy the right of the House of Commons of the UnitedKingdom to protect itself against insult and violence by itsown process without appealing to the ordinary courts of lawand without having its process interfered with by thosecourts." (4 ) It is the last part of this observation whichlends some support to Mr. Seervai’s case. All that we needsay about this observation is that it purports to be basedon two earlier decisions which we have already examined, andthat it is not easily reconcilable with the reservationsmade by some of the Judges who had occasion to deal withthis point in regard to their jurisdiction to examine thevalidity of the imprisonment of a petitioner where itappeared 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) [18961L.R.A.C. 600, 609.485of Commons appeared on a return made by the House to bepalpably frivolous or based on extravagant or fantasticreasons.The last decision on which Mr. Seervai relies is the case ofThe Queen v. Richards(1). In that case, the High Court ofAustralia was called upon to construe the provisions of s.49 which are similar to the provisions of Art. 194(3) of ourConstitution. 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 wasthe nature and extent of the powers, privileges andimmunities conferred by s. 49 of the Constitution on theSenate and the House of Representatives in Australia ? Itappears that in that case Fitzpatrick and Browne were takeninto custody by Edward Richards in pursuance of warrantsissued by the Speaker of the House of Representatives of theParliament of the Commonwealth. These warrants were generalin character and they commanded Richards to receive the saidtwo persons into his custody. On June 10, 1955, on theapplication of Fitzpatrick and Browne as prosecutors, theSupreme Court of the Australian Capital Territory (SimpsonJ.) granted an order nisi for two writs of habeas corpusdirected to the said Edward Richards. On June 15, 1955,Simpson J. acting under S. 13 of the Australian CapitalTerritory Supreme Court Act directed that the case be arguedbefore a Full Court of the High Court of Australia. That ishow the matter went before the said High Court.The High Court decided that S. 49 operated independently ofS. 50 and was not to be read down by implications derivedfrom the general structure of the Constitution and the


separation of powers thereunder. Construing S. 49independently of S. 50, the High Court held that the powers,privileges and immunities of the House of Commons at theestablishment of the Commonwealth were conferred on theParliament and since Parliament had made no declarationwithin the meaning of the said section, it was necessary toconsider what the powers of the House of Commons were at therelevant time in order to determine the(1) 92 C.L.R. 157. 486question as to whether a general warrant could be issued byParliament or not, and the High Court held that under S. 49the Australian Parliament could claim the privilege ofjudging what is contempt and of committing therefor. It wasalso held that if the Speaker’s warrant is upon its faceconsistent with the breach of an acknowledged privilege, itis conclusive notwithstanding that the breach of privilegeis stated in general terms. In other words, this decisionundoubtedly supports Mr. Seervai’s contention that a generalwarrant issued by the House in the present case is not,examinable by the High Court.In appreciating the effect of this decision it is necessaryto point out that so far as Australia was concerned, thepoint in issue had been already established authoritativelyby the decisions of the Privy Council in Dill v. Murphy (1)as well as in Hugh Glass(2). In fact, fact, Dixon C.J. hasexpressly referred to this "aspect of the matter.Naturally, he has relied on the observations made by LordCairns in Hugh Glass and has followed the said observationsin deciding the point raised before the High Court ,ofAustralia. That is the basis which was adopted by DixonC.J. in dealing with the question. Having adopted thisapproach, the learned Chief Justice thought it unnecessaryto discuss at length the situation in England, because whatthe situation in England was, had been conclusivelydetermined for the guidance of the Australian courts by theobservations 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 onewhich the courts of law in England have treated as a matterfor their decision, though he has added that "the courts inEngland arrived at that position after a long course ofjudicial -decision not unaccompanied by politicalcontroversy. The law in England was finally settled about1840." This observation obviously refers to the Case of theSheriff of Middlesex("). To quote the words of the learnedChief Justice : "Stated shortly, it is this : it is for thecourts to judge of the existence in either House -ofParliament of a privilege, but, given an undoubtedprivilege, it is for the House to judge of the occasion andof the manner ,of its exercise. The judgment of the Houseis expressed by its resolution and by the warrant of theSpeaker. If the warrant specifies the ground of thecommitment the court may, it would seem, determine whetherit is sufficient in law as a ground to -amount to a breachof 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. 419.487face consistent with a breach of an acknowledged privilegeit is conclusive and it is no objection that the breach ofprivilege is stated in general terms. This statement of lawappears to be in accordance with cases by which it wasfinally 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 justiciablematter and can be adjudicated upon by the High Court. Ifthe warrant is a speaking warrant, the Court can determinewhether it is sufficient in law as a ground to amount tobreach of privilege, though, if the warrant is unspeaking orgeneral, the court cannot go behind it. In our opinion, itwould not be reasonable to treat this decision as supportingthe claim made by the House that the conclusive character ofits general warrant is a part and parcel of its privilege.The learned Chief Justice in fact did not consider thequestion on the merits for himself. He felt that he wasbound by the observations made by Lord Cairns and he hasmerely purported to state what in his opinion is the effectof the decision in the Case of the Sheriff of Middlesex(1).Besides, there is another aspect of this matter which cannotbe ignored. The learned C.J. Dixon was dealing with theconstruction of s. 49 of the Australian Constitution, and asGwyerC.J. has observed in In re The Central Provinces andBerar Act No. XIV of 1938 (2), "there are few subjects onwhich the decisions of other Courts require to be treatedwith greater caution than that of federal and provincialpowers, for in the last analysis the decision must dependupon the words of the Constitution which the Court isinterpreting; and since no two Constitutions are inidentical terms, it is extremely unsafe to assume that adecision on one of them can be applied without qualificationto another." The learned Chief Justice has significantlyadded that this may be so even where the words orexpressions used are the same in both cases for a word or aphrase may take a colour from its context and bear differentsenses accordingly (p. 38).These observations are particularly relevant and appropriatein the context of the point which we are discussing. Thoughthe words used in s. 49 of the Australian Constitution aresubstantially similar to the words used in Art. 194(3),there are obvious points on which the relevant provisions ofour Constitution differ from those of the AustralianConstitution. Take, for instance, Art. 32 of ourConstitution. As we have already noticed, Art. 32 conferson 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. 18.488this Court. In other words, the right to move this Courtfor breach of their fundamental rights is itself afundamental right. The impact of this provision as well asof the provisions contained in Art. 226 on the constructionof the latter part of Article 194(3) has already beenexamined by us, it may be that there are some provisions inthe Australian Constitution which may take in some of therights which are safeguarded under Art. 226 of our Cons-titution. Art. 32 finds no counter-part in the AustralianConstitution. Likewise, there is no provision in theAustralian Constitution corresponding to Art. 211 of ours :and the presence of these distinctive features contributesto make a substantial difference in the meaning anddenotation of similar words used in the two respectiveprovisions. viz., s. 49 of the Australian Constitution andArt. 194(3) of ours. Besides, the declaration to which s.49 refers may not necessarily suffer to the same extent fromthe limitation which would govern a law when it is made bythe Indian Legislatures under the first part of Art. 194(3).These distinctive features of the relevant and materialprovisions of our Constitution would make it necessary to


bear in mind the words of caution and warning which GwyerC.J., uttered as early as 1938. Therefore, we think that itwould not be safe or reasonable to rely too much on theobservations made by Dixon C.J. in dealing with the questionof privileges in the case of Richards(1).Before we part with this topic, however, we may incidentallypoint out that the recent observations made by Lord ParkerC.J. in In re Hunt(1) indicate that even in regard to acommitment for contempt by the superior court of record, thecourt exercising its jurisdiction over a petition filed forhabeas corpus would be ,competent to consider the legalityof the said contempt notwithstanding the fact that thewarrant of commitment is general or unspeaking. Dealingwith the arguments urged by Kenneth Douglas Hunt who hadbeen committed for contempt by WynnParry J., Parker C.J.observed : "It may be that the true view is, and I think thecases support it, that though this Court always has power toinquire into the legality of the committal, it will notinquire whether the power has been properly exercised." He,however, added that in the case before him, he was quitesatisfied that the application ought to fail on the merits.These observations tend to show that in exercising habeascorpus jurisdiction, a court at Westminster has jurisdictionto inquire into the legality of the commitment even thoughthe commitment has been ordered(1) 92 C.L.R.157.(2) [1959] 1 Q.B.D. 378. 489by another superior court of record. If that be the trueposition, it cannot be assumed with certainty that Courts atWestminster would today concede to the House of Commons theright to claim that its general warrants are unexaminable bythem.Even so, let us proceed on the basis that the relevant rightClaimed by the House, of Commons is based either on theground that as a part of the High Court of Parliament, theHouse of Commons is a superior court of record and as such,a general Warrant for commitment issued by it for contemptis treated as ,conclusive by courts at Westminster Hall; orin course of time the right to claim a conclusive characterfor such a general warrant became an incidental and integralpart of the privilege itself. The question whichimmediately arises is: can this right be deemed to have beenconferred on the House in the present proceedings under thelatter part of Art. 194(3) ?Let us first take the basis relating to the status of theHouse of Commons as a Superior Court of Record. Can theHouse claim such a status by any legal fiction introduced byArt. 194(3) ? In our opinion, the answer to this questioncannot be in the affirmative. The previous legislativehistory in this matter does not support the idea that ourState Legislatures were superior Courts of Record under theConstitution Act of 1935. Section 28 of the said Act whichdealt with the privileges of the Federal Legislature isrelevant on this point. S. 28(1) corresponds to Art. 194(3)of the present Constitution. Section 28(2) provides that inother respects, the privileges of members of the Chambersshall be such as may from time to time be defined by Act ofthe Federal Legislature and, until so defined, shall be suchas were immediately before the establishment of theFederation enjoyed by members of the Indian Legislature. itis not disputed that the members of the Indian Legislaturecould not have claimed the status of being members of asuperior Court of Record prior to the Act of 1935. Section28(3) prescribes that nothing in any existing Indian Act,


and, notwithstanding anything in the foregoing provisions ofthis section, nothing in this Act, shall be construed asconferring, or empowering the Federal Legislature to confer,on either Chamber or on both Chambers sitting together, oron any committee or officer of the Legislature, the statusof a Court, or any punitive or disciplinary powers otherthan a power to remove or exclude persons infringing the-rules or standing orders, or otherwise behaving in adisorderly manner. Section 28 (4) is also relevant for ourpurpose. It -provides that provision may be made by an Actof the Federal Legislature for the punish-490ment, on conviction before a Court, of persons who refuse togive evidence r produce documents before a committee of aChamber when duly required by the Chairman of the committeeso to do There can be no doubt that these provisions clearlyindicate that the Indian Legislature could not have claimedthe power to punish for contempt committed outside the four-walls of its Legislative Chamber. Section 71 of the sameAct deals with the Pro vincial Legislatures and containssimilar provisions in its clauses (2), (3) and (4).After the Indian Independence Act, 1947 (1 0 & 11 Geo. VIc. 20) was passed, this position was altered by theamendments made in the Government of India Act, 1935 byvarious amendment orders. The result of the amendmentorders including Third Amendment Order, 1948 was that sub-sections (3) and (4) of section 28 of the said Act weredeleted and sub-section (2) was amended. The effect of thisamendment was that the members of the Federal Chambers ofLegislature could until their privileges were defined by Actof Federal Legislature claim the privileges enjoyed by themembers of the House of Commons which were in existenceimmediately before the establishment of the Federation. Itis, however, remarkable that the corresponding subsections(3) and (4) of section 71 were retained. The question as towhether the result of the deletion of sub-sections (3) and(4) and the amendment of sub-section (2) of S. 28 was toconfer on the Federal Legislature the same status as that ofthe House of Commons, does not call for our -decision in thepresent Reference. Prima facie, it may conceivably appearthat the conferment of the privileges of the members of theHouse of Commons on the members of the Federal Legislaturecould not necessarily make the Federal Legislature the Houseof Commons for all purposes; but that is a matter which weneed not discuss and decide in the present proceedings. Theposition with regard to the Provincial Legislatures at therelevant time is, however, absolutely clear and there wouldobviously be no scope for the argument that at the time whenthe Constitution was passed the Provincial Legislaturescould claim the status of the House of Commons and as suchof a superior Court of Record. That is the constitutionalbackground of Art. 194(3) insofar as the ProvincialLegislatures are concerned. Considered in the light of thisbackground, it is difficult to accept the argument that theresult of the provisions contained in the latter part ofArt. 194(3) was intended to be to confer on the StateLegislatures in India the status of a superior Court ofRecord.491In this connection, it is essential to bear in mind the factthat the status of a superior Court of Record which wasaccorded to the House of Commons, is based on historicalfacts to which we have already referred. It is a fact ofEnglish history that the parliament was discharging judicialfunctions in its early career. It is a fact of both


