176 of 1959
Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights
Basudeva Prasad M K Ramamurthi K N Keshwa and R Mahalingier for the petitioner
Lal Narain Sinha B K P Sinha L section Sinha and section P Varma for the respondents
M C Setalvad Attorney General for India C K Daphtary Solicitor General of India H J Umrigar and T M Sen for the Attorney General of India
August 1
The Judgment of the Court was delivered by SINHA C J
By this petition under article 32 of the Constitution the petitioner raises almost the same 13 98 controversy as had been done in Writ Petition No 122 of 1958 which was heard and determined by this Court by its judgment dated December 12 1958 and by Writ Petition No 106 of 1959 which was heard by this Court on November 10 11 and 12 1959 but which did not reach the stage of judgment by this Court inasmuch as the petitioner s Advocate requested the Court to permit him to withdraw the petition and the Court allowed the prayer and permitted the petitioner to withdraw the petition
In each of these petitions the petitioner who is a journalist by profession and is functioning as the Editor of  the Searchlight  an English daily newspaper published from Patna in the State of Bihar impugned the validity of the proceedings before the Committee of Privileges and prayed for restraining the opposite party namely the Chief Minister of Bihar as Chairman of the Committee of Privileges Bihar Legislative Assembly Committee of Privileges and the Secretary of the Bihar Legislative Assembly from proceeding against the petitioner for the publication in its issue dated May 31 1957 of the Searchlight an account of the debate in the Legislative Assembly Bihar on May 30 1957
The facts of the case have been stated in great detail in the majority judgment of this Court delivered by section R Das C J in M section M Sharma vs Sri Krishna Sinha 1
In the opening paragraph of this Court s judgment aforesaid the parties before the Court have been enumerated and the anomaly pointed out
This Court held in effect that under article 1943 of the Constitution a House of a Legislature of a State has the same powers privileges and immunities as the House of Commons of the Parliament of the United Kingdom had at the commencement of the Constitution
The House of Commons at the relevant date had the power or privilege of prohibiting the publication of even a true and faithful report of proceedings of the House and had a fortiori the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debate or proceedings
The powers or privileges of a House of State Legislature are the same as 1 1959 SUPP1 SCR 806
99 those of the House of Commons in those matters until Parliament or a State Legislature as the case may be may by law define those powers or privileges
Until that event has happened the powers privileges and immunities of a House of legislature of a State or of its members and committees are the same as those of the House of Commons at the date of commencement of our Constitution
This Court also expressed the view that Legislatures in this country like the House of Commons will no doubt appreciate the benefit of publicity and will not exercise those powers privileges and immunities except in gross cases
The minority judgment delivered by Subba Rao J on the other hand expressed the view that at the relevant date the House of Commons even as the Legislatures in this country had no privilege to prevent the publication of a correct and faithful report of the proceedings of those legislatures except those of secret sessions and bad only a limited privilege to prevent mala fide publication of garbled unfaithful or expunged reports of the proceedings
He also held that the petitioner had the fundamental right to publish the report of the proceedings of the Legislature
In the result this Court in view of the judgment of the majority dismissed the petition but made no order as to costs
This Court further held that the Assembly of Bihar was entitled to take proceedings for breach of its privileges and it was for the House itself to determine whether there had in fact been any breach of any of its privileges
After Writ Petition No 122 of 1958 had thus ended the petitioner again moved this Court under article 32 of the Constitution
That case was registered as Writ Petition No 106 of 1959
On January 5 1959 the petitioner received a notice that the case of breach of privilege against him would be considered by the Committee of Privileges of the Assembly on February 3 1959
That hearing was postponed from date to date until in August 1959 the petitioner filed his petition under article 32 of the Constitution
He contended in that petition that as a citizen of India the petitioner had the fundamental right under article 191a of the 100 Constitution to freedom of speech and expression which included the freedom of publication and circulation and that the Legislature of the State of Bihar could not claim any privilege contrary to the right thus claimed
In effect it was contended that the privilege conferred on the Legislature of a State by article 1943 of the Constitution was subject to the fundamental right of a citizen contained in article 191a
