ence No 1 of 1964
Special Reference under article 143 of the Constitution of India
CK Dhaphtary Attorney General HN Sanyal Solicitor General section V Gupte Addl
Solicitor General D R L lyengar and R H Dhebar for Union of India
MC Setalvad GS Pathak Jagadish Swaroop SN Andley PL Vohra Rameshwar Nath Mahinder Ndrain Harish K Puri and Suresh Vohra for Hon ble the Chief Justice and other Judges of the Allahabad High Court
G section Pathak Jagdish Swaroop Bishun Singh Gopal Behari JS Trivedi SN Pawnikar SN Andley PL Vohra and Rameshwar Nath for Hon ble Mr Justice NU Beg
NC Chatterjee Asif Ansari MK Ramamurthi and RK Garg for Hon ble Mr Justice GD Sehgal
H M Seervai Advocate General41 Mahashtra T Z Andhyarujina and SP Varma for UP Vidhan Sabha
NA Palkhivala JB Dadachanji OC Mathur and Ravinder Narain for Hon ble the Chief Justice Maharashtra High Court
J M Thakore Advocate General Gujarat J B Dadachanji O C Mathur and Revinder Jain for Hon ble the Chief Justice Gujarat High Court
D Narsaraju N R Ramdar OP Malhotra B Parthasarthy JB Dadachanji OC Mathur and Ravinder Narain for Hon ble the Chief Justice Orissa High Court
Murli Manohar Vyas section Murti BN Kirpal BL Khanna K K Jain Chitale and M section Gupta for Hon ble the Chief Justice Rajasthan High Court
Murli Manohar section Murti B N Kirpal B L Khanna K K jain chitle and M section Gupta for Hon ble the Chief Justice Madhya Pradesh High Court
DP Singh section Balkrishnan Shanti Bhatnagar and Lai Narain Singh for Hon ble the Chief Justice Patna High Court
C1165 2 424 AC Mitra and DN Mukherjee for Hon ble Speker West Bengal Legislative Assembly
section section Sanyal section K Acharyya and D N Mukheriee for Hon ble Chairman WBLC HM Seervai Advocate General Maharashtra TR Anand yarujina RA Gagrat and VJ Merchant for Hon ble the SpeakerChairman Maharashtra LA  LC GN loshi Atiqur Rehman and KL Hathi for Hon ble the Speaker Gujarat LA Atiqur Rehman and KL Hathi for Hon ble the Speaker Himachal Pradesh Vidhan Sabha
BC Barua Advocate General Assam and Naunit Lal for Hon ble the Speaker Assam Legislative Assembly
DM Sen Advocate General Nagaland and Naunit Lal for Nagaland Legislative Assembly
BP Jha for Hon ble the Chairman Bihar Legislative Council and Hon ble the Speaker Bihar Legislative Assembly
KL Misra Advocate General Uttar Pradesh BC Misra DD Chaudhury and CP Lal for the Advocate General for the State of UP M Adhikari Advocate General Madhya Pradesh and IN Shroff for the Advocate General for the State of Madhya Pradesh
N Krishnaswamy Reddy Advocate General Madras V Ramaswamy and AV Rangam for the Advocate General for State of Madras
BV Subrahamanyam Advocate General State of Andhra Pradesh M Jaganadha Rao and TVR Tatachari for the Advocate General for the State of Andhra Pradesh
B Sen SC Bose and PK Bose for the Advocate General for the State of West Bengal
GC Kasliwal Advocate General State of Rajasthan M V Goswami for the State of Rajasthan
SP Varma for the Advocate for the State of Bihar
JP Goyal for Ms Keshav Singh and B Soloman
M K Nambyar and N N Keswani for Bar Council of India
M K Nambyar Chaudhury Hyder Hussain B K Dhawan Bishun Singh Shiv Sastri and section section Shukla for Oudh Bar Association
425 R Jethmalni PK Kapila and A K Nag for Western India Advocates Association Intervener
section N Kakar C section Saran G P Gupta and section C Agarwal for Allahabad High Court Bar Association Intervener
MK Nambyar and VA Seyid Muhammad for Bar Association of India Intervener
R V section Mani Shaukat Husain E C Agarwala Shahzadi Mohiuddin and O C Agarwal for Applicants Interveners a Lok Raksha Samaj Sewak b All India Civil Liberties Council c Sapru Law Society
M K Rama murthi R K Garg D P Singh and section C Agar wal for Applicant Intervener Delhi Union of Journalists
K Rajendra Chaudhury and K R Chaudhury for Applicant Intervener Bihar Working Journalists Union
Chinta Subba Rao for Applicant Intervener Institute of Public Opinion
GAJENDRAGADKAR CJ delivered the Opinion on behalf of SUBBA RAO WANCHOO HIDAYATULLAH SHAH AND RAJGOPALA AYYANGAR JJ
and himself
SARKAR J delivered a separate Opinion
Gajendragadkar CJ This is Special Reference No 1 of 1964 by which the President has formulated five questions for the opinion of this Court under Article 1431 of the Constitution
The Article authorises the President to refer to this Court questions of law or fact which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them
Article 1431 provides that when such questions are referred to this Court by the President the Court may after such hearing as it thinks fit report to the President its opinion thereon
In his Order of Reference made on March 26 1964 the President has expressed his conclusion that the questions of law set out in the Order of Reference are of such a nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon
It appears that on March 14 1964 the Speaker of the Legislative Assembly of Uttar Pradesh administered in the name of and under the orders of the Legislative Assembly hereinafter referred to as the House a reprimand to Keshav Singh who is a resident of Gorakhpur for having committed contempt of the House and also for having committed a breach of the privileges of Narsingh Narain Pandey a member of the House
The contempt and 426 the breach of privileges in question arose because of a pamphlet which was printed and published and which bore the signature of Keshav Singh along with the signatures of other persons
In pursuance of the decision taken by the House later on the same day the Speaker directed that Keshav Singh be committed to prison for committing another contempt of the House by his conduct in the House when he was summoned to receive the aforesaid reprimand and for writing a disrespectful fetter to the Speaker of the House earlier
According to this order a warrant was issued over the signature of the Speaker of the House Mr Verma directing that Keshav Singh be detained in the District Jail Lucknow for a Period of seven days and in execution of the warrant Keshav Singh was detained in the Jail
On March 19 1964 Mr B Solomon an Advocate practising before the Lucknow Bench of the Allahabad High Court presented a petition to the High Court on behalf of Keshav Singh under section 491 of the Code of Criminal Procedure 1898 as well as under Article 226 of the Constitution
To this petition were implemented the speaker of the House the House the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail Lucknow where Keshav Singh was serving the sentence of improvement imposed on him by the House as respondents 1 to 4 respectively
The petition thus presented on behalf of Keshav Singh alleged that his detention in jail was illegal on several grounds
According to the petition Keshav Singh had been ordered to be imprisoned after the reprimand had been administered to him and that made the order of imprisonment illegal and without authority Me petition further alleged that Keshav Singh had not been given an opportunity to defend himself and that his detention was mala fide and was against the principles of natural justice
It was also his case that respondents 1 to 3 had no authority to send him to the District Jail Lucknow and that made his detention in jail illegal