historical and constitutional history in England that theHouse of Lords still continues to be the highest Court oflaw in the country. It is a fact of constitutional historyeven today that both the Houses possess powers ofimpeachment and attainder. It is obvious, we think, thatthese historical facts cannot be introduced in India by anylegal fiction. Appropriate legislative provisions dooccasionally introduce legal fictions, but there is a limitto the power of law to introduce such fictions. Law canintroduce fictions as to legal rights and obligations and asto the retrospective operation of provisions made in thatbehalf; but legal fiction can hardly introduce historicalfacts from one country to another.Besides, in regard to the status of the superior Court ofRecord which has been accorded to the House of Commons,there is another part of English history which it isnecessary to remember. The House of Commons had to fightfor its existence against the King and the House of Lords,and the Judicature was regarded by the House of Commons as acreature of the King and the Judicature was obviouslysubordinate to the House of Lords which was the mainopponent of the House of Commons. This led to fiercestruggle between the House of Commons on the one hand, andthe King and the House of Lords on the other. There is nosuch historical background in India and there can be nohistorical justification for the basis on which the House ofCommons struggled to deny the jurisdiction of the Court;that is another aspect of the matter which is relevant inconsidering the question as to whether the House in thepresent case can claim the status of a superior Court ofRecord.There is no doubt that the House has the power to punish forcontempt committed outside its chamber, and from that pointof view it may claim one of the rights possessed by a Courtof Record. A Court of Record, according to Jowitt’sDictionary of English Law, is a court whereof the acts andjudicial proceedings are enrolled for a perpetual memory andtestimony, and which has power to fine and imprison forcontempt of its authority. The House, and indeed all theLegislative Assemblies in India never discharged anyjudicial functions and their historical and constitutionalbackground does not support the claim that they can be492regarded as Courts of Record in any sense. If that be so,the very basis on which the English Courts agreed to treat ageneral warrant issued by the House of Commons on thefooting that it was a warrant issued by a superior Court ofRecord, is absent in the present case, and so, it would beunreasonable to contend that the relevant power to claim aconclusive character for the general warrant which the Houseof Commons, by agreement, is deemed to possess, is vested inthe House. On this view of the matter, the claim made bythe House must be rejected.Assuming, however, that the right claimed by the House canbe treated as an integral part of the privileges of theHouse of Commons, the question to consider would be whethersuch a right has been conferred on the House by the latterpart of Art. 194(3). On this alternative hypothesis, it isnecessary to consider whether this part of the privilege isconsistent with the material provisions of our Constitution.We have already referred to Articles 32 and 226. Let ustake Art. 32 because it emphatically brings out thesignificance of the fundamental right conferred on thecitizens of India to move this Court if their fundamentalrights are contravened either by the Legislature or the


Executive. Now, Art. 32 makes no exception in regard to anyencroachment at all, and it would appear illogical tocontend that even if the right claimed by the House maycontravene the fundamental rights of the citizen, theaggrieved citizen cannot successfully move this Court underArt. 32. To the absolute constitutional right conferred onthe citizens by Art. 32 no exception can be made and noexception is intended to be made by the Constitution byreference to any power or privilege vesting in theLegislatures of this country.As we have already indicated we do not propose to enter intoa general discussion as to the applicability of all thefundamental rights to the cases where legislative powers andprivileges can be exercised against any individual citizenof this country, and that we are dealing with this matter onthe footing that Art. 19 (1) (a) does not apply and Art. 21does. If an occasion arises, it may become necessary toconsider whether Art. 22 can be contravened by the exerciseof the power or privilege under Art. 194(3). But, for themoment, we may consider Art. 20. If Art. 21 applies, Art.20 may conceivably apply, and the question may arise, if acitizen complains that his fundamental right had beencontravened either under Art. 20 or Art. 21, can he or canhe not move this Court under Art. 32 ? For the purpose ofmaking the point which we are discussing, the applicabilityof Art. 21 itself would493be enough. If a citizen moves this Court and complains thathis fundamental right under Art. 21 had been contravened, itwould plainly be the duty of this Court to examine themerits of the said contention, and that inevitably raisesthe question as to whether the personal liberty of thecitizen has been taken away according to the procedureestablished by law. In fact, this question was actuallyconsidered by this Court in the case of Pandit Sharma(").It is true that the answer was made in favour of thelegislature; but that is wholly immaterial for the purposeof the present discussion. If in a given case, theallegation made by the citizen is that he has been deprivedof his liberty not in accordance with law, but forcapricious or mala fide reasons, this Court will have toexamine the validity of the said contention, and it would beno answer in such a case to say that the warrant issuedagainst the citizen is a general warrant and a generalwarrant must stop all further judicial inquiry and scrutiny.In our opinion, therefore, the impact of the fundamentalconstitutional right conferred on Indian citizens by Art. 32on the construction of the latter part of Art. 194(3) isdecisively against the view that a power or privilege can beclaimed by the House though it may be inconsistent with Art.21. In this connection, it may be relevant to recall thatthe rules which the House has to make for regulating itsprocedure and the conduct of its business have to be subjectto the provisions of the Constitution under Art. 208(1).Then, take the case of Art. 211 and see what its impactwould be on the claim of the House with which we aredealing. If the claim of the House is upheld, it means thatthe House can issue a general warrant against a Judge and nojudicial scrutiny can be held in respect of the validity ofsuch a warrant. It would indeed be strange that theJudicature should be authorised to consider the validity ofthe legislative acts of our Legislatures, but should beprevented from scrutinising the validity of the action ofthe legislatures trespassing on the fundamental rightsconferred 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 judicialindependence would be exposed to very grave jeopardy; and sothe impact of Art. 211 on the interpretation of Art. 194(3)in respect of this particular power is again decisivelyagainst the contention raised by the House.If the power of the High Courts under Art. 226 and theauthority of this Court under Art. 32 are not subject to anyexceptions, then it would be futile to contend that acitizen cannot move the(1) [1959] Supp. 1 S.C.R. 806.494High Courts or this Court to invoke their jurisdiction evenin, cases where his fundamental rights have been violated.The existence of judicial power in that behalf mustnecessarily and inevitably postulate the existence of aright in the citizen to move the Court in that behalf;otherwise the power conferred on the High Courts and thisCourt would be rendered virtually meaningless. Let it notbe forgotten that the judicial power conferred on the HighCourts and this Court is meant for the protection of thecitizens’ fundamental rights, and so, in the existence ofthe said judicial power itself is necessarily involved theright of the citizen. to appeal to the said power in aproper case.In In re Parliamentary Privilege Act, 1770(1), the PrivyCouncil was asked to consider whether the House of Commonswould be acting contrary to the Parliamentary Privilege Act,1770, if it treated the issue of a writ against a Member ofParliament in respect of a speech or proceeding by him inParliament as a breach of its privileges. The said questionhad given rise to some doubt, and so, it was referred to thePrivy Council for its opinion. The opinion expressed by thePrivy Council was in favour of Parliament. Confining itsanswer to the said limited question, the Privy Council tookthe precaution of adding that "they express no opinionwhether the proceedings referred to in the introductoryparagraph were ’a proceeding in Parliament, a question notdiscussed before them, nor on the question whether the mereis-sue of a writ would in any circumstances be a breach ofprivilege." "In taking this course", said Viscount Simondswho spoke for the Privy Council, "they have been mindful ofthe inalienable right of Her Majesty’s subjects to haverecourse to her courts of law for the remedy of their wrongsand would not prejudice the hearing of any cause in which aplaintiff sought relief." The inalienable right to whichViscount Simonds referred is implicit in the provisions ofArt. 226 and Art. 32, and its existence is clearly incon-sistent with the right claimed by the House that a generalwarrant should be treated as conclusive in all courts oflaw; it would also be equally inconsistent with the claimmade by the House that Keshav Singh has committed contemptby moving the High Court under Art. 226.In this connection, it would be interesting to refer to aresolution passed by the House of Lords in 1704. By thisresolution, it was declared that deterring electors fromprosecuting actions in the ordinary courts of law, wherethey are deprived of their right of voting, and terrifyingattorneys, solicitors, counsellors, and serjeants-at-law,from soliciting, prosecuting and pleading in such cases, byvoting their so doing to be a breach of privilege of the(1) [1958] A.C. 331‘ 495House of Commons, is a manifest assuming of power to controlthe law, to hinder the course of justice, and subject the


property of Englishmen to the arbitrary votes of the Houseof Commons. This was in answer to the resolution passed bythe House of Commons in the same year indicating that theHouse would treat the conduct of any person in moving thecourt for appropriate reliefs in matters mentioned by theresolution of the House as amounting to its contempt. Theseresolutions and counterresolutions merely illustrate thefierce struggle which was going on between the House ofCommons and the House of Lords during those turbulent days;but the interesting part of this dispute is that if aquestion had gone to the House of Lords in regard to thecompetence of the House of Commons to punish a man forinvoking the jurisdiction of the ordinary courts of law, theHouse of Lords would undoubtedly have rejected such a claim,and that was the basic apprehension of the House of Commonswhich was responsible for its refusal to recognise thejurisdiction of the courts which in the last analysis weresubordinate to the House of Lords.Section 30 of the Advocates Act, 1961 (25 of 1961) conferson all Advocates the statutory right to practise in allcourts including the Supreme Court, before any tribunal orperson legally authorised to take evidence, and before anyother authority or person before whom such advocate is by orunder any law for the time being in force entitled topractise. Section 14 of the Bar Councils Act recognises asimilar right. If a citizen has the right to move the HighCourt or the Supreme Court against the invasion of hisfundamental rights, the statutory right of the advocate toassist the citizen steps in and helps the enforcement of thefundamental rights of the citizen. It is hardly necessaryto emphasise that in the enforcement of fundamental rightsguaranteed to the citizens the legal profession plays a veryimportant and vital role, and so, just as the right of theJudicature to deal with matters brought before them underArt. 226 or Art. 32 cannot be subjected to the powers andprivileges of the House under Art. 194(3), so the rights ofthe citizens to move the Judicature and the rights of theadvocates to assist that process must remain uncontrolled byArticle 194(3). That is one integrated scheme for enforcingthe fundamental rights and for sustaining the rule of law inthis country. Therefore, our conclusion is that theparticular right which the House claims to be an integralpart of its power or privilege is inconsistent with thematerial provisions of the Constitution and cannot be deemedto have been included under the latter part of Art. 194(3).496In this connection, we ought to add that there is nosubstance in the grievance made by Mr. Seervai that KeshavSingh acted illegally in impleading the House to the habeascorpus petition filed by him before the Lucknow Bench. Inour opinion, it cannot be said that the House was improperlyjoined by Keshav Singh, because it was open to him to jointhe House on the ground that his commitment was based on theorder passed by the House, and in that sense the House wasresponsible for, and had control over, his commitment (videThe King v. The Earl of Crewe, Ex parte Sekgome(1) and TheKing v. Secretary of State for Home Affairs, Ex parteO’brien(2). Besides, the fact that Keshav Singh joined theHouse to his petition, can have no relevance or materialityin determining the main question of the power of the Houseto 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 cruxof the matter is the, construction of the latter part ofArt. 194(3), and in the light of the assistance in which we


must derive from the other relevant and material provisionsof the Constitution, it is necessary to hold that theparticular power claimed by the House that its generalwarrants must be held to be conclusive, cannot be deemed tobe the subject-matter of the latter part of Art. 194(3). Inthis connection, we may incidentally observe that it issomewhat doubtful whether the power to issue a generalunspeaking warrant claimed by the House is consistent withs. 554(2)(b) and s. 555 of the Code of Criminal Procedure.It appears that in England, general warrants are issued inrespect of commitment for contempt by superior courts ofrecord, and the whole controversy on this point, therefore,rested on the theory that the right to issue a generalwarrant which is recognised in respect of superior Courts ofRecord must be conceded to the House of Commons, because asa part of the High Court of Parliament it is itself asuperior Court of Record.Before we part with this topic, there are two generalconsiderations to which we ought to advert. It has beenurged before us by Mr. Seervai that the right claimed by theHouse to issue a conclusive general warrant in respect ofcontempt is an essential right for the effective functioningof the House itself, and he has asked us to deal with thismatter from this point of view. It is true that this rightappears to have been recognised by courts in England byagreement or convention or by considerations of comity; butwe think it is strictly not accurate to say that every(1) [1910] 2 K.B. 576.(2) [1923] 2 K.B. 361.497democratic legislature is armed with such a power. Takethe, case of the American Legislatures. Article 1, section5 of the American Constitution does not confer on theAmerican Legislature such a power at all. it provides thateach House shall be the judge of the Elections, Returns andQualifications of its own Members, and a majority of eachshall constitute a quorum to do business; but a smallernumber may adjourn from day to day, and may be authorised tocompel the attendance of absent Members, in such manner, andunder such penalties as each House may provide. Each Housemay determine the Rules of its proceedings, punish itsMembers for disorderly behaviour, and, with the concurrenceof two-thirds, expel a Member. Contempt committed outsidethe four-walls of the legislative chamber by a citizen whois not a Member of the House seems to be outside thejurisdiction of the American Legislature’ As Willis hasobserved, punishment for contempt is clearly a judicialfunction; yet in the United States, Congress may exercisethe power to punish for contempt as it relates to keepingorder among its own members, to compelling their attendance,to protecting from assaults or disturbances by others(except by slander and libel), to determining election casesand impeachment charges, and to exacting information aboutother departments in aid of the legislative function(1).Nobody has ever suggested that the American Congress has notbeen functioning effectively because it has not been armedwith the particular power claimed by the House before us.In India, there are several State Legislatures in additionto the Houses of Parliament. If the power claimed by theHouse before us is conceded, it is not difficult to imaginethat its exercise may lead to anomalous situations. If byvirtue of the absolute freedom of speech conferred on theMembers of the Legislatures, a Member of one Legislaturemakes a speech in his legislative chamber which anotherlegislative chamber regards as amounting to its contempt,