It was also contended that the first respondent the Chief Minister of Bihar who it was alleged had control over the majority of the members of the Bihar Legislative Assembly and of the Committee of Privi leges was proceeding mala fide in getting the proceedings instituted against the petitioner for alleged breach of the privilege of the House
Though not in terms but in effect the points raised in this petition were a reiteration of those already determined by this Court in its judgment aforesaid of December 12 1958
The prayer made in the petition was that the proceedings of the Committee of Privileges at its meeting held on August 10 1958 might be quashed and the respondents restrained by a writ in the nature of a writ of prohibition from proceeding against the petitioner in respect of publication aforesaid of the proceedings of the Bihar Legislative Assembly of May 30 1957
After the petitioner had made his writ application to this Court as aforesaid the Bihar Legislative Assembly reconstituted the Committee of Privileges of the Assembly and on that very date a member of the Legislative Assembly sought to move a motion in that Assembly for revival and re reference of the matter of the alleged breach of privilege by the petitioner
Some members of the Bihar Legislative Assembly objected to the motion being moved and the Speaker of the Assembly deferred giving his ruling on that objection
At the instance of some of the members of the Assembly the Speaker of the Assembly referred two questions to the Advocate General of Bihar for his opinion on the floor of the House on October 20 1959 namely 1 whether it was open to the Assembly to debate on an issue which might be sub judice in view of the writ petition aforesaid filed by the 101 petitioner in the Supreme Court under article 32 and 2 whether the matter which was dead by reason of prorogation of the House several times could be legally revived and restored
On October 20 1959 the Advocate General of Bihar attended the House and gave his opinion which it is not relevant to  state here
The Writ Petition 106 of 1959 was heard in part and allowed to be withdrawn as indicated above on November 12 1959
On November 24 1959 the petitioner received a fresh notice from the Secretary of the Legislative Assembly opposite party No 3 calling upon the petitioner to show cause on or before December 1 1959 why appropriate action should not be recommended against him for a breach of the privilege of the Speaker and the Assembly
The petitioner again instituted proceedings under article 32 of the Constitution complaining that the motion adopted by the Committee of Privileges of the Bihar Legislative Assembly at its meeting held on November 23 1959 amounted to an abridgement of his fundamental right of speech and expression guaranteed under article 191 a of the Constitution and was an  illegal and mala fide threat to the petitioner s personal liberty in violation of article 21 of the Constitution of India and that the Committee of Privileges respondent No 2 had no jurisdiction or authority to proceed against the petitioner as threatened by the notice aforesaid 
The grounds of attack raise substantially the same questions that were agitated on the previous occasions in this Court
It was contended before us that the petitioner as a citizen of India had the fundamental right of freedom of speech and expression which included the freedom of obtaining the earliest and most correct intelligence of the events of the time including the proceedings of a Legislature and publishing the same and that no Legislature of a State could claim a privilege so as to curtail that right
It was therefore contended that the majority decision of this Court in Pt
M section M Sharma vs Shri Sri Krishna Sinha 1 was wrong
In this connection it was also contended that 1 1959 SUPP 1 SCR 806 102 the rule of construction adopted by this Court in its pre vious decision had been wrongly applied
It was further contended that even if the House of a State Legislature had the same powers privileges and immunities as those of the House of Commons those will be only such as were being actually exercised at the date of the commencement of the Constitution and the right to prevent publication of its proceedings was not one of those powers privileges or immunities
An appeal was also made to article 21 of the Constitution and it was contended that no citizen could be deprived of his personal liberty except in accordance with the procedure established by law
Hence it was further contended that the malafide act of respondents 1 and 2 calling upon the petitioner to show cause was a threat to his fundamental right and finally it was contended that after several prorogations the previous proceedings for breach of privilege were dead and the House of the Assembly had therefore no power or jurisdiction to issue the fresh notice in accordance with the motion of November 23 1959 reviving the proceedings
It will thus appear that in the present proceedings also the very same questions which were discussed and decided in Writ Petition No 122 of 1958 are sought to be raised once again