After the said petition was filed before the Lucknow Bench of the Allahabad High Court the learned Advocates for both the parties appeared before Beg and Sahgal JJ
at 2 Pm
and agreed that the petition should be taken up At 3 PM the same day
Mr Solomon represented keshav Singh and Mr K N Kapur Assistant Government Advocate appeared for all the respondents
Accordingly the petition was taken up before the Court at 3 Pm
On this occasion Mr Solomon appeared for the petitioner but Mr Kapur did not appear in Court
The Court then passed an Order that the applicant should be released on bail 427 on furnishing two sureties in a sum of Rs 1000 each and a personal bond in the like amount to the satisfaction of the District Magistrate Lucknow
The Deputy Registrar of the Court was asked to take necessary action in connection with the Order
The Court also directed that the applicant shall remain present in Court at every hearing of the case in future
Thus the petition was admitted and notice was ordered to be issued to the respondents with the additional direction that the case should be set down for hearing as early as possible
This happened on March 19 at 3 Pm
On March 20 1964 Mr Shri Rama the Government Advocate wrote to Mr Nigam Secretary to Government UP Judicial Department Lucknow giving him information about the Order passed by the High Court on Keshav Singh s application
In this communication Mr Shri Rama has stated that after the matter was mentioned to the Court at 2 Pm it was adjourned to 3 Pm at the request of the parties soon thereafter Mr Kapur contacted Mr Nigam on the phone but while the conversation was going on the Court took up the matter at 3 Pm and passed the Order directing the release of Keshav Singh on terms and conditions which have already been mentioned
Mr Shri Rama sent to Mr Nigam three copies of the application made by Keshav Singh and suggested that arrangement should be made for making an appropriate affidavit of the persons concerned
He also told Mr Nigam that the application was likely to be listed for hearing at a very early date
Instead of complying with the request made by the Government Advocate and instructing him to file a return in the application made by Keshav Sin  the House proceeded to take action against the two learned Judes why passed the order on Keshav Singh s application as well as Keshav Singh and his Advocate on March 21 1964
It appears that two Members of the House brought to the notice of the Speaker of the House on the 20th March what had happened before the Court in regard to the application made by Keshav Singh
Taking notice of the order passed by the High Court on Keshav Singh s petition the House proceeded to pass a resolution on March 21 1964
This resolution said that the
House Was of the denote view at Ms G D Sahgal N U Beg
Keshav Singh and P Solomon had committed contempt of the House and therefore it was ordered that Keshav Singh Should immediately be taken into custody and kept confined in the District Jail Lucknow for the remaining term of his impri sonment and Ms N U Beg D Sahgal and B Solomon should 428 be brought in custody before the House
The resolution further added that after Keshav Singh completed the term of his imprisonment he should be brought before the House for having again committed contempt of the House on March 19 1964
The two learned Judges heard about this resolution on the radio on the evening of March 21 and read about it in the morning edition of the Northern India Patrika published on March 22 1964
That is why they rushed to the Allahabad High Court with separate petitions under article 226 of the Constitution
petitions alleged that the impugned Resolution passed by the House was wholly unconstitutional and violated the provisions of article 211 of the Constitution
According to the petitions the application made by Keshav Singh under article 226 was competent and in making an order releasing Keshav Singh the Judges were exercising their jurisdiction and authority as Judges of the High Court under article 226
Their contention was that the resolution passed by the House amounted to contempt of Court and since it was wholly without jurisdiction it should be set aside and by an interim order its implementation should be stayed
To these petitions were impleaded as respondents Mr Verma the Speaker Vidhan Sabha Lucknow the State of Uttar Pradesh and the Marshal Vidhan Sabha
These petitions were filed on March 23 1964
Apprehending that these developments had given rise to a very serious problem a Full Bench of the Allahabad High Court consisting of 28 Judges took up on the same day the petitions presented before them by their two colleagues at Lucknow directed that the said petitions should be admitted and ordered the issue of notices against the respondents restraining the Speaker from issuing the warrant in pursuance of the direction of the House given to him on March 21 1964 and from securing execution of the warrant if already issued and restraining the Government of UP and the Marshal of the House from executing the warrant
Meanwhile on March 25 1964 Mr Solomon the learned Advocate of Keshav Singh presented a similar petition to the High Court under article 226
He prayed for a writ of mandamus on the same lines as the petitions filed by the two learned Judges and he urged that suitable order should be passed against the House because it had committed contempt of Court
To his petition Mr Solomon had impleaded seven respondents they were the Speaker of the House Mr Verma the Legislative Assembly UP the Marshal of the UP Legislative Assembly 429 Mr Saran and Mr Ahmad Members of the Legislative Assembly UP who brought to the notice of the House the orders passed by the two learned Judges of the High Court and the State of Uttar Pradesh
This application again was heard by a Full Bench of 28 Judges of the Allahabad High Court on March 25 and after admitting the petition an interim order was passed prohibiting the implementation of the resolution the validity of which was challenged by the petitioner
At the preliminary hearing of this petition notice had been served on the Senior Standing Counsel who was present in Court
He stated to the Court that he had no instructions at that stage to oppose the application
That is why the Court issued notice of the application and passed what it thought would be appropriate orders
On the same day the House passed a clarificatory resolution
This resolution began with the statement that a misgiving was being expressed with regard to the motion passed by the House in that it could be construed as depriving the persons concerned of an opportunity of explanation and it added that it was never the intention of the House that a charge against a High Court Judge for committing breach of privilege or contempt of the House should be disposed of in a manner different from that governing breach of privilege or contempt committed by any other person
The House therefore resolved that the question of contempt may be decided after giving an opportunity of explanation to the persons named in the original resolution of March 20 1964 according to rules
As a result of this resolution the warrants issued for the arrest of the two learned Judges and Mr Solomon were with drawn with the result that the two learned Judges and Mr Solomon were placed under an obligation to appear before the House and offer their explanations as to why the House should not proceed against them for their alleged contempt of the House