what would be the position ? The latter legislative chambercan issue a general warrant and punish the Member alleged tobe in contempt, and a free exercise of such power may leadto very embarrassing situations. That is one reason why theConstitution-makers thought it necessary that theLegislatures should in due course enact laws in respect oftheir powers, privileges and immunities, because they knewthat when such laws are made, they would be subject to thefundamental rights and would be open to examination by thecourts in India. Pending the making of such laws, powers,privileges and immunities were conferred by the latter partof Art. 194(3). As we have already(1) Wills, constitutional Law, p. 145.498emphasised, the construction of this part of the article iswithin the jurisdiction of this Court, and in construingthis part, we have to bear in mind the other relevant andmaterial provisions of the Constitution. Mr. Seervai nodoubt invited our attention to the fact that the Committeesof Privileges of the Lok Sabha and the Council of Stateshave adopted a Report on May 22, 1954 with a view to avoidany embarrassing or anomalous situations resulting from theexercise of the legislative powers and privileges againstthe members of the respective bodies, and we were told thatsimilar resolutions have been adopted by almost all theLegislatures in India. But these are matters of agreement,not matters of law, and it is not difficult to imagine thatif the same political party is not in power in all theStates, these agreements themselves may not prove to beabsolutely effective. Apart from his aspect of the matter,in construing the relevant clause of Art. 194(3), theseagreements can play no significant part.In the course of his arguments Mr. Seervai laid considerableemphasis on the fact that in habeas corpus proceedings, theHigh Court had no jurisdiction to grant interim bail. Itmay be conceded that in England it appears to be recognisedthat in regard to habeas corpus proceedings commencedagainst orders of commitment passed by the House of Commonson the ground of ,contempt, bail is not granted by courts.-As a matter of course, during the last century and more insuch habeas corpus proceedings returns are made according tolaw by the House of Commons, but "the general rule is thatthe parties who stand committed for contempt cannot beadmitted to bail." But it is difficult to accept theargument that in India the position is exactly the same inthis matter. If Art. 226 confers jurisdiction on the Courtto ,deal with the validity of the order of commitment eventhough the commitment has been ordered by the House, how canit be said that the Court has no jurisdiction to make aninterim order in such proceedings? As has been held by thisCourt in State of Orissa v. Madan Gopal Rungta, andOthers("), an interim relief can be granted only in aid of,and as ancillary to, the main relief which may be availableto the party on final determination of his rights in a suitor proceeding. Indeed, as Maxwell has observed, when an Actconfers a jurisdiction, it impliedly also grants the powerof doing all such acts, or employing such means, as areessentially necessary to its execution(2). That being so,the argument based on the relevant provisions of theCriminal Procedure(1) [1952] S.C.R. 28.(2) Maxwell on Interpretation of Statutes, 11th ed., p.350.499Code 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 ques-tion of jurisdiction and are not concerned with thepropriety or reasonableness of the exercise of suchjurisdiction. Besides, in the case of a superior Court ofRecord, it is for the court to consider whether any matterfalls within its jurisdiction or not. Unlike a court oflimited jurisdiction, the superior Court is entitled todetermine for itself questions about its own jurisdiction."Prima facie", says Halsbury, "no matter is deemed to bebeyond the jurisdiction of a superior court unless it isexpressly shown to be so, while nothing is within thejurisdiction of an inferior court unless it is expresslyshown on the face of the proceedings that the particularmatter is within the cognizance of the particularcourt."(1). We cannot, therefore, accede to the propositionthat in passing the order for interim bail, the High Courtcan be said to have exceeded its jurisdiction with theresult that the order in question is null and void.Besides, the validity of the order has no relation whateverwith the question as to whether in passing the order, theJudges have committed contempt of the House.There is yet one more aspect of this matter to which we mayincidentally refer. We have already noticed that in thepresent case, when the habeas corpus petition was presentedbefore the Lucknow Bench at 2 P.m. on March 19, 1964, bothparties. appeared by their respective Advocates and agreedthat the application should be taken up at 3 P.m. the sameday, and yet the House which was impleaded to the writpetition and the other respondents to it for whom Mr. Kapurhad appeared at the earlier stage, were absent at that time.That is how the Court directed that notice on the petitionshould be issued to the respondents and released thepetitioner on bail subject to the terms and conditions whichhave already been mentioned; and it is this latter order ofbail which has led to the subsequent developments. In otherwords, before taking the precipitate action of issuingwarrants against the Judges of the Lucknow Bench, the Housedid not conform to the uniform practice which the House ofCommons has followed for more than a century past and didnot instruct its lawyer either to file a return or to askfor time to do so, and to request that the Court should stayits hands until the return was filed. It is not disputedthat whenever commitment orders passed by the House ofCommons are challenged in England before(1) 72 I.A. 120.(2) Halsbury’s Laws of England, vol. 9, p. 349.500the Courts at Westminster, the House invariably makes areturn and if the warrant issued by it is general andunspeaking, it is so stated in the return and the warrant isproduced. If this course had been adopted in the presentproceedings, it could have been said that the House inexercising its powers and privileges, conformed to thepattern which, by convention, the House of Commons hasinvariably followed in England during the last century andmore; but that was not done; and as soon as the House knewthat an order granting bail had been passed, it proceeded toconsider whether the Judges themselves were not in contempt.On these narrow facts, it would be possible to take the viewthat no question of contempt committed by the Judges arises.In view of the fact that Mr. Kapur had appeared before theCourt at 2 P.m. on behalf of all the respondents and hadagreed that the matter should be taken up at 3 P.m., it washis 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 theHouse. If the House did not instruct Mr. Kapur to take thisstep and the Court had no knowledge as to why Mr. Kapur didnot appear, it is hardly fair to blame the Court for havingproceeded to issue notice on the petition and granted bailto the petitioner. In these proceedings it is not necessaryfor us to consider what happened between Mr. Kapur and theHouse and why Mr. Kapur did not appear at 3 P.m. torepresent the House and the other respondents. The failureof Mr. Kapur to appear before the Court at 3 P.m. hasintroduced an unfortunate element in the proceedings beforethe Court and is partly responsible for the order passed bythe Court. One fact is clear, and that is that at the timewhen the Court issued notice and released the petitioner onbail, it had no knowledge that the warrant under which thepetitioner had been sentenced was a general warrant and nosuggestion was made to the Court that in the case of such awarrant the Court had no authority to make any order ofbail. This fact cannot be ignored in dealing with the caseof the House that the Judges committed contempt in releasingthe petitioner on bail.But we ought to make it clear that we do not propose to baseour answers on this narrow view of the matter, becausequestions 3 and 5 are broad enough and they need answers ona correspondingly broad basis. Besides, the materialquestions arising from this broader aspect have been fullyargued before us, and it is plain that in making the presentReference, the President desires that we should render ouranswers to all the questions and not ,exclude from ourconsideration any relevant aspects on the ground501that these aspects would not strictly arise on the specialfacts which have happened so far in the present proceedings.In conclusion,, we ought to add that throughout our discus-sion we have consistently attempted to make it clear thatthe main point which we are discussing is the right of theHouse to claim that a general warrant issued by it inrespect of its contempt alleged to have been committed by acitizen who is not a Member of the House outside the four-walls of the House, is conclusive, for it is on that claimthat the House has chosen to take the view that the Judges,the Advocate, and the party have committed contempt byreference to their conduct in the habeas corpus petitionpending before the Lucknow Bench of the Allahabad HighCourt. Since we have held that in the present case nocontempt was committed either by the Judges, or theAdvocate, or the party respectively, it follows that it wasopen to the High Court of Allahabad, and indeed it was itsduty, to entertain the petitions filed before it by the twoJudges and by the Advocate, and it was within itsjurisdiction to pass the interim orders prohibiting thefurther execution of the impugned orders passed by theHouse.Before we part with this topic, we would like to refer toone aspect of the question relating to the exercise of powerto punish for contempt. So far as the courts are concerned,Judges always keep in mind the warning addressed to them byLord Atkin in Andre Paul v. Attorney-General of Trinidad(1).Said Lord Atkin "Justice is not a cloistered virtue; shemust be allowed to suffer the scrutiny and respectful eventhough out-spoken comments of ordinary men." We ought neverto forget that the power to punish for contempt large as itis, must always be exercised cautiously, wisely and withcircumspection. Frequent or indiscriminate use of thispower in anger or irritation would not help to sustain the


dignity or status of the court, but may sometimes affect itadversely. Wise Judges never forget that the best way tosustain the dignity and status of their office is to deserverespect from the public at large by the quality of theirjudgments, the fearlessness, fairness and objectivity oftheir approach, and by the restraint, dignity and decorumwhich they observe in their judicial conduct. We venture tothink that what is true of the Judicature is equally true ofthe Legislatures.Having thus discussed all the relevant points argued beforeus and recorded our conclusions on them, we are now in aposition(1) A.I.R. 1936 P.C. 141.502to render our answers to the five questions referred to usby 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 bythe President under Art. 143 of the Constitution. Theoccasion for the reference was a sharp conflict that aroseand still exists between the Vidhan Sabha (LegislativeAssembly) of the Uttar Pradesh State Legislature,hereinafter referred to as the Assembly, and the High Courtof that State. That conflict arose because the High Courthad ordered the release on bail of a person whom theAssembly had committed to prison for contempt. The Assemblyconsidered that the action of the Judges making the orderand of the lawyer concerned in moving the High Courtamounted to contempt and started proceedings against them onthat basis, and the High Court, thereupon, issued ordersrestraining the Assembly and its officers from taking stepsin implementation of the view that the action of the Judgesand the lawyer and also the person on whose behalf the HighCourt had been moved amounted to contempt.A very large number of parties appeared on the reference andthis was only natural because of the public importance ofthe question involved. These parties were divided into twobroad groups, one supporting the Assembly and the other, theHigh Court.I shall now state the actual facts which gave rise to theconflict. The Assembly had passed a resolution that areprimand be administered to one Keshav Singh for havingcommitted contempt of the Assembly by publishing a certainpamphlet libelling one of its members. No question as tothe legality of this resolution arises in this case and weare concerned only with what followed. Keshav Singh who wasa resident of Gorakhpar, in spite of being repeatedlyrequired to do so, failed to appear before the Assemblywhich held its sittings in Lucknow, to receive the reprimand504alleging inability to procure money to pay the fare for thenecessary railway journey. He was thereupon brought underthe custody of the Marshal of the Assembly in execution of awarrant issued by the Speaker in that behalf and produced atthe Bar of the House on March 14, 1964. He was asked hisname by the Speaker repeatedly but he would not answer anyquestion at all. He stood there with his back to theSpeaker showing great disrespect to the House and would notturn round to face the Speaker though asked to do so. Thereprimand having been administered, the Speaker brought tothe notice of the Assembly a letter dated March 11, 1964,written by Keshav Singh to him, in which he stated that heprotested against the sentence of reprimand and hadabsolutely no hesitation in calling a corrupt man corrupt,