In effect it is sought to be argued that the previous decision of this Court has proceeded on a wrong appreciation of the legal position
In short it is insisted that the petitioner has the fundamental right of publishing the proceedings of the Bihar Legislature and that the Legislature has no power to restrict or control the publication of its proceedings
The Government Advocate of Bihar on behalf of the opposite party has contended in the first instance that the present writ petition against the parties namely the Chairman and the Members of the Committee of Privileges respondents 1 and 2 is barred by the principle of res judicata and therefore not maintainable
His contention also is that the writ cannot issue either against an individual member or against the House of the Legislature as a whole in 103 respect of what has been done by it in exercise of its privilege of prohibiting or at any rate controlling the publication of its proceedings
On behalf of the petitioner it was contended by Mr Basudeva Prasad that respondent No 2 the Committee of Privileges has been reconstituted as aforesaid after the first decision of this Court which is sought to be availed of as res judicata and that therefore the rule of res judicata is inapplicable
In this connection it may be pointed out that in Writ Petition No 122 of 1958 Sri Krishna Sinha Chief Minister of Bihar was impleaded as opposite party No 1 in his capacity as the Chairman of the Committee of Privileges of the Bihar Legislative Assembly and opposite party No 2 was cited as Committee of Privileges Bihar Legislative Assembly without any names being given
In the present writ petition opposite party No 1 is the same
Opposite party No 2 is impleaded as the New Committee of Privi leges of Bihar Legislative Assembly and then a number of names are given including that of Dr Sri Krishna Sinha the Chief Minister as Chairman
Would it make any difference that though opposite party No 2 is the Committee of Privileges its personnel is different from that of the Committee of Privileges constituted as it was in 1958  In our opinion it does not make any difference
So long as the Assembly remains the same it is open to the Assembly to reconstitute its Committees according to the exigencies of the business of the Assembly
The Committee of Privileges is one of the agencies through which the Assembly has to transact its business
It is really the Assembly as a whole which is proceeding against the petitioner in purported exercise of its powers privileges and immunities as held by this Court in its judgment in Writ Petition No 122 of 1958
This Court has laid it down in the case of Raj Lakshmi Dasi vs Banamali Sen 1 that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full contest even though the first Tribunal which decided 1  104 the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings
In that case the rule of res judicata was applied to litigation in land acquisition proceedings
In that case the general principles of law bearing on the rule of res judicata and not the provisions of section 1 1 of the Code of Civil Procedure were applied to the case
The rule of res judicata is meant to give finality to a decision arrived at after due contest and after hearing the parties interested in the controversy
There cannot be the least doubt that though eo nomine opposite party No 2 were not the same but there is no escape from the conclusion that the Committee of Privileges is the same Committee irrespective of its personnel at a given time so long as it was a Committee constituted by the same Legislative Assembly
The question decided by this Court on the previous occasion was substantially a question affecting the whole Legislature of the State of Bihar and was of general importance and did not depend upon the particular constitution of the Committee of Privileges
It cannot therefore be said that the question decided by this Court on the previous occasion had not been fully debated and had not been decided after due deliberation
That there was difference of opinion and one of the Judges constituting the Court held another view only shows that there was room for difference of opinion
It was a judgment of this Court which binds the petitioner as also the Legislative Assembly of Bihar
For the application of the general principles of res judicata it is not necessary to go into the question whether the previous decision was right or wrong
In our opinion therefore the questions determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which as indicated above are substantially the same
It is manifest therefore that the petitioner has no fundamental right which is being threatened to be infringed by the proceedings taken by the opposite party
It now remains to consider the other subsidiary 105 questions raised on behalf of the petitioner
It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law
There are two answers to this contention firstly that according to the previous decision of this Court the petitioner has not the fundamental right claimed by him
He is therefore out of Court
Secondly the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed
Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner
No Court can go into those questions which are within the special jurisdiction of the Legislature itself which has the power to conduct its own business
Possibly a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings
It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its pro ceedings and to go into the question whether there has been any breach of its privileges the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business
Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business that cannot be a ground for interference by this Court under article 32 of the Constitution
Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction
Mere non compliance with rules of procedure cannot be a ground for issuing a writ under article 32 of the Constitution vide Janardan Reddy vs The State of Hyderabad 1
It was also sought to be argued that the subjectmatter of the proceedings in contempt whatever it was took place more than three years ago and that therefore it has become much too stale for proceeding 3  14 106 against the petitioner in contempt
In our opinion this is also a matter within the jurisdiction of the legislature which must decide whether or not it was recent enough to be taken serious notice of or whether any punishment in the event of the petitioner being found guilty is called for
These are matters with which this Court is in no way concerned
Mr Lal Narain Sinha the Government Advocate of Bihar who appeared on behalf of the respondents informed the Court that the Legislature was interested more in the vindication of its constitutional rights than in inflicting any punishment on the petitioner
Hence no more need be said on this aspect of the matter
It remains to consider one other point sought to be made on behalf of the petitioner that the Assembly had no power to proceed against the petitioner for breach of privilege in May 1957 when we know as a fact that the Assembly was prorogued several times between May 31 1957 and November 23 1959
In our opinion there is no substance in this contention for the simple reason that the prorogation of the Assembly does not mean its dissolution
The House remains the same only its sessions are interrupted by prorogation of the House according to the exigencies of public demands on the time and attention of the members of the Assembly and the volume of business of the Assembly itself
In this connection reliance was placed on the following passage in May s Parliamentary Practice 16th Edition p 279  The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again
Not only are the sittings of Parliament at an end but all proceedings pending at the time are quashed except impeachments by the Commons and appeals before the House of Lords
Every bill must therefore be renewed after a prorogation as if it were introduced for the first time
 The observations quoted above do not support the extreme contention raised on behalf of the petitioner that the proceedings in contempt are dead for all time
The effect of the prorogation only is to interrupt the proceedings which are revived on a fresh motion to 107 carry on or renew the proceedings
In this case it is not necessary to pronounce upon the question whether dissolution of the House necessarily has the effect of 2 completely wiping out the contempt or the proceedings relating thereto
In our opinion for the reasons given above no grounds have been made out for the exercise by this Court of its powers under article 32 of the Constitution
The petition is accordingly dismissed
There will be no order as to costs
Petition dismissed


Summary:
The assesses held the managing agency of a limited company in what was then called  British India and had also a pharma 728 ceutical business in the Baroda State which was at the relevant time an Indian State
The business in British India showed profits assessable under the provisions of the Business Profits Tax Act 1947 but the business carried on in Baroda resulted in a loss in the relevant chargeable accounting periods between 1946 and 1949
Before the Income tax authorities the assessee claimed that the loss suffered by it in its business in Baroda should be deducted in computing its business income liable to business profits tax but this claim was rejected on the ground that though under section 5 Of the Act if it stood by itself without any of the provisos the Act would be applicable to the Baroda business the third proviso had the effect of excluding that business from the purview of the Act except in so far as the income profits or gains of the business were received or deemed to be received in or brought into British India Held that the effect of the third proviso to section 5 of the Business Profits Tax Act 1947 was merely to exempt the income profits and gains of the Baroda business except when they were received or brought into British India but the business itself was one to which the Act was applicable under the substantive part Of section 5
Consequently the losses of the business could be set off against the profits of the business in British India
The relevant provisions of the Act are set out in the judg ment