When the incidents which happened in such quick succession from March 19 to March 25 1964 had reached this stage the President decided to exercise his power to make a reference to this Court under article 1431 of the Constitution on March 26 1964
The Order of Reference shows that it appeared to the President that the incidents in question had given rise to a serious conflict between a High Court and a State Legislature which involved important and complicated questions of law regarding the powers and jurisdiction of the High Court and its Judges in relation to the State Legislature and its officers and regarding the 430 powers privileges and immunities of the State Legislature and its members in relation to the High Court and its Judges in the discharge of their duties
The President was also satisfied that the questions of law set out in his Order of Reference were of such a nature and of such public importance that it was expedient to obtain the opinion of this Court on them
That is the genesis of the present reference
The questions referred to this Court under this Reference read as follows  1 Whether on the facts and circumstances of the case it was competent for the Lucknow Bench of the High Court of Uttar Pradesh consisting of the Hon ble Mr Justice N U Beg and the Hon ble Mr Justice G D Sahgal to entertain and deal with the petition of Mr Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Predesh for its contempt and for infringement of its privileges and to pass orders releasing Mr Keshav Singh on bail pending the disposal of his said petition 2 Whether on the facts and circumstances of the case Mr Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid Mr B Solomon Advocate by presenting the said petition and the said two Hon ble  Judges by entertaining and dealing with the said peti tion and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh 3 Whether on the facts and circumstances of the case it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon ble Judges and Mr B Solomon Advocate before it in custody or to call for their explanation for its contempt 4 Whether on the facts and circumstances of the case it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon ble Judges and Mr B Solomon Advocate and to pass interim orders restraining the Speker of the Legislative Assembly 431 of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly and 5 Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers privileges and immunities
At the hearing of this Reference Mr Varma has raised a preliminary objection on behalf of the Advocate General of Bihar
He contends that the present Reference is invalid under article 1431 because the questions referred to this Court are not related to any of the entries in Lists 1 and III and as such they cannot be said to be concerned with any of the powers duties or functions conferred on the President by the relevant articles of the Constitution
The argument appears to be that it is only in respect of matters failing within the powers functions and duties of the President that it would be competent to him to frame questions for the advisory opinion of this Court under article 1431
In our opinion this contention is wholly misconceived
The words of article 1431 are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact which has arisen or which is likely to arise provided it appears to the President that such a question is of such a nature or of such public importance that it is expedient to obtain the opinion of this Court upon it
It is quite true that under article 1431 even if questions are referred to this Court for its advisory opinion this Court is not bound to give such advisory opinion in every case
article 1431 provides that after the questions formulated by the President are received by this Court it may after such hearing as it thinking fit report to the President its opinion thereon
The use of the word may in contrast with the use of the word shall in the provision prescribed by article 143 2 clearly brings opt the fact that in a given case this Court may respectfully refuse to express its advisory opinion if it is satisfied that it should not express its opinion having regard to the nature of the questions forwarded to it and having regard to other relevant facts and circumstances
article 143 2 432 deals with cases in which the President may refer a dispute to this Court notwithstanding the prohibition prescribed by the proviso to article 131 and it adds that when such a reference is made the Court shall after such hearing as it thinks fit report to the President its opinion thereon
In other words whereas in the case of reference made under article 1432 it is the constitutional obligation of this Court to make a report on that reference embodying its advisory opinion in a reference made under article 1431 there is no such obligation
In dealing with this latter class of reference it is open to this Court to consider whether it should make a report to the President giving its advisory opinion on the questions under reference
This position however has no bearing on the question raised by Mr Varma
The validity of the objection raised by Mr Varma must be judged in the light of the words of article 1431 themselves and these words are of such wide amplitude that it would be impossible to accede to the argument that the narrow test suggested by Mr Varma has to be applied in determining the validity of the reference itself
What article 1431 requires is that the President should be satisfied that a question of law or fact has arisen or is likely to arise
He should also be satisfied that such a question is of such a nature and of such public importance that it is expedient to obtain the opinion of this Court on it
Prima facie the satisfaction of the President on both these counts would justify the reference and it is only where this Court feels that it would be inadvisable for it to express its advisory opinion on it that it may respectfully refuse to express any opinion
But there can be no doubt that in the present case it would be impossible to suggest that questions of fact and law which have been referred to this Court have not arisen and they are not of considerable public importance
Therefore we do not think there is any substance in the preliminary objection raised by Mr Varma
The references made to this Court since the Constitution was adopted in 1950 illustrate how  it would be inappropriate to apply the narrow test suggested by Mr Varma in determining the competence or validity of the reference
The first Special Reference No 1 of 1951 was made to this Court to obtain the advisory opinion of this Court on the question about the validity and constitutionality of the material provisions of the  the Ajmer Merwara Extension of Laws Act 1947 and the Part C States Laws Act 19511
The second Special 1 In re the   433 Reference1 was made in 1958
This had reference to the validity of certain provisions of the Kerala Education Bill 1957 which had been passed by the Kerala Legislative Assembly but had been reserved by the Governor for the consideration of the President