adding that the contents of his pamphlet were correct andthat a brutal attack had been made on democracy by issuingthe "Nadirshahi Firman" (warrant) upon him. Keshav Singhadmitted having written that letter. The Assembly thereuponpassed a resolution that "Keshav Singh be sentenced toimprisonment for seven days for having written a letterworded in language which constitutes ,contempt of the Houseand his misbehaviour in view of the House." A generalwarrant was issued to the Marshal of the House and theSuperintendent, District Jail, Lucknow which stated,"Whereas the .... Assembly has decided .... that Shri KeshavSingh be sentenced to simple imprisonment for seven days forcommitting the offence of the contempt of the Assembly, itis accordingly ordered that Keshav Singh be detained in theDistrict Jail, Lucknow for a period of seven days." Thewarrant did not state the facts which constituted thecontempt. Keshav Singh was thereupon taken to the Jail onthe same day and kept imprisoned there. On March 19, 1964,B. Solomon, an advocate, presented a petition to a Bench ofthe High Court of Uttar Pradesh then constituted by Beg andSahgal JJ., which sat in Lucknow, for a writ of habeascorpus for the release of Keshav Singh alleging that he hadbeen deprived of his personal liberty without any authorityof law and that this detention was mala fide. This Benchhas been referred to as the Lucknow Bench. This petitionwas treated as having been made under Art. 226 of theConstitution and S. 491 of the Code of Criminal Procedure.On the same date the learned Judges made an order thatKeshav Singh be released on bail and that the petition beadmitted and notice be issued to the respondents named init. Keshav Singh was promptly released on bail. This orderinterfered with the sentence of imprisonment passed by theHouse by permitting Keshav Singh to be released before hehad served the full term of his sentence. On March 21,1964, the, Assembly505passed a resolution stating that Beg J., Sahgal J., B.Solomon and Keshav Singh had committed contempt of the Houseand that Keshav Singh be immediately taken into custody andkept confined in the District Jail for the remaining term ofhis imprisonment and that Beg J., Sahgal J. and B. Solomonbe brought in custody before the House, and also that KeshavSingh be brought before the House after he had served theremainder of his sentence. Warrants were issued on March23. 1964 to the Marshal of the House and the Commissioner ofLucknow for carrying out the terms of the resolution. Onthe same day, Sahgal J. moved a petition under Art. 226 ofthe Constitution in the High Court of Uttar Pradesh atAllahabad for a writ of certiorari quashing the resolutionof the Assembly of March 21, 1964 and for other necessary writsrestraining the Speaker and the Marshal of the Assembly andthe State Government from implementing that resolution andthe execution of the orders issued pursuant to theresolution. The petition however did not mention that thewar.rants had been issued. That may have been because thewarrants 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 Courtexcepting Sahgal and Beg JJ. and they passed an order on thesame day directing that the implementation of the resolutionbe stayed. Similar petitions were presented by B. Solomonand Beg J. and also by other parties, including the AvadhBar Association, and on some of them similar orders, as onthe petition of Sahgal J., appear to have been made. OnMarch 25, 1964, the Assembly recorded an observation that by


its resolution of March 21, 1964 it was not its intention todecide that Beg J., Sahgal J., B. Solomon and Keshav Singhhad committed contempt of the House without giving them ahearing, but it had required their presence before the Housefor giving them an opportunity to explain their position andit resolved that the question may be decided after giving anopportunity to the above-named persons according to therules to explain their conduct. Pursuant to thisresolution, notices were issued on March 26, 1964 to Beg J.,Sahgal J. and B. Solomon informing them that "they mayappear before the Committee at 10 A.M. on April 6,1964.............. to make-their submissions". The warrantsissued on March 23, 1964, which had never been executed,were withdrawn in view of these notices. The presentreference was made on March 26. 1964 and thereupon theAssembly withdrew the notices of March 26, 1964 stating thatin view of the reference the two Judges and Solomon andKeshav Singh need not appear before the Privilege Committeeas required.506These ’facts are set out in the recitals contained in theorder of reference. There is however one dispute as to thestatement of facts in the recitals. It is there stated thatthe Assembly resolved on March 21, 1964 that the two Judges,Solomon and Keshav Singh "committed, by their actionsaforesaid, contempt of the House." The words "actionsaforesaid" referred to the presentation of the petition ofKeshav Singh of March 19, 1964 and the order made thereon.It is pointed out on behalf of the Assembly that theresolution does not say what constituted the contempt. Thiscontention is correct.The main question ’in this reference is whether the Assemblyhas. the privilege of committing a person to prison forcontempt by general warrant, that is, without stating thefacts, which constituted the contempt, and if it does so,have the courts of law the power to examine the legality ofsuch a committal’? In other words if there is such aprivilege, does it take precedence over the fundamentalrights of the detained citizen. It is said on behalf of theAssembly that it has such a privilege and the interferenceby the court in the present case was without jurisdiction.The question is then of the privilege of the Assembly, forif it does -,lot possess the necessary privilege, it is notdisputed, that what the High Court has done in this casewould for the present purposes be unexceptionable.First then as to the privileges of the Assembly. TheAssembly relies for purpose on cl. (3) of Art. 194 of theConstitution. The first three clauses of that article mayat 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 theCentral Legislature. It is not in dispute that the UttarPradesh Legislature has not made any law defining thepowers, privileges and immunities of its two Houses. TheAssembly, therefore, claims that :It has those privilegeswhich 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 Commonsor its members. First I wish to note that it is notnecessary for our purposes to make a distinction between"privileges", " powers" and "immunities". Theyare no doubt different in the matter of their respectivecontents but perhaps in no otherwise. Thus the right of theHouse to have -absolute control of its internal proceedingsmay be considered as its privilege, its right to punish onefor contempt may be more properly described as its power,while the right that no member shall be liable for anythingsaid in the House may be really an immunity. All theserights are however created by one law and judged by the samestandard. I shall for the sake of convenience, describethem all as "privileges". Next I note that this case isconcerned with privileges of the House of Commons alone, andnot with those of its members and its committees. I stresshowever that the privileges of the latter two are in norespect different from those of the former except as totheir content,;.The nature of the privileges of the House of Commons can bebest discussed by referring to May’s Parliamentary Practice,which is an acknowledged work of authority on mattersconcern in the English Parliament. It may help to observehere that for a long time now there is no dispute as to thenature of the recognised privileges of the Commons.I start to explain the nature of the privileges by pointingout the distinction between them and the functions of theHouse. Thus the financial powers of the House of Commons toinitiate taxation legislation is often described as itsprivilege. This, however, is not the kind of privilege ofthe House of Commons to which cl. (3) of Art. 194 refers.Privileges of the House of Commons have a technical meaningin English Parliamentary Law and the article uses the wordin that sense only. That technical sense has been de-scribed in these words: "[C]ertain fundamental508rights of each House which are generally accepted asnecessary for the exercise of its constitutionalfunctions."(1) A point I would like to stress now is that itis of the essence of the nature of the privileges that theyare 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 ofParliament, while others have been defined by statute. Uponthese grounds alone all privileges whatever are founded"(2). In this case we shall be concerned with the formerkind of privilege only. The point to note is that thisvariety of privilege derives its authority from the law and


custom of Parliament. This law has been given the name ofLex Parliamenti. It owes its origin to the custom ofParliament. It is, therefore, different from the common lawof England which, though also based on custom, is based on aseparate set of custom, namely, that which prevails in therest of the realm. This difference in the origin had givenrise to serious disputes between Parliament and the courtsof law but they have been settled there for many years nowand except a dispute as to theory, the recurrence of anypractical dispute is not considered a possibility. So LordColeridge 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 thedispute. It will not be profitable at all, and indeed Ithink it will be ’mischievous,’ to enter upon a discussionof that dispute for it will only serve to make turbid, byraking up impurities which have settled down, a stream whichhas 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. 44.509that dispute can never arise in this country for here it isundoubtedly for the courts to interpret the Constitutionand, therefore, Art. 194(3). It follows that when aquestion arises in this country under that article as towhether the House of Commons possessed a particularprivilege at the commencement of the Constitution, thatquestion must be settled, and settled only, by the courts oflaw. There is no scope of the dreaded "dualism" appearinghere, that is, courts entering into a controversy with aHouse of a Legislature as to what its privileges are. Ithink what I have said should suffice to explain the natureof the privileges for the purposes of the present referenceand I will now proceed to discuss the privileges of theAssembly that are in question in this case, using that wordin the sense of rights ancillary to the main function of thelegislature.The privilege which I take up first is the power to commitfor contempt. It is not disputed that the House of Commonshas this power. All the decided cases and -text-books speakof such power. "The power of commitment is truly describedas the’ ’keystone of parliamentary privilege’......withoutit the privileges of Parliament could not have become self-subsistent, but, if they had not lapsed, would have survivedon 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 tocommit for contempt to compare it with breach of privlegewhich itself may amount to contempt. Thus the publicationof the proceedings of the House of Commons against itsorders 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 Housethough called "breaches of privilege" are more properlydistinguished as contempts. Committing to prison forcontempts is itself a privilege of the House of Commonswhether the contempt is committed by a direct breach of itsprivilege or by offending its(1) May, P. 90. (2) 104 E.R, 501, 559.510dignity or authority.(1) "The functions, privileges anddisciplinary powers of a legislative body are thus closelyconnected. The privileges are the necessary complement ofthe functions, and the disciplinary powers of theprivileges."(1) I may add that it is not in dispute thatpower to commit for contempt may be exercised not onlyagainst a member of the House but against an outsider aswell. (3)It was contended on behalf of the High Court that the powerof the House of Commons to commit for contempt was not con-ferred by cl. (3) of Art. 194 on the Houses of a StateLegislature because our Constitution has to be read alongwith its basic scheme providing for a division of powers andthe power to commit to prison for contempt being in essencea judicial power, can under our Constitution be possessedonly by a judicial body, namely, the courts and not by alegislative body like the Assembly. It was, thereforecontended that Art. 194(3) could not be read as conferringjudicial powers possessed by the House of Commons in Englandas one of its privileges on a legislative body and so theAssembly did not possess it.This contention of the High Court is, in my view, completelywithout foundation; both principle and authority are againstit. This Court has on earlier occasions observed that theprinciple of separation of powers is not an essential partof our Constitution : see for example In re. Delhi LawsAct(1). Again the Constitution is of course supreme andeven if it was based on the principle of separation ofpowers, there was nothing to prevent the Constitution-makers, if they so liked, from conferring judicial powers ona legislative body. If they did so, it could not be saidthat the provision concerning it was bad as our Constitutionwas based on a division of powers. Such a contention wouldof course be absurd. The only question, therefore, iswhether our Constitution-makers have conferred the power tocommit on the Legislatures. The question is not whetherthey had the power to do so, for there was no limit to theirpowers. What the Constitution-makers had done can, however,be ascertained only from the words used by them in theConstitution 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. Thattakes me to the language used in cl. (3) of Art. 194. Thewords there appearing are "the powers, privileges andimmunities of a House.... shall(1) May, p. 43. (2) lbid.(3) Ibid., p. 91 (4) [1951] S.C.R. 747,883.511be those of the House of Commons". I cannot imagine moreplain language than this. That language can only have onemeaning and that is that it was intended to confer on theState Legislatures the powers, privileges and immunitieswhich the House of Commons in England had. There is nooccasion here for astuteness in denying words their plainmeaning by professing allegiance to a supposed theory ofdivision of powers. So much as to the principle regardingthe application of the theory of division of powers.This question is further completely concluded by thedecision of this Court in Pt. M. S. M. Sharma v. Shri SriKrishna Sinha(1). I will have to refer to this case in somedetail later. There Das C.J., delivered the majorityjudgment of the constitution bench consisting of five Judgesand Subba -Rao J. delivered his own dissenting opinion. DasC.J., proceeded on the basis that the Houses of a StateLegislature had the power to commit for contempt. It was,therefore, held that there was nothing in our Constitutionto prevent a legislative body from possessing judicialpowers. On this point Subba Rao J. expressed no dissent.Further, the Judicial Committee in England has in two casesheld that under provisions, substantially similar to thoseof Art. 194(3) of our Constitution, the power of the Houseof Commons to commit for contempt had been conferred oncertain 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. "TheLegislative Council of Victoria...... shall hold, enjoy andexercise such and the like privileges, immunities and powersas...... were held, enjoyed and exercised by the CommonsHouse of Parliament of Great Britain and Ireland" conferredon the Houses of the Legislature -of the Australian Colonyof Victoria the judicial power to commit for contempt. InQueen v. Richards(1) it was held that s. 49 of theCommonwealth of Australia Constitution Act, 1901 whichprovided that "the powers, privileges and immunities of theSenate and the House of Representatives .... shall be suchas are declared by the Parliament, and until declared, shallbe those of the Commons House of Parliament of the UnitedKingdom...... ", conferred on the Houses judicial powers ofcommitting a person to prison for contempt. It was observedby 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 theAustralian 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 theprivileges whereas in our case the privileges had to bedefined by law and that in Australia there were nofundamental rights. I Confess I do not follow this argumentat all. The guestion is not how the privileges are declaredin Australia or what effect fundamental rights have onprivileges, but as to the meaning of the words which in thetwo statutes are identical. In Richard’s case(1) anapplication was made to the Judicial Committee for leave toappeal from the judgment of Dixon C.J. but such leave wasrefused, Viscount Simonds observing that the judgment of theAustralian High Court "is unimpeachable": Queen v.Richards(1). Reference may also be made to Fielding v.Thomas(1) for the interpretation of a similar provisionconferring the privileges of the Commons on the Legislatureof Nova Scotia in Canada. It would, therefore, appear thatArt. 194(3) conferred on the Assembly the power to commitfor contempt and it possessed that power.The next question is as to the privilege to commit by ageneral warrant. There is no dispute in England that if theHouse of Commons commits by a general warrant withoutstating the facts which constitute the contempt, then thecourts will not review that order("). It was however saidon behalf of the High Court that this power of the EnglishHouse of Commons was -not one of its privileges but it waspossessed by that House because it was a superior court and,therefore, that power, not being a privilege, has not beenconferred on the State Legislatures by Art. 194(3) of ourConstitution. It is not claimed by the Assembly that it isa superior court and has, therefore, a power to commit forcontempt by a general warrant. I would find nothing tojustify 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 ParliamentaryPractice 16th ed. p. 173513made. This takes me to the question, is the power to commitby a general warrant one of the privileges of the House ofCommons, or, is it something which under the common law ofEngland that House possessed because it was a superior court?I find no authority to support the contention that the powerto commit by a general warrant with the consequentdeprivation of the jurisdiction of the Courts of law inrespect of that committal is something which the House ofCommons had because it was a superior court. First, I donot think that the House of Commons was itself ever a court.The history of that House does not support such acontention. Before proceeding further I think it necessaryto observe that we are concerned with the privileges of theHouse of Commons as a separate body though no doubt aconstituent part of the British Parliament which consistsalso of the King and the House of Lords. The privilegeshowever with which we are concerned are those which theHouse of Commons claims for itself alone as an independentbody and as apart from those possessed by the House ofLords. Indeed it is clear that the privileges of the two


Houses are not the same: May Ch. III. It may be that inthe early days of English history the Parliament was acourt. The House of Commons, however, does not seem to havebeen a part of this Court. In medieval times the legalconception was that the King was the source of all things;justice was considered to flow from him and, therefore, thecourt of justice was attached to the King. The King’s Courtthus was a court of law and that is the origin of what iscalled "the High Court of Parliament". The history of theHigh Court of Parliament has been summarised in Potter’sOutlines of English Legal History (1958 ed.) and may be setout as follows : The King’s Council, under its older titleof Curia Regis, was the mother of the Common law courts, butstill retained some judicial functions even after the commonlaw courts had been well-established. (p. 78). Laterhowever in the 14th and 15th centuries it came to be heldthat appeals from the King’s Bench lay to the Parliament andnot to the Council. But Parliament had a great deal of workto do and could find little time for hearing petitions oreven for hearing rules of Error from the King’s Bench andthis jurisdiction fell into abeyance in the 15th century.It would appear, however, that of this Parliament, Commonswere no part. In 1485 it was held by all the Judges thatthe jurisdiction in Error belonged exclusively to the Houseof Lords and not to the whole Parliament. ProfessorHoldsworth states in explanation of this fact that it wasnot quite forgotten that the jurisdiction was to the Kingand his Council in Parliament whereas the Commons were514never part of his Council, the King in his Council inParliament meaning only the King and the House of Lords; p.95. It is also interesting to point out that when theCommons deliberated apart, they sat in the chapter-house orthe refectory of the Abbot of Westminster; and theycontinued their sittings in that place after their final,separation; May p. 12. The separation referred to is theseparation between the House of Lords and the House ofCommons. It may also be pointed out that when it is saidthat laws in England are made by the King in Parliament,what happens is ’that the Commons go to the Bar of the Houseof Lords where the King either in person, or through someoneholding a commission from him, assents to an Act. All thiswould show that the House of Commons when it sits as aseparate body it does not sit in Parliament. So sitting itis not the High Court of Parliament. I wish here toemphasise that we are in this case concerned with theprivileges of the House of Commons functioning as a separatebody, that is, not sitting in Parliament. May observes atp. 90, "Whether the House of Commons be, in law, a court ofrecord, it would be difficult to determine:" In Anson’s Lawof the Constitution, 5th ed. Vol. 1 at p. 197, it has beenstated that "Whether or not the House of Commons is a courtof record, not only has it the same power of protectingitself from insult by commitment for contempt, but theSuperior Courts of Law have dealt with it in this matter asthey would with one another, and have accepted as conclusiveits statement that a contempt has been committed, withoutasking ’What that contempt may have been." I think in thisstate of the authorities it would at least be hazardous tohold that the House of Commons was a court of record. If itwas not, it cannot be said to have possessed the power tocommit for its contempt by a general warrant as a court ofrecord.I now proceed to state how this right of the House ofCommons 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 andthe Courts in regard to the privileges of the former andhaving stated that in theory there is no way of resolvingthe real point at issue should a conflict between the twoarise. May observes, "In practice however there is muchmore agreement on the nature and principles of privilegethan the deadlock on the question of jurisdiction would leadone to expect." He then adds, "The courts admit :- (3) thatthe control of each House, over its internal proceedings isabsolute and cannot be interfered with by the courts. (4)That a committal for contempt by "either House is inpractice within its exclusive jurisdiction, since the515facts constituting the alleged contempt need not be statedon the warrant of committal." So May treats the right of theHouse of Commons to commit by a general warrant as one ofits privileges and not something to which it is entitledunder the common law as of right as a Court of Record. InCases on Constitutional Law by Keir and Lawson, (4th ed.) p.126, it is stated that among the undoubted privileges of theHouse of Commons is "the power of executing decisions onmatters of privilege by committing members of Parliament, orany other individuals, to imprisonment for contempt of theHouse. This is exemplified in the case of Sheriff ofMiddlesex." That is a case where the House of Commons hadcommitted the Sheriff of Middlesex for contempt by a generalwarrant, the Sheriff having in breach of the orders of theHouse carried out an order of the King’s Bench Division,which he was bound to do and that Court held that it had nojurisdiction to go into the question of the legality of thecommittal by the House : see Sheriff of Middlesex(1). InHalsbury’s Laws of England, Vol. 28 p. 467, it is statedthat the Courts of law will not enquire into the reasons forwhich a person is adjudged guilty of contempt and committedby either House by a warrant which does not state the causesof his a.-rest. This observation is made in dealing with theconflict between the House of Commons and the courtsconcerning the privileges of the former and obviously treatsthe power to issue a general warrant as a matter of theprivilege of the House. Lastly, in Dicey’s ConstitutionalLaw (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 treatedthis power to commit by a general warrant with theconsequent deprivation of the court’s jurisdiction toadjudicate on the legality of the imprisonment, as a matterof privilege of the House and not as a right possessed by itas a superior court.I now proceed to refer to recent decisions of the JudicialCommittee which a also put the right of the House. ofCommons to com-(1) 113 E.R. 419.516mit by a general warrant on the ground of privilege. Thefirst case which I will consider is Glass’s(1) case. There


the Legislative Assembly of the Colony of Victoria by ageneral warrant committed Glass to prison for contempt andthe matter was brought before the court on a habeas corpuspetition. I have earlier stated that under certain statutesthe Assembly claimed the Same privileges which the House ofCommons possessed. The Supreme Court of Victoria held infavour of Glass. The matter was then taken to the JudicialCommittee and,it appears to have been argued there that "theprivilege is the privilege of committing for contemptmerely; that the judging of contempt without appeal, and thepower of committing by a general Warrant, are mere incidentsor accidents applicable to this Country, and not transferredto the Colony." The words "this Country" referred toEngland. Lord Cairns rejected this argument with thefollowing observations: "The ingredients of judging thecontempt, and committing by a general Warrant, are perhapsthe most important ingredients in the privileges which theHouse of Commons in this Country possesses; and it would bestrange indeed if, under a power to transfer the whole ofthe privileges and powers of the House of Commons, thatwhich would ,only be a part, and a comparativelyinsignificant part, of this privilege and power weretransferred." (p. 573). He also said, (p. 572) "Beyond alldoubt, one of the privileges and one of the most importantprivileges of the House of Commons-is the privilege ofcommitting for contempt and incidental to that privilege, ithas, as has already been stated, been well-established inthis Country that the House of Commons have the right to bethe .judges themselves of what is contempt, and to commitfor that contempt by a Warrant, stating that the commitmentis for contempt of the House generally, without specifyingwhat the character of the contempt is. It would, therefore,almost of necessity follow, that the Legislature of theColony having been permitted to carry over to the Colony theprivileges, immunities, and powers of the House of Commons,and having in terms carried over all the privileges andpowers exercised by the House of Commons at the date of theStatute, there was carried over to the Legislative Assemblyof the Colony the privilege or power of the House of Commonsconnected with contempt-the privilege or power, namely, ofcommitting for contempt, of judging itself of what iscontempt, and of committing for contempt by a Warrantstating generally that a contempt had taken place." InRichard’s case (2) the power to commit by a general warrantwas considered as a privilege of the House and theobservations of Lord Cairns(1) (1869-71) L.R. 3 P.C. 560.(2) 92 C.L.R. 157.517in Glass’s(1) case were cited in support of that view. As Ihave already said this view was upheld by the JudicialCommittee : Queen v. Richard (2). It is of some interest tonote that Dixon C.J. was of the opinion, as I have earliershown, that the power to commit was scientifically moreproperly a judicial power but nonetheless he found that itwas a privilege technically so called of the House ofCommons and so transferred to the Australian Houses by s. 49of the Australian Constitution Act of 1901. It is alsonecessary to state here that this case was of the year 1955and shows that the view then held was that the right tocommit by a general warrant was a privilege of the House. Iam pointing out this only because it has been suggested thateven 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 Committeewere not binding on us. That may be so. But then it hasnot been shown that they are wrong and, therefore, they areof value at least as persuasive authorities. The fact thatthe decisions of the Judicial Committee are not binding onus as judgments of a superior court is however to nopurpose. The real question for our decision is whether theHouse of Commons possessed a certain privilege. We mayeither have to take judicial notice of that privilege ordecide its existence as a matter of foreign law. It isunnecessary to decide which is the correct view. If theformer, under s. 57 of the Evidence Act a reference to theauthorised law reports of England would be legitimate and ifthe latter, then again under s. 38 of that Act a referenceto these reports would be justified. So in either case weare entitled to look at these reports and since they containdecisions of one of the highest Courts in England, we arenot entitled to say that what they call a privilege of theHouse of Commons of their country is not a privilege unlessother equally high authority taking a contrary view isforthcoming.I now come to some of the English cases on which theproposition that the right to commit by a general warrant isnot a matter of privilege of the House of Commons but aright which it possessed as a superior court is, as Iunderstood the argument of learned advocate for the HighCourt, based. I will take the cases in order of date. Itwill not be necessary to refer to the facts of these casesand it should suffice to state that each of them dealt withthe right of the House of Commons to commit by a generalwarrant. 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. 501.518ments were delivered by Ellenborough C.J. and Baylay J. Withregard to this case, Anson in his book at p. 189 says, "Itis noticeable that in the case of Burdett v. Abbot whileBayley J. rests the claim of the House to commit on itsparity of position with the Courts of Judicature. LordEllenborough C.J. rests his decision on the broader groundof expediency, and the necessity of such a power for themaintenance of the dignity of the House." Ellenborough C.J.,therefore, according to Anson, clearly does not take theview that the House of Commons is a court and all that Bay-ley J. does, according to him, is to put the House ofCommons in parity with a Superior Court. If the House ofCommons was a court, there, of course, was no questionof putting it in parity with one. There was an appeal fromthis judgment to the House of Lords and in that appealafter the close of the arguments, Lord Eldon L.C. referredthe following question to the Judges for their advice, 16Whether, if the Court of Common Pleas, having adjudged anact to be a contempt of Court, had committed for thecontempt under a warrant, stating such adjudicationgenerally without the particular circumstances, and thematter were brought before the Court of King’s Bench, byreturn to a writ of habeas cot-pus. the return setting forththe warrant, stating such adjudication of contemptgenerally; whether in that case the Court of King’s Benchwould discharge the prisoner, because the particular factsand circumstances, out of which the contempt arose, were notset forth in the warrant": Burdett v. Abbot(1). The Judgesanswered the question in the negative. Upon that Lord Eldondelivered his judgment with which the other members of the