The third Special Reference1 was made in 1959 and it invited the advisory opinion of this Court in regard to the validity of the material provisions of an agreement between the Prime Ministers of India and Pakistan which was described as the Indo Pakistan Agreement
The fourth Special Reference2 was made in 1962
By this reference the President forwarded for the advisory opinion of this Court questions in regard to the validity of the relevant provisions of a draft Bill which was intended to be moved in the Parliament with a view to amend certain provisions of the and the 
It would thus be seen that the questions so far referred by the President for the advisory opinion of this Court under article 143 1 do not disclose a uniform pattern and that is quite clearly consistent with the broad and wide words used in article 1431
It is hardly necessary to emphasise that the questions of law which have been forwarded to this Court on the present occasion are of very great constitutional importance
The incidents which have given rise to this Reference posed a very difficult problem and unless further developments in pursuance of the orders passed by the two august bodies were arrested they were likely to lead to a very serious and difficult situation
That is why the President took the view that a case for reference for the advisory opinion of this Court had been established and he accordingly formulated five questions and has forwarded the same to us for our advisory opinion
Under article 1431 it may be competent to the President to formulate for the advisory opinion of this Court questions of fact and law relating to the validity of the impinged provisions of existing laws it may be open to him to formulate questions in regard to the validity of provisions proposed to be included in the Bills which would come before the Legislatures it may also be open to him to formulate for the advisory opinion of this Court questions of constitutional importance like the present and it may be that the President may on receiving our answers consider whether the Union Government or the State Government should be requested to take any suitable or appropriate action either legislative or executive in 1 In re the Kerala Education Bill 1957 1959 SCR 995
2 In re the Berubari Union  3 In re the Bill to Amend etc  434 accordance with the opinion expressed by this Court
That is why we feel no difficulty in holding that the present Reference is competent
As we have already indicated when a Reference is received by this Court under article 1431 this Court may in a given case for sufficient and satisfactory reasons respectfully refuse to make a report containing its answers on the questions framed by the President such a situation may perhaps arise if the questions formulated for the advisory opinion of this Court are purely socioeconomic or political questions which have no relation whatever with any of the provisions of the Constitution or have otherwise no constitutional significance
It is with a view to confer jurisdiction on this Court to decline to answer questions for such strong and compelling reasons that the Constitution or have used the word may  in article 143 1 as distinct from article 143 2 are the word used is shall 
In the present case we are clearly of opinion that the questions formulated for our advisory opinion are questions of grave constitutional importance and significance and it is our duty to make a report to the President embodying our answers to the questions formulated by him
That takes us to the merits of the controversy disclosed by the questions formulated by the President for our advisory opinion
This Reference has been elaborately argued before us
The learned Attorney General opened the proceedings before us and stated the relevant facts leading to the Reference and indicated broadly the rival contentions which the House and the High Court sought to raise before us by the statements of the case filed on their behalf
Mr Seers the learned Advocate General of Maharashtra appeared for the House and presented before the Court a very learned impressive and exhaustive argument
He was followed by several learned counsel who broadly supported the stand taken by the House
Mr Setalvad who appeared for the Judges of the Allahabad High Court addressed to us a very able argument With his characteristic brevity and lucidity and he was in turn followed by several learned counsel who appeared to support the stand taken by the Judges
Durng the course of the debate several propositions were canvassed before us and a very large area of constitutional law was covered
We ought therefore to make it clear at the outset that in formulating our answers to the questions framed by the President in the present Reference we propose to deal with only such points as in our opinion have a direct and material bearing on the problems posed by the said questions
It is hardly necessary to emphasise that in dealing With constitutional matters the Court 435 should be slow to deal with questions which do not strictly arise
This precaution is all the more  necessary in dealing with a reference made to this Court under article 1431
Let us then begin by stating broadly the main contentions urged on behalf of the House and on behalf of the Judges and the Advocate
Mr Seervai began his arguments by pointing out the fact that in dealing with reference under article 1431 the Court is not exercising what may be described as its judicial function
There are no parties before the Court in such a reference and there is no his
The opinion expressed by the Court on the reference is therefore advisory and so he contends that though ha appears before us in the present reference on behalf  of the House he wants to make it clear that the House does not submit to the jurisdiction of this Court in any manner in respect of the area of controversy covered by the questions
In other words he stated that his appearance before us was without prejudice to his main contention that the question about the existence and extent of the powers privileges and immunities of the House as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House and whatever this Court may say will not preclude the House from deciding for itself the points referred to us under this Reference
This stand was based on the ground that the opinion pressed by us is advisory and not in the nature of a judicial adjudication between the parties before the Court as such The same stand was taken by Mr Seervai in regard to article 1943 of the Constitution
article 1943 deals with the question about the powers privileges and immunities of the Legislatures and of the Members and Committees thereof
We will have occasion to deal with the provisions of this Article later on
For the present it is enough to state that according to Mr Seervai it is the privilege of the House to construe the relevant provisions of  article 1943 and determine for itself what its powers privileges and immunities are and that being so the opinion expressed by this Court on the questions relating to the existence and extent of its powers and privileges will not preclude the House from determining the same questions for itself unfettered by the views of this Court