Court agreed, stating that the House of Commons had thepower to commit by a general warrant. I am unable to holdthat this case shows that Lord Eldon came to that conclusionbecause the House of Commons was a superior court. It seemsto me that Lord Eldon thought that the House of Commonsshould be treated the same way as one superior court treatedanother and wanted to find out how the courts treated eachother. I shall later show that this is the view which hasbeen taken of Lord Eldon’s decision in other cases. But Iwill now mention that if Lord Eldon had held that the Houseof Commons was a court, a constitutional lawyer of Anson’seminence would not have put the matter in the way that Ihave just read from his work.Then I come to the case of Stockdale v. Hansard(2). Thatcase was heard by Lord Denman C.J., Littledale J., PattesonJ. 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 theCommons was a court. In fact he refers to the right "asarising from this privilege." Then I find Littledale J.observing at p. 1174: "But this proceeding in the House ofCommons does not arise on adverse claims; there are noproceedings in the Court; there is no Judge to decidebetween the litigant parties; but it is the House of Commonswho are the only parties making a declaration of what theysay belongs to them." So Littledale J. also did not considerthe Commons as a court. Then came Patteson J. who stated atp. 1185, "The House of Commons by itself is not the court ofParliament". 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 significancefor the reasons hereafter to appear. It is obvious thatneither Patteson J. nor Coleridge J. thought that the Houseof Commons was a Court or possessed any powers as such.Next in order of date is the case of the Sheriff ofMiddlesex(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 thejudgment of Lord Eldon in Burdett v. Abbot(1). Denman C.J.did not think that Lord Eldon considered the House ofCommons to be a Court for he himself found it unnecessary to


discuss that question. The basis why he thought that theHouse of Commons must possess the right to commit by ageneral warrant was one of expediency and of confidence in abody 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. atp. 427 expressly affirms all that had been said by him andthe other Judges in Stockdale v. Hansard(2). As I haveearlier shown, he had there said that "in truth, the Houseis not a Court of Law at all." Therefore when he said thatthe right to adjudicate in the general form was not foundedon privilege, whatever he might have meant, he did not meanthat it was founded on the House of Commons being a court.I think what he meant was that it was a right which theHouse of Commons had to possess in order to discharge itsduties properly and, therefore, not something conceded to itas a sign of honour and respect. He might also have meantthat the power was not something peculiar to the House as itwas also possessed by the courts for the same reason ofexpediency, and, therefore, it was not a privilege, a termwhich has been used in the sense of something which theParliament possessed and which exceeded those possessed byother bodies or individuals : Cf. May 42.Then comes the case of Howard v. Gossett(3). It will beenough to refer to the judgment of the Court of ExchequerChamber in appeal which begins at p. 158. That judgment wasdelivered 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 asto be a protection to the officer of the House, upon aprinciple which, as it applies to the process and officersof every Superior Court, must surely be applicable to thoseof the High Court of Parliament and each branch ofit."Here again the House is treated as being entitled to thesame respect as a superior court, but it is not being saidthat the House is a superior court.Lastly, I come to Bradlaugh v. Gossett(1) in which at p. 285Stephen J. said, "The House of Commons is not a Court ofjustice." I am unable to see how these authorities can besaid to hold that the power of the House of Commons tocommit by a general warrant is possessed by it because it isa superior court.It was then said that even if the right to commit by ageneral warrant cannot be said to have been possessed by theHouse of ,Commons because it was superior court, theobservations in the cases on the subject, including those towhich I have already referred, would establish that theright springs from some rule of comity of courts, or ofpresumptive evidence or from an agreement between the courtsof law and the House or lastly from some concession made bythe former to the latter. I at once observe that these


cases do not support the contention and no text-book hastaken the view they do or that the right is anything but aprivilege. The contention further seems to me to be clearlyfallacious and overlooks the basic nature of a privilege ofthe House of Commons. I have earlier stated the nature ofthe privilege but I will repeat it here. All privileges ofthe House of Commons are based on law. That law is known aslex Parliamenti. Hence privileges are matters which theHouse of Commons possesses as of right. In Stockdale v.Hansard(2) all the Judges held that the rights of the Houseof Commons are based on lex Parliamenti and that law likeany other law, is a law of the land which the courts areentitled to administer.Now if the privilege of committing by a general warrant, isa right enforceable in law which belongs to the House ofCommons, it cannot be a matter controlled by the rule ofcomity of courts. Comity of courts is only a self-imposedrestraint. It is something which the court on its ownchooses not to do. It is really not a rule of law at all.It creates no enforceable right. A ’right’ to the privilegecannot be based on it. Besides there is no question of(1) (1884) L.R. 12 Q.B.D. 271.(2) 112 E.R. 11 12.523comity of courts unless there are two courts, each extendingcivility or consideration to the other. Here we have theHouse of Commons and the courts of law. The former is not acourt and the latter needs no civility or consideration fromthe House for its proper functioning. Here there is noscope of applying any principle of comity of courts.Next as to the privilege being really nothing more than arule of presumption that a general warrant of the House ofCommons imprisons a person legally, so that the question ofthe legality of the committal need not be examined by acourt of law, I suppose it is said that this is apresumption which the law requires to be made. If it is notso, then the right of the House would depend on theindulgence of the judge concerned and, therefore, be noright 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 lawon which the presumption is based ? None has been pointedout and so far as I know, none exists unless it be lexParliamenti. Once that is said, it really becomes a matterof privilege for the lex Parliamenti would not create thepresumption except for establishing a privilege. A rightcreated by lex Parliamenti is a privilege. This I haveearlier said in discussing the nature of privileges.Lastly, has the right its origin in agreement between theHouse of Commons and the courts of law, or in a concessiongranted by the latter to the former ? This is a novelargument. I have not known of any instance where a right,and therefore, the law on which it is based, is created byan agreement with courts. Courts do not create laws at all,least of all by agreement; they ascertain them andadminister them. For the same reason, courts cannot createa law by concession. A court has no right to concede aquestion of law unless the law already exists. I find itimpossible to imagine that any parliamentary privilege whichcreates an enforceable right could be brought into existenceby agreement with courts or by a concession made by them.Before I part with the present topic I will take the libertyof observing that it is not for us to start new ideas aboutthe privileges of the House of Commons, ideas which had notever been imagined in England. Our job is not to start aninnovation as to privileges by our own researches. It would


be unsafe to base these novel ideas on odd observations inthe judgments in the English cases, torn out of theircontext and in disregard of the purpose for which they weremade. What I have quoted from these cases will at leastmake one pause and think that these cases can furnish nosure foundation for a novel theory as to the right of theHouse of524Commons to commit by a general warrant. Researches into oldEnglish history are wholly out of place in the presentcontext and what is more, are likely to lead tomisconceptions. To base our conclusion as to the privilegeson researches into antiquities, will furthermore be anerroneous procedure for the question is what the privilegesof the House of Commons were recognised to be in 1950.Researches into the period when these privileges were takingshape can afford no answer to their contents and nature in1950. The question can be answered only by ascertainingwhether the right under discussion was treated as aprivilege of the House of Commons by authoritative opinionin England in the years preceding 1950. I then come to the conclusion that the right to commit forcontempt by a general warrant with the consequentdeprivation of jurisdiction of the courts of law to enquireinto that committal is a privilege of the House of Commons.That privilege is, in my view, for the reasons earlierstated, possessed by the Uttar Pradesh Assembly by reason ofArt. 194(3) of the Constitution.It is then said that even so that privilege of the Assemblycan be exercised only subject to the fundamental rights of acitizen ,guaranteed by the Constitution. That takes me toSharma’s case(1) As I read the judgment of the majority inthat case, they seem to me to hold that the privileges ofthe House of Commons which were conferred on the Houses of aState Legislature by Art. 194(3), take precedence overfundamental rights. The facts were these. A House of theBihar Legislature which also had made no law defining itsprivileges under Art. 194(3), had directed certain parts ofits proceedings to be expunged but notwithstanding this thepetitioner published a full account of the proceedings inhis paper including what was expunged. A notice wasthereupon issued to him by the House to show cause why stepsshould not be taken against him for breach of privileges ofthe House. The privilege claimed in that case was the rightto prohibit publication of its proceedings. The petitioner,the Editor of the paper, then filed a petition under Art. 32of the Constitution stating that the privilege did notcontrol his fundamental right of freedom of speech underArt. 19 (1) (a), and that, therefore, the House had no rightto take proceedings against him. He also disputed that theHouse of Commons had the privilege which the Bihar Assemblyclaimed. The majority held that the House possessed theprivilege to prohibit the publication of its proceedings andthat privilege was not subject to the fundamental right of acitizen under Art.(1) [1959] Supp. 1 S.C.R. 806.52519 (1)(a). Subba Rao J., took a dissentient view and heldthat fundamental rights take precedence over privileges andalso that the House did not possess the privilege ofprohibiting the publication of its proceedings. With thelatter 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 inregard to this case. It was first said that the majority


judgment required reconsideration and then it was said thatin any event, that judgment only held that the privilegethere claimed took precedence over the fundamental right ofthe freedom of speech and not that any other privilege tookprecedence over fundamental rights. I am unable to accepteither of these contentions.On behalf of the Assembly it has been pointed out that in areference under Art. 143 we have no jurisdiction to setaside an earlier decision of this Court, for we have to giveour answers to the questions referred on the law as itstands and a decision of this Court so long as it stands ofcourse lays down the law. I am unable to say that thiscontention is idle. It was said on behalf of the High Courtthat in In re. Delhi Laws Act(1) a question arose whether adecision of the Federal Court which under our Constitutionhas the same authority as our decisions, was right. It maybe argued that this case does not help, for the questionposed, itself required the reconsideration of the earlierjudgment. I do not propose to discuss this matter further,for I do not feel So strongly in favour of the contention ofthe Assembly that I should differ from the view of mylearned brothers on this question.I feel no doubt, however, that the majority judgment inSharma’s case(1) was perfectly correct when it held thatprivileges were not subject to fundamental rights. I haveearlier set out the first three clauses of Art. 194. Thefirst clause was expressly made subject to the provisions ofthe Constitution-whatever the provisions contemplated were-while the third clause was not made so subject. Both themajority and the minority judgments are agreed that thethird clause cannot, therefore, be read as if it had beenexpressly made subject to the provisions of the Constitu-tion. For myself, I do not think that any other reading ispossible. Clause (3) of Art. 194 thus not having beenexpressly made subject to the other provisions of theConstitution, how is a conflict between it and any otherprovisions 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. 747.526principle of harmonious construction has to be applied forreconciling the two and Art. 194(3) being a specialprovision must take precedence over the fundamental rightmentioned in Art. 19(1) (a) which was a general provision:(p. 860). Though Subba Rao J. said that there was noinherent inconsistency between Art. 19 (1) (a) and Art.194(3), he nonetheless applied the rule of harmoniousconstruction. He felt that since the legislature had a widerange of powers and privileges and those privileges can beexercised without infringing the fundamental rights, theprivilege should yield to the fundamental right. Thisconstruction, he thought, gave full effect to both thearticles: (pp. 880-1). With great respect to the learnedJudge, I find it difficult to follow how this interpretationproduced the result of both the articles having effect andthus 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 formersays that the State Legislatures shall have the powers andprivileges of the English House of Commons while Art. 19 (1)(a) states that every citizen shall have full freedom ofspeech. The conflict however comes to the surface when weconsider the particular privileges claimed under Art.194(3). When Art. 194(3) says that the State Legislatures


shall have certain privileges, it really incorporates thoseprivileges 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 publica-tion of any of its proceedings. It is only then that theconflict between Arts. 194 (3) and 19 (1) (a) can be seen;one restricts a right to publish something while the othersays all things may be published. I believe that is how thearticles were read in Sharma’s case(1) by all the Judges.If they had not done that, there would have been no questionof a conflict between the two provisions or of reconcilingthem.Now if Art. 19 (1) (a) is to have precedence, then a citizenhas full liberty to publish whatever he likes; he canpublish the proceedings in the House even though the Houseprohibited their publication. The result of that readinghowever is to wipe out that part of Art. 194(3) which saidthat the State Legislatures shall have power and privilegeto prohibit publication of their proceedings. That canhardly be described as harmonious reading of the provisions,a reading which gives effect to both provisions. It is areading which gives effect to one of the provisions andtreats the other as if it did not exist.(1) [1959] Supp. 1 S.C.R. 806.527It is true that if Art. 19(1) (a) prevailed, it would notwipe out all the other privileges of the House of Commonswhich had to be read in Art. 194(3). Thus the right of theHouse to exclude strangers remained intact even if the rightto prohibit publication of proceedings was destroyed by Art.19 (1) (a). But this is to no purpose as there never wasany conflict between the right to exclude strangers and thefreedom of speech and no question of reconciling the two bythe rule of harmonious construction arose. When one part ofa provision alone is in conflict with another provision, thetwo are not reconciled by wiping out of the statute book theconflicting part and saying that the two provisions havethereby been harmonised because after such deletion the restof the first and the whole of the second operate. We areconcerned with harmonising two conflicting provisions bygiving both the best effect possible and that is not done bycutting the gordian knot by removing the conflicting partout of the statute.I agree that in view of the conflict between Art. 194(3) andArt. 1 9 ( 1 ) (a), which arises in the manner earlierstated, it has to be resolved by harmonious construction.As I understand the principle, it is this. When theLegislature-here the Constitutionmakers-enacted both theprovisions they intended both to have effect. If per chanceit so happens that both cannot have full effect, then theintention of the legislature would be best served by givingthe provisions that interpretation which would have theeffect of giving both of them the most efficacy. This, Ibelieve, is the principle behind the rule of harmoniousconstruction. Applying that rule to Sharma’s case(1), ifthe privilege claimed by the Legislature under Art. 194(3)of prohibiting publication of proceedings was given fulleffect, Art. 19 (1) (a) would not be wiped out of theConstitution completely, the freedom of speech guaranteed bythe last mentioned article would remain in force in respectof other matters. If, on the contrary Art. 19 (1) (a) wasto have full effect, that is, to say, a citizen was to haveliberty to say and publish anything he liked, then that partof Art. 194(3) which says that the House can prohibitpublication 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 properreading of the Constitution. I would for these reasons saythat the rule of harmonious construction supports theinterpretation arrived at by the majority in Sharma’scase(1).Subba Rao J. gave another reason why he thought that funda-mental rights should have precedence over the privileges ofthe(1) [1959] Supp. 1 S.C.R. 806.528Legislature and on this also learned counsel for the HighCourt relied in the present case. Subba Rao J. said thatthat part of Art. 194(3) under which the State Legislatureclaimed the same privilege as those of the House of Commonsin England, which has been called the second part of thisclause, was obviously a transitory provision because it wasto have effect until the Legislature made a law defining theprivileges as the Constitution-makers must have intended itto do. He added that if and when the Legislature made thatlaw that would be subject to the fundamental rights and itwould be strange if provisions which were transitory wereread as being free of those rights. The majority inSharma’s case(1) no doubt said without any discussion thatthe law made under Art. 194(3) would be subject to allfundamental rights. Learned advocate for the Assemblyhowever contended before us that that view was notjustified. In the present case it seems to me it makes nodifference whatever view is taken. Assume that the law madeby a Legislature defining its privileges has to be subjectto fundamental rights. But that will be so only becauseArt. 13 says so. Really the law made under Art. 194(3) isnot to be read as subject to fundamental rights; theposition is that if that law is in conflict with anyfundamental right, it is as good as not made at all. Thatis the effect of Art. 13. The argument that since the lawsmade under Art. 194(3) are subject to fundamental rights, somust the privileges conferred by the second part of cl. (3)be, is therefore based on a misconception. Article 13 makesa law bad if it conflicts with fundamental rights. Itcannot be argued that since Art. 13 might make laws madeunder cl. (3) of Art. 194 void, the privileges conferred bythe second part of that clause must also be void. Article13 has no application to a provision in the Constitutionitself. It governs only the laws made by a StateLegislature which Art. 194(3) is not. Therefore, I do notsee why it must be held that because a law defining-privileges if made, would be void if in conflict withfundamental rights, the privileges incorporated in Art.194(3)-1 have already said that that is how the second Dartof Art. 194(3) has to be read-must also have been intendedto be subject to the fundamental rights. If such was theintention, cl. (3) would have started with a provision thatit would be subject to the Constitution. The fact that incl. (1 ) the words ’subject to the provisions of thisConstitution’ occur while they are omitted from cl. (3) is astrong indication that the latter clause was not intended tobe so subject. Furthermore, that could not have been theintention because then the privilege with which the presentcase is concerned, namely, to commit for contempt by ageneral1. [1959] Supp. 1 S.C.R. 806.529warrant without the committal being subjected to the reviewof the court, would be wiped out of the Constitution for the