Having thus made his position clear in regard to the claim which the House proposes to make in respect of its powers and Privileges Mr Seervai contended that even in England this dualism between the two rival jurisdictions claimed by the Judicature and the Parliament has always existed and it still continue 436 to be unresolved
On some occasions the dispute between the Judicature and the House of Commons has assumed a very bitter form and it has disclosed a complete antinomy or contradiction in the attitudes adopted by the two respective august bodies
The courts claimed that they had a right to decide the question about the existence and extent of powers and privileges in question and the Parliament consistently refused to recognise the jurisdiction of the courts in that behalf during the 17th 18th and 19th centuries
The Parliament conceded that it could not create any new privileges but it insisted on treating itself as the sole and exclusive judge of the existing privileges and was not prepared to part with its authority to determine what they were or to deal with their breach and how to punish the delinquent citizens
On the other hand the courts insisted on examining the validity of the orders passed by the Parliament on the ground of breach of privilege and the dualism thus disclosed persisted for many years
Mr Seervai argues that the House for which he appears adheres to the stand which the House of Commons took in similar controversies which led to a conflict between the Judicature and itself on several occasions in the past
Consistently with this attitude be denies the jurisdiction of the Allahabad High Court to deal with the points raised by Keshav Singh in his writ petition
Logically his argument is that the presentation of the petition by Keshav Singh and his Advocate amounted to contempt of the House and when the learned Judges entertained the petition and passed an interim order on it they committed contempt of the House
That is the view taken by the House and the propriety correctness or validity of this view is not examinable by the Judicature in this country
Alternatively Mr Seervai put his argument on a slightly different basis
He conceded that for over a century past in England this controversy can be taken to have been settled to a large extent by agreement between the Judicature and the House of Commons
It now appears to be recognised by the House of Commons that the existence and extent of privilege can be examined by the courts
It also appears to be recognised by the House of Commons that if in exercise of its power to punish a person for its contempt it issues a speaking warrant it would be open to the court to consider whether the reasons set out in the warrant amount to contempt or not
To this limited extent the jurisdiction of the Judicature is recognised and consistently for the last century whenever it became necessary to justify the orders passed by it for its contempt a return has always been 437 filed in courts
Mr Seervai however emphasises the fact that even as a result of this large measure of agreement between the Judicature and the House of Commons on the question about the nature and extent of privilege it appears to be taken
as settled that if an unspeaking or general warrant is issued by the House of Commons to punish a person who is guilty of its contempt the courts would invariably treat the said general warrant as conclusive and would not examine the validity of the order passed by the House
In the present case according to Mr Seervai the resolution which has been passed by the House against the two learned Judges as well as against Mr Solomon is in the nature of a general resolution and though the warrants issued against the Judges have been withdrawn it is clear that the decision of the House and the warrants which were initially ordered to be issued in pursuance of the said resolution were in the nature of general resolution and general warrants and so it would not be open to this Court to enquire the reasons for which the said warrants were issued
The resolution in question and the warrants issued pursuant to it are conclusive and must be treated as such
The argument therefore is that in answering the question formulated under the present Reference we should give effect to this position which appears to have been evolved by some sort of implied agreement between the Judicature and the House of Commons
This agreement shows that the right to determine questions of contempt and to decide adequacy of punishment for the said contempt belong exclusively to the House and if in pursuance of the said exclusive power a general warrant is issued the House can never be called upon to explain the genesis or the reasons for the said warrant
This itself is an integral part of the privileges and powers of the House and this integral part according to the House has been brought into India as a result of article 1943 of the Constitution
In other words the argument is that even if this Court has jurisdiction to determine the scope and effect of article 1943 it should bear in mind the fact that this particular Power to issue an unspeaking general warrant and to insist upon the Judicature treating the said warrant as conclusive is a part of the privileges to which the latter part of article 1943 refers
It is on this broad ground that Mr Seervai wanted us to frame our answers to the questions which are the subject matter of the Reference
On the other hand Mr Setalvad for the Judges contends that there is no scope for importing into our Constitution the dualism which existed in England between the Judicature and the House of Commons
He contends that there can be no doubt 438 that the question of construing article 1943 falls within the exclusive jurisdiction of this Court and the High Courts and that the construction which this Court would place upon the relevant words used in the latter part of article 1943 would finally determine the scope extent and character of the privileges in question
According to Mr Setalvad article 1943 cannot be read in isolation but must be read in its context and in the light of other important constitutional provisions such as articles 32 211 and 226
When the material portion of article 1943 is thus read it would appear that there is no scope for introducing any antinomy or conflict or dualism between the powers of the High Court and those of the House in relation to matters which have given rise to the present questions
He further urges that it would be idle for the House to adopt an attitude which the House of Commons in England appears to have adopted in the 17th 18th and 19th centuries when conflicts arose between the said House and the Judicature
For more than a century no attempt has been made by the House of Commons says Mr Setalvad to contend that if a citizen who is punished by the House for its alleged contempt committed by him would be guilty of another contempt if he moved the Court in its habeas corpus jurisdiction nor has Any attempt been made during this period by the House of Commons to proceed against a lawyer Who presents an application for habeas corpus or against Judas who entertain such applications and so the argument is that we ought to deal with the present dispute on the basis of the common agreement which has by convention been evolved between the two august and powerful institutions the Judicature and the Legislature
Mr Setalvad conceded that there appears to be some conven tion recognised by the English courts by which they treat a general or unspeaking warrant issued by the House as usually conclusive but this aspect of the matter according to him is the result of convention or comity and cannot be treated as an integral part of the privilege of the House itself
The basis for evolving this con I mention is rooted in the history of England because the Parliament was the highest Court of Justice at one time and it is because of this history that the House of Commons came also to be regarded as a superior Court of Record
Such at assumption cannot be made in respect of the House in the present proceedings
Besides in dealing with the question about the effect of a general warrant the Court cannot ignore the significance of articles 32 211 and 226 of the Constitution
Basing himself broadly on these arguments Mr Setalvad contends that the Constitution has resolved the problem of dualism in our country by 439 conferring on the High Courts and this Court the jurisdiction to deal with claims made by the citizens whose fundamental rights have been invaded and that means that in this country if an application for habeas corpus is made it would be competent to
this Court or the High Courts to examine the validity of the order passed by any authority including the Legislature and that must necessarily involve the consequence that an unspeaking warrant cannot claim the privilege of conclusiveness
That in brief in its broad features is the approach adopted by Mr Setalvad before us
It will thus be seen that the main controversy disclosed by the five questions formulated by the President ultimately lies within a very narrow compass
Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of  the House  Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt  And if in enforcement of its decision the House issues a general or unspeaking warrant is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House  The argument urged by Mr Seervai on behalf of the House is that in the case of a general warrant the High Court has no jurisdiction to go behind the warrant and in the present case since it has entertained the petition and passed an order releasing Keshav Singh on bail without examining the warrant and even before a return was filed by the respondents it has acted illegally and without jurisdiction and so the learned Judges of the High Court the Counsel and the party are all guilty of contempt of the House
Mr Seervai urges that in any case in habeas corpus proceedings of this character the High Court had no jurisdiction to grant interim bail
It is not seriously disputed by Mr Setalvad that the House has the power to inquire whether its contempt has been committed by anyone even outside its four walls and has the power to impose punishment for such contempt but his argument is that having regard to the material provisions of our Constitution it would not be open to the House to make a claim that its general warrant should be treated as conclusive
In every case where a party has been Sentenced by the House for contempt and detained it would be open to him to move the High Court for appropriate relief under article 226 and the High Court would be entitled to examine the merits of his pleas even though the warrant may be general PCI65 3 440 or unspeaking
According to Mr Setalvad since the High Court has jurisdiction to entertain a Writ Petition for habeas corpus under article 226 it has also the power to pass an order of interim bail
Thus the dispute really centers round the jurisdiction of the High Court to entertain a habeas corpus petition even in cases where a general or unspeaking warrant has been issued by the House directing the detention of the party in contempt
Though the ultimate solution of the problem posed by the questions before us would thus he within a very narrow compass it is necessary to deal with some wider aspects of the problem which incidentally arise and the decision of which will assist us in rendering our answers to the questions framed in the present Reference
The whole of the problem thus presented before us has to be decided in the light of the provisions contained in article 194 3  of the Constitution and in that sense the interpretation of article 1943 is really the crux of the matter
At this stage it is necessary to read Article 194  194
1 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature there shall be freedom of speech in the Legislature of every State
2 No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report paper votes or proceedings
3 In other respects the powers privileges and immunities of a House of the Legislature of a State and of the members and the committees of a House of such Legislature shall be such as may from time to time be defined by the Legislature by law and until so defined shall be those of the House of Commons of Parliament of the United Kingdom and of its members and committees at the commencement of this Constitution
4 The provisions of clauses 1 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature  441 It will be noticed that the first three material clauses of article 194 deal with three different topics
Clause 1 makes it clear that the freedom of speech in the Legislature of every State which it prescribes is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature
While interpreting this clause it is necessary to emphasis that the provisions of the Constitution subject to which freedom of speech has been conferred on the legislators are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature
The rules and standing orders may regulate the procedure of the Legislature and some of the provisions of the Constitution may also purport to regulate it these are for instance Articles 208 and 211
The adjectival clause regulating the procedure of the Legislature governs both the preceding clauses relating to the provisions of the Constitution and the rules and standing orders Therefore clause 1 confers on the legislators specifically the right of freedom of speech subject to the limitation prescribed by its first part
It would thus appear that by making this clause subject only to the specified provisions of the Constitution the Constitution makers wanted to make it clear that they thought it necessary to confer on the legislators freedom of speech separately and in a sense independently of article 191a
If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in article 191a it would have been unnecessary to confer the same right specifically in the manner adopted by article 1941 and so it would be legi timate to conclude that article 191a is not one of the provisions of the Constitution which controls the first part of clause 1 of article 194
Having conferred freedom of speech on the legislators clause 2 emphasises the fact that the said freedom is intended to be absolute and unfettered
Similar freedom is guaranteed to the legislators in respect of the votes they may give in the Legislature or any committee thereof
In other words even if a legislator exercises his right of freedom of speech in violation say of article 21 1 he would not be liable for any action in any court