fundamental right required that the legality of everydeprivation 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 aretranscendental that must have been because the Constitutionmade them so. The Constitution no doubt by Art. 13 makeslaws made by the Legislatures subject to fundamental rights,but I do not know, nor has it been pointed out to us, inwhat other way the Constitution makes the fundamental rightstranscendental. We are not entitled to read into theConstitution things which are not there. We are certainlynot entitled to say that a specific provision in theConstitution is to have no effect only because it is inconflict with fundamental rights, or because the latter arefrom 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 wasmade by the Legislature under the first part of Art. 194(3)the privileges of the House of Commons enjoyed under thelatter part of that provision would cease to be available.But I do not see that it follows from this that the secondpart was transitory. There is nothing to show that theConstitution-makers intended that the Legislature shouldmake its own law defining its privileges. The Constitution-makers had before them when they made the Constitution in1950, more or less similar provisions in the AustralianConstitution Act, 1901 and they were aware that during,fifty years, laws had not been made in Australia definingthe privileges of the Houses of the Legislatures there butthe Houses had been content to carry on with the privilegesof the House of Commons conferred on them by theirConstitution. With this example before them I have no rea-son to think that our Constitution-makers, when they made asimilar provision in our Constitution, desired that ourLegislatures should make laws defining their own privilegesand get rid of the privileges of the House of Commonsconferred on them by the second part of Art. 194(3). 1 thinkit right also to state that even if the rights conferred bythe second part of Art. 194(3) were transitory, that wouldnot justify a reading the result of which would be to deletea part of it from the Constitution.It is necessary to notice at this stage that in GanupatiKeshav Ram Reddy v. Nafisul Hassan(1) his Court held thearrest of(1) A.I.R. 1954 S.C.636530a citizen under the Speaker’s order for breach of privilegeof the Uttar Pradesh Assembly without producing him before amagistrate as required by Art. 22 (2) of the Constitutionwas a violation of the fundamental right mentioned there.Reddy’s case(1) states no reason in support of the viewtaken. Subba Rao J., though he noticed this, nonethelessfelt bound by it. The majority did not do so observing thatthe decision there proceeded on a concession by counsel. Inthis Court learned Advocate for the High Court said thatthere was no concession in the earlier case. I notice thatDas C.J." who delivered the judgment of the majority inSharma’s case(1) was a member of the Bench which decidedReddy’s case(1). If the decision in Reddy’s case(-’) wasnot by concession at least in the sense that the learnedadvocate was unable to advance any argument to support thecontention that privilege superseded fundamental right, itwould be strange that the point was not discussed in the


judgment. However all this may be, in view of the fact thatit does not seem from the judgment to have been contended inReddy’s case(1) that the second part of Art. 194(3) createdprivileges which took precedence over the fundamentalrights, as the judgment does not state any reason in supportof the view taken, for myself I have no difficulty in notfollowing Reddy’s case(1) especially as the majority inSharma’s case(1) did not follow it.It was also said that the privileges were only intended tomake the Legislatures function smoothly and withoutobstruction. The main function of the Legislatures, it waspointed out, was the making of laws and the object of theprivileges was to assist in the due discharge of thatfunction. It was contended that if the laws made by aLegislature, for the making of which it primarily exists,are subject to fundamental rights, it is curious thatsomething which is ancillary to that primary function shouldbe free of them. I find nothing strange. in this. Lawsmade by a Legislature are subject to fundamental rightsbecause the Constitution says so. The privileges are notsubject because they are conferred by the Constitutionitself and have neither been made so subject nor found on aproper interpretation to be such. I believe I have now discussed all the reasons advanced insupport of the view that the majority decision in Sharma’scase (2) was erroneous. As I have said, I am not persuadedthat these reasons are sound.C. 636. (2) [1959] Supp. 1 S.C.R. 806.531In R. K. Karanjia v. The Hon’ble Mr. M. Anantasayanamlyyangar, Speaker, Lok Sabha (W.P. No. 221 of 1961 unreport-ed), which was a petition under Art. 32 of the Constitution,a Bench of seven Judges of this Court was asked toreconsider the Correctness of the majority decision inSharma’s case(1) but it considered that decision to becorrect and refused to admit the petition. This is anotherreason for holding that Sharma’s case (1) was correctlydecided.I now come to the other contention concerning Sharma’scase(1). It was said that all that the majority judgmentheld in that case was that the privilege of prohibitingpublication of its proceedings conferred on a Legislature bythe second part of cl. (3) of Art. 194 was not subject tothe fundamental right of freedom of speech guaranteed byArt. 19 (1) (a) It was pointed out that that case did notsay 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 argumentadvanced in that case that Art. 21 would be violated by theexercise of the privilege of the House to commit forcontempt by stating that there would be no violation of Art.21 as the arrest would be according to procedure establishedby law because the arrest and detention would be accordingto rules of procedure framed by the House under Art. 208.It was contended that the majority therefore held that thefundamental right guaranteed by Art. 21 would take pre-cedence over the privilege to commit.This contention is also not acceptable tome. No doubtSharma’s case(-’) was concerned with the conflict betweenArt. 19 (1) (a) and the privilege of the House under thesecond part of Art. 194(3) to prohibit publication of itsproceedings and, therefore, it was unnecessary to refer tothe other fundamental rights. The reason, however, whichled the majority to hold that the conflict between the twohad to be resolved by giving precedence to the privilege


would be available in the case of a conflict between manyother privileges and many other fundamental rights. Nowthat reason was that to resolve the conflict, the rule ofharmonious construction had to be applied and the result ofthat would be that fundamental rights, which in their naturewere general, had to yield to the privileges which werespecial. The., whole decision of the majority in that casewas that when there was a conflict between a privilegecreated by the second part of Art. 194(3) and a fundamentalright, that conflict should be resolved by harmonising thetwo. Tne decision would apply certainly to the conflict(1) [1959] Supp. 1 S.C.R. 806.532between the privilege of committal to prison for contempt bya general warrant without the validity of that warrant beingreviewed by a court of law and the fundamental rightsguaranteed by Arts. 21, 22 and 32. The majority judgmentwould be authority for holding that the conflict should besolved by a harmonious construction. Indeed that was theview of the minority also. The difference was as to theactual construction.Das C.J. no doubt said that there was no violation of Art.21 in Sharma’s case(1) because the deprivation of libertywas according to procedure established by law. That was, tomy mind, only an alternative reason, for he could have dealtwith that point on the same reason on which he said that thefundamental right under Art. 19 (1) (a) must yield to theprivilege of the House to prohibit publication of itsproceedings, namely, by the application of the rule ofharmonious construction. He could have said by the samelogic that he used earlier, that the fundamental rightguaranteed by Art. 21 was general and the privilege todetain by a general warrant was a special provision andmust, therefore, prevail. I am unable to hold that bydealing with the argument based on Art. 21 in the manner hedid, Das C.J. held that the fundamental right under Art. 21took precedence over the privilege of committal by a generalwarrant which the Legislature possessed under the secondpart of cl. (3) of Art. 194. If he did so, then there wouldbe no reason why he should have held that fundamental rightof freedom of speech should yield to the House’s privilegeto stop publication of its proceedings. Another reason forsaying that Das C.J. did not hold that Art. 21 tookprecedence over the privilege to commit by a general warrantis the fact that he held that Reddy’s case(1) was wronglydecided. That case had held that Art. 22 had precedenceover the privilege of committal. If Art. 22 did not haveprecedence, as Das C.J. must have held since he did notaccept the correctness of Reddy’s case(2), no more could hehave held that Art. 21 would have precedence over theprivilege to commit for contempt.Some reference was made to cls. (1) and (2) of Art. 194 toshow that Sharma’s case (1) decided that Art. 19 (1) (a)alone had to yield to the privilege conferred by the secondpart of cl. (3) of Art. 194, but I do not think that themajority decision in Sharma’s case(1) was at all based onthose clauses. These clauses, it will be remembered, dealtwith freedom of speech in the House. Das C.J., referred tothem only because some arguments, to which it is unnecessarynow 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. 636.533clauses for the purpose of showing that the privileges weresubject to the fundamental right of freedom of speech. Both


the minority and the majority judgments were unable toaccept these arguments. Indeed the question in that caseconcerned the power to affect a citizen’s freedom of speechoutside the House and cls. (1) and (2) only deal withfreedom of speech of a member in the House itself and withsuch freedom that case had nothing to do.In this Court some discussion took place as to the meaningof the words "subject to the provisions of thein cl. (1)of Art. 194. These words can, in my view, only refer tothe provisions of the Constitution laying down the proceduretobe observed in the House for otherwise cls. (1) and (2) willconflict with each other. I will now make a digression andstate that learned advocate for the Assembly pointed outthat in Art. 194 the Constitution makers treated the libertyof speech of a member differently by expressly providing forit in cls. (1) and (2) and by providing for other privilegesthat is, privileges other than that of the freedom of speech-in the House, in cl. (3). He said that the reason was thatif the freedom of speech in the House was conferred by cl.(3) it would be controlled by law made by the legislatureand then the party in power might conceivably destroy thatfreedom. The intention was that the freedom of speech inthe House should be guaranteed by the Constitution itself soas to be beyond the reach of any impairment by any law madeby the legislature. I think that is the only reason whythat freedom was treated separately in the Constitution incls. (1) and (2) of Art. 194. Therefore those clauses havenothing to do with the case in hand. Nor had they anythingto do with the decision in Sharma’s case. ’Me result isthat in my judgment Sharma’s case covers the present caseand cannot be distinguished from it.For the reasons earlier stated I come to the conclusion thatwhen there is a conflict between a privilege conferred on aHouse by the second part of Art. 194(3) and a fundamentalright, that conflict has to be resolved by harmonising thetwo provisions. It would be wrong to say that thefundamental right must have precedence over the privilegesimply because it is a fundamental right or for any otherreason. In the present case the conflict is between theprivilege of the House to commit a person for contempt with-out that committal being liable to be examined by a court oflaw and the personal liberty of a citizen guaranteed by Art.21 and the right to move the courts in enforcement of thatright under Art. 32 or Art. 226. If the right to move thecourts in enforcement of the fundamental right is givenprecedence, the privilege which provide,%534that if a House commits a person by a general warrant thatcommittal would not be reviewed by courts of law, will loseall its effect and it would be as if that privilege had notbeen granted to a House by the second part of Art. 194(3).This, in my view, ,cannot be. That being so, it wouldfollow that when a House commits a person for contempt by ageneral warrant that person would have no right to approachthe courts nor can the courts sit in judgment over suchorder of committal. It is not my intention to state thatthere may not be exceptions to the rule but I do not proposeto enter into discussion of these exceptions, if any, in thepresent ,case. The existence of those exceptions may besupported by the observations of Lord Ellenborough C.J. inBurdett v. Abbot(1). May at p. 159 puts the matter thus:"Lord Ellenborough C.J., left open the possibility thatcases might arise in which the courts would have to decideon the validity of a committal for contempt where the factsdisplayed in the return could by no reasonable interpreta-