Similarly of the legislator by his speech or vote is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly he would not be answerable for the said contravention in any court
If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law immunity has been conferred on him from any action in any court by this clause
He 442 may be answerable to the House for such a speech and the Speaker may take appropriate action against him in respect of it but that is another matter
It is plain that the Constitution makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause 2
Thus clause 1 confers freedom of speech on the legislators within the legislative chamber and clause 2 makes it plain that the freedom is literally absolute and unfettered
That takes us to clause 3
The first part of this clause empowers the Legislatures of States to make laws prescribing their powers privileges and immunities the latter part provides that until such laws are made the Legislatures in question shall enjoy the same powers privileges and immunities which the House of Commons enjoyed at the commencement of the Constitution
The Constitution makers must have thought that the Legislatures would take some time to make laws in respect of their powers privileges and immunities
During the interval it was clearly necessary to confer on them the necessary powers privileges and immunities
There can be little doubt that the powers privileges and immunities which are contemplated by cl
3 are incidental powers privileges and immunities which every Legislature must possess in order that it may be able to function effectively and that explains the purpose of the latter part of clause 3
This clause requires that the powers privileges and immuni ties which are claimed by the House must be shown to have subsisted at the commencement of the Constitution ie on January 26 1950
It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition some were given up in course of time and some virtually faded out by desuetude and so in every case where a power is claimed it is necessary to enquire whether it was an existing power at the relevant time
It must also appear that the said power was not only claimed by the House of Commons but was recognised by the English Courts
It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts it would still be upheld under the latter part of clause 3 only on the ground that it was in fact claimed by the House of Commons
In other words the inquiry which is prescribed by this clause is  is 443 the power in question shown or proved to have subsisted in the House of Commons at the relevant time  Clause 4 extends the provisions prescribed by the three preceding clauses to certain persons therein described
It will thus be seen that all the four clauses of article 194 are not in terms made subject to the provisions contained in Part In
In fact clause 2 is couched in such wide terms that in exercising the rights conferred on them by cl
1 if the legislators by their speeches contravene any of the fundamental rights guaranteed by Part III they would not be liable for any action in any court
Nevertheless if for other valid considerations it appears that the contents of cl
3 may not exclude the applicability of certain relevant provisions of the Constitution it would not be reasonable to suggest that those provisions must be ignored just because the said clause does not open with the words subject to the other provisions of the Constitution In dealing with the effect of the provisions contained in cl
3 of article 194 wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights an attempt win have to be made to resolve the said conflict by the adoption of the rule of harmonious construction
What would be the result of the adoption of such a rule we need not stop to consider at this stage
We will refer to it later when we deal with the decision of this Court in Pandit M section M Sharma vs Shri Sri Krishna Sinha  Others1
The implications of the first part of clause 3may however be examined at this stage
The question is if the Legislature of a State makes a law which prescribes its powers privileges and immunities would this law be subject to article 13 or not  It may be recalled that article 13 provides that laws inconsistent with or in derogation of the fundamental rights would be void
Clause 1 of article 13 refers in that connection to the laws in force in the territory of India immediately before the commencement of the Constitution and clause 2 refers to laws that the State shall make in future
Prima facie if the legislature of a State were to make a law in pursuance of the authority conferred on it by clause 3 it would be law within the meaning of article 13 and clause 2 of article 13 would render it void if it contravenes or abridges the fundamental rights guaranteedby Part M
As we will presently point out that is the effect of the decision of this Court in Pandit Sharma s1 case
In other words it must now be taken as settled 1 1959 Supp 1 SCR 806
444 that if a law is made under the purported exercise of the power conferred by the first part of clause 3 it will have to satisfy the test prescribed by the fundamental rights guaranteed by the Constitution
If that be so it becomes at once material to enquire whether the Constitution makers had really intended that the limitations prescribed by the fundamental rights subject to which alone a law can be made by the Legislature of a State prescribing its powers privileges and immunities should be treated as irrelevant in construing the latter part of the said clause
The same point may conveniently be put in another form
If it appears that any of the powers privileges and immunities claimed by the House are inconsistent with the fundamental rights guaranteed by the Constitution how is the conflict going to be resolved
Was it the intention of the Constitution to place the powers privileges and immunities specified in the latter part of cl
3 on a much higher pedestal than the law which the Legislature of a State may make in that behalf on a future date  As a matter of construction of clause 3 the fact that the first part of the said clause refers to future laws which would be subject to fundamental rights may assume significance in interpreting the latter part of clause 3
That in brief is the position of the first three material provisions of article 194
The next question which faces us arises from the preliminary contention raised by Mr Seervai that by his appearance before us on behalf of the House the House should not be taken to have conceded to the Court the jurisdiction to construe article 1943 so as to bind it
As we have already indicated his stand is that in the matter of privileges the House is the sole and exclusive judge at all stages
It may be that technically the advisory opinion rendered by this Court on the Reference made to it by the President may not amount to judicial adjudication properly so called and since there are no parties as such before the Court in the Reference nobody would be bound by our answers
But apart from this technical aspect of the matter it is necessary that we should determine the basic question as to whether even in the matter of privileges the Constitution confers on the House sole and exclusive jurisdiction as claimed by Mr Seervai