tion be considered as a contempt".I think I have now sufficiently discussed the law on thesubject and may proceed to answer the questions stated inthe 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 petition.This question should, in my opinion, be answered in theaffirmative. The Lucknow Bench was certainly competent todeal with ,habeas corpus petitions generally. The onlypoint raised by the Assembly is that it has no jurisdictionto deal with such petitions when the detention complained ofis under a general warrant issued by the Speaker. But theLucknow Bench had to find out whether the detention ofKeshav Singh was by such a warrant before it could throw outthe petition on the ground of want of jurisdiction. Thepetition did not show that the detention was under a generalwarrant. That would have appeared when the Speaker of theAssembly and the jailor who were respondents to the petitionmade(1) (1811) 14 East I. 152: 104 E.R. 501.535their return. That stage had not come when the LucknowBench dealt with the petition and made orders on it. Tillthe Lucknow Bench was apprised of the fact that thedetention complained of was under a general warrant, it hadfull competence to deal with the petition and make orders onit. It was said that the order for bail was illegal becausein law release on bail is not permitted when imprisonment isfor contempt. I do not think this is a fit occasion fordeciding that question of law for even if the order for bailwas not justifiable in law that would not otherwise affectthe competence of the Bench to make the order. I do notsuppose this reference was intended to seek an answer on thequestion whether in a habeas corpus petition where theimprisonment is for contempt, the law permits a release onbail.. 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 thereis a contempt of the Assembly is for the Assembly todetermine. If that determination does not state the facts,courts of law cannot review the legality of it. Having madethat observation, I proceed to deal with the question.


The question should be answered in the negative. I supposefor an act to amount to contempt, it has not only to beillegal but also wilfully illegal. Now in the present caseit does not appear that any of the persons mentioned had anyknowledge that the imprisonment was under a general warrant.That being so, I have no material to say that thepresentation of the petition was an illegal act much less awilfully illegal act. No contempt was, therefore, committedby the Hon’ble Judges or B. Solomon or Keshav Singh for therespective parts taken by them in connection with thepetition. 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, theresolution of March 21, 1964 which directed the productionof the Hon’ble Judges in custody stated that they hadcommitted contempt of the House by what they respectivelydid in connection with Keshav Singh’s petition of March 19,1964 and that the Assembly disputes that the resolution soprovided. We have however to answer the question on thefacts as stated in the order of reference and have noconcern with what may be the correct facts. For one thing,it would not be competent for the Assembly to find theHon’ble Judges and B. Solomon to be guilty of contemptwithout giving them a hearing. Secondly, in the presentcase I have already shown that they were not so guilty.That being so, it was not competent for the Assembly todirect their production in custody. It has to be noticedthat in the present case the Assembly had directed theproduction of the Hon’ble Judges not for the purpose ofhearing them on the question of contempt but on the basisthat they had committed a contempt. It is unnecessary,therefore, to discuss the question of the privilege of theHouse to "cause persons to be brought in custody to the Barto answer charges of contempt". See May p. 94.Furthermore, the Assembly had modified its resolution tohave the Judges, Solomon and Keshav Singh brought undercustody and asked only for explanation from the Hon’bleJudges and B. Solomon for their conduct. Therefore,strictly speaking, the question as to bringing them incustody before the House does not arise on the facts of thecase.As to the competence of the Assembly to ask for explanationfrom the two Judges and B. Solomon, I think it had. That isone of the privileges of the House. As it has power tocommit for contempt, it must have power to ascertain factsconcerning 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 FullBench had before it petitions by the two Judges and B.Solomon537complaining of the resolution of the Assembly finding themguilty of contempt. I have earlier stated that on the factsof this case, they cannot be said to have been so guilty.It would follow that the Full Bench had the power to passthe 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 asingle, answer; the answers would vary as the circumstancesvary, and it is not possible to imagine all the sets ofcircumstances. Nor do I think we are called upon to do so.As learned advocates for the parties said, this question hagto be answered on the facts of this case. On those factsthe question has to be answered in the negative.I propose now to refer to an aspect of the case on which agreat deal of arguments had been addressed at the bar. Thatconcerns the liability of a Judge for contempt. If I amright in what I have said earlier, a judge has nojurisdiction to interfere with a commitment by a House undera general warrant. If he makes an order which interfereswith such a commitment, his action would be withoutjurisdiction. It would then be a nullity. Any officerexecuting that order would be interfering with the committalby the House and such interference would be illegal becausethe order is without jurisdiction and hence a nullity. Ifthe House proceeded against him in contempt, a Court of Lawcould not, in any event, have given him any relief based onthat order. It may be that the Judge by making such anorder would be committing contempt of the House for by it hewould be interfering with the order of the House illegallyand wholly without jurisdiction. The question however towhich I wish now to refer is whether the judge, assumingthat he has committed contempt, can be made liable for it bythe House. In other words, the question is-, has the Judgeimmunity against action by the House for contempt committedby him ? If his order was legal, then, of course, he wouldnot have committed contempt and question of immunity for himwould not arise.538It was said on behalf of the High Court that even assumingthat a Judge can commit contempt of a House, he has fullyimmunity. This was put first on the scheme of theConstitution which, it was said, favoured complete judicialindependence. It was next pointed out that under ourConstitution Judges cannot be removed from office except bythe process of impeachment under Art. 124(4), that is, bythe order of the President upon an address by each House ofParliament supported by a certain majority. Reliance wasthen placed on Art. 211 of the Constitution which prohibitsdiscussion in the Legislature of the conduct of a Judge in


the discharge of his duties and it was said that thisindicated that a Judge cannot be liable for contempt,because to make him so liable his conduct has to bediscussed. It was however conceded that Art. 211 did notgive an enforceable right in view of Art. 194(2) but it wassaid to indicate the intention of the Constitution-makersthat a Judge is to be immune from liability for contempt ofthe Assembly.The correctness of these contentions was challenged onbehalf of the Assembly. With regard to the point ofjudicial independence, it was said that it would hardly havebeen intended that a Judge should have immunity even thoughhe deliberately committed contempt of a House. It waspointed out that the contempt would be deliberate, becausethe Judge would know that in the case of a general warranthe had no jurisdiction to proceed further.As regards the argument based on the irremovability ofJudges except in the manner provided, it was said that thathad nothing to do with immunity for contempt. It waspointed out that the Constitution provided for Stateautonomy and it could not have been intended that when aJudge committed contempt of a State Legislature, the onlyremedy of that body would be to approach the CentralParliament with a request to take steps for the removal ofthe Judge. That would, also seriously impair the dignity ofthe State Legislature. The grant of relief, in such a casewould depend on the sweet-will of the Central Parliament andrelief would be unlikely to be obtained particularly whenthe parties in power in the State and. the Centre, were asmight happen, different. The irremovability of the Judgeswas not, it was said, intended to protect their deliberatewrongful act but only to secure their independence againstillegal interference from powerful influences. It wasargued that the immunity of a Judge would also put theofficers of the court who would be bound to539execute all his orders, in a helpless and precariouscondition, for they have to carry out even illegal orders ofthe Judges and thereby expose themselves to the risk ofpunishment legitimately imposed by an Assembly. It waslastly said that if independence of the Judges was necessaryfor the good of the country, so was the independence of theLegislatures.In regard to Art. 211, it was observed that it did not atall indicate an intention that the Judges would not beliable for contempt committed by themselves. Its mainobject, it was contended, was to permit the freedom ofspeech guaranteed by Art. 194(1) to be restrained in acertain manner. Furthermore, it was pointed out that Art.211 would not bar a discussion unless it was first decidedthat that discussion related to the conduct of a Judge inthe discharge of his duties, a decision which would often bedifficult to make and in any case the decision of the Housewould not be open to question in a court of law, for it isone of the privileges of the House of Commons which a StateLegislature has obtained under Art. 194(3) that it hasabsolute control of its internal proceedings: (see Bradlaughv. Gosset). On all these grounds it was contended that ourConstitution did not confer any immunity on a Judge for anadmitted contempt committed by him. It was pointed out thatin England judicial officers, including Judges of superiorcourts, did not have that immunity and reference was made toJay v. Topham(1) and case of Brass Crossby(2).I am not sure that I have set out all the arguments on thisquestion but what I have said will give a fair idea of the


competing contentions. For the purpose of this case, I donot think it necessary to go into the merits of thosecontentions. The questions that arise on the facts of thereference can, in my view, be answered without pronouncingon the question of immunity of Judges. It is often muchbetter that theoretical disputes should be allowed to lieburied in learned tracts and not be permitted to soil ourdaily lives. It would not require much strain to avoid inpractice circumstances which give rise to those disputes.In England they have done so- and there is no reason why inour country also that would not happen. I strongly feelthat it would serve the interest of our country much betternot to answer this question especially as it has really notarisen. I do hope that it will never arise.(1) 12 Howell’s State Trials 82 1.(2) 19 Howell’s State Trials 1138.540I think it right to mention that Mr. Verma appearing for theAdvocate-General of Bihar raised a point that this referencewas incompetent or at least should not be answered. He saidthat a reference can be made, by the President only when heneeded the advice of this Court with regard to difficultiesthat he might feel in the discharge of his duties. Mr.Verma’s contention was that the questions in the referencerelated to matters which did not concern the President atall. He said that the advice given by us on this referencewill not solve any difficulty with which the President maybe faced. On the other side, it was contended that thePresident might consider the amendment of the Constitutionin the light of the answers that he might receive from thisCourt. Mr. Verma replied to this answer to his argument bysaying that it was not for the President to consideramendments of the Constitution and that it was not theobject of Art. 143 that this Court should be consulted forthe purpose of initiating legislation. I am unable to saythat Mr. Verma’s contention is wholly unfounded but I do notpropose to express an opinion on that question in thepresent case.Before I conclude, I must say that I feel extremely unhappythat the circumstances should have taken the turn that theydid and that the reference to this Court by the Presidentshould have been rendered necessary. With a little moretact, restraint and consideration for others. the situationthat has arisen could have been avoided. I feel no doubtthat Beg and Sahgal JJ. would have dismissed the petition ofMarch 19, 1964 after they had possession of the full facts.I regret that instead of showing that restraint which theoccasion called for, particularly as the order ofimprisonment challenged was expressly stated to have beenpassed by a body of the stature of the Assembly for contemptshown to it, a precipitate action was taken. No doubt therewas not much time for waiting but Keshav Singh could notforce the hands of the Court by coming at the last moment.The result of the order of the Hon’ble Judges was nointerfere with a perfectly legitimate action of the Assemblyin, a case where interference was not justifiable and wascertainly avoidable. On the other hand, the Assembly couldhave also avoided the crisis by practising restraint and notstarting proceedings against the Judges at once. It mighthave kept in mind that the Judges had difficult duties toperform, that often they had to act on imperfect materials,and errors were, therefore, possible. It could haverealised that when it placed the facts before the Judges,its point of view would have been appreciated andappropriate orders


541made to undo what had been done in the absence of full mate-rials. Such an action of the Assembly would have enhancedits stature and prestige and helped a harmonious working ofthe different organs of the State.I wish to add that I am not one of those who feel that aLegislative Assembly cannot be trusted with an absolutepower of committing for contempt. The Legislatures have bythe Constitution been expressly entrusted with much moreimportant things. During the fourteen years that theConstitution has been in operation, the Legislatures havenot done anything to justify the view that they do notdeserve to be trusted with power. I would point out thatthough Art. 211 is not enforceable, the Legislatures haveshown an admirable spirit of restraint and have not evenonce in all these years discussed the conduct of Judges. Wemust not lose faith in our people, we must not think thatthe Legislatures would misuse the powers given to them bythe Constitution or that safety lay only in judicialcorrection. Such correction may produce friction and causemore harm than good. In a modem State it is often necessaryfor the good of the country that parallel powers shouldexist in different authorities. It is not inevitable thatsuch powers will clash. It would be defeatism to take theview that in our country men would not be available to workthese powers smoothly and in the best interests of thepeople and without producing friction. I sincerely hopethat what has happened will never happen again and ourConstitution will be worked by the different organs of theState amicably, wisely, courageously and in the spirit inwhich the makers of the Constitution expected them to act.542

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