It is common ground that the powers have to be found in article 1943
That provision is the sole foundation of the powers and no power which is not included in it can be claimed by the House and so at the very threshold of our discussion we must decide this question
In dealing with this question it is necessary to bear in mind one fundamental feature of a federal constitution
In England 445 Parliament is sovereign and in the words of Dicey the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever that no person or body is recognised by the law of England is having a right to override or set aside the legislation of Parliament and that the right or power of Parliament extends to every part of the Queen s dominions1
On the other hand the essen tial characteristic of federalism is the distribution of limited executive legislative and judicial authority among bodies which are co ordinate with and independent of each others
The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union but not prepared to merge their individuality in a unity
This supremacy of the con stitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers
Nor is any change possible in the constitution by the ordinary process of federal or State legislation2
Thus the dominant characteristic of the British Constitution cannot be claimed by a federal constitution like ours
Our Legislatures have undoubtedly plenary powers but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule but beyond the Lists the Legislatures cannot travel
They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers con ferred on them by the relevant provisions of the Constitution but the basis of the power is the Constitution itself
Besides the legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution
If the Legislatures step beyond the legislative fields assigned to them or acting within their respective fields they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights their legislative actions are liable to be struck down by courts in India
Therefore it is necessary to remember that though our Legislatures have plenary powers they function within the limits prescribed by the material and relevant provisions of the Constitution
1 Dicey The Law of the Constitution 10th ed
xxxiv xxxv
2 Ibid p Ixxvii
446 In a democratic country governed by a written Constitution it is the Constitution which is supreme and sovereign
It is no doubt true that the Constitution itself can be amended by the Parliament but that is possible because article 368 of the Constitution itself makes a provision in that behalf and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article
That shows that even when the Parliament purports to amend the Constitution it has to comply with the relevant mandate of the Constitution itself
Legislators Ministers and Judges all take oath of allegiance to the Constitution for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance
Therefore there can be no doubt that the sovereignty which can be claimed by the Parliament in England cannot be claimed by any Legislature in India in the literal absolute sense
There is another aspect of this matter which must also be mentioned whether or not there is distinct and rigid separation of powers under the Indian Constitution there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens
When a statute is challenged on the ground that it has been passed by a Legislature without authority or has otherwise unconstitutionally trespassed on fundamental rights it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not
Just as the legislatures are conferred legislative authority and their functions are normally confined to legislative functions and the functions and authority of the executive lie within the domain of executive authority so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication
If the validity of any law is challenged before the courts it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened can be decided by the legislatures themselves
Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country and so we feel no difficulty in holding that the decision about the construction of article 1943 must ultimately rest exclusively with theJudicature of this country
That is why we must over rule Mr Seervai s argument that the question of determining the nature scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court
This conclusion however would not impair the validity of Mr Seervai s contention that the advisory opinion 447 rendered by us in the present Reference proceedings is not adjudication properly so called and would bind no parties as such
In coming to the conclusion that the content of article 1943 must ultimately be determined by courts and not by the legislatures we are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution
Speaking broadly all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country and that naturally gives the legislative chambers a high place in the making of history today
The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life
In this connection it is necessary to remember that the status dignity and importance of these two respective institutions the Legislatures and the Judicature are derived primarily from the status dignity and importance of the respective causes that are assigned to their charge by the Constitution
These two august bodies as well as the Executive which is another important constituent of a democratic State must function not in antinovel nor in a spirit of hostility but rationally harmoniously and in a spirit of understanding within their respective spheres for such harmonious working of the three constituents of the democratic State alone will help the peaceful development growth and stabilization of the democratic way of life in this country
But when as in the present case a controversy arises between the House and the High Court we must deal with the problem objectively and impersonally
There is no occasion to import heat into the debate or discussion and no justification for the use of strong language
The problem presented to us by the present reference is one of construing the relevant provisions of he Constitution and though its consideration may present some difficult aspects we must attempt to find the answers as best we can
In dealing with a dispute like the present which concerns the jurisdiction the dignity and the independence of two august bodies in a State we must remember that the objectivity of our approach itself may incidentally be on trial
It is therefore in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the questions framed for our advisory opinion
If ultimately we come to the conclusion that the view pressed before us by Mr Setalvad for the High Court Is erroneous we would not hesitate to pronounce  our verdict 448 against that view
On the other hand if we ultimately come to the conclusion that the claim made by Mr Seervai for the House cannot be sustained we would not falter to pronounce our verdict accordingly
In dealing with problems of this importance and significance it is essential that we should proceed to discharge our duty without fear or favour affection or ill will and with the full consciousness that it is our solemn obligation to uphold the Constitution and the laws
It would be recalled that article 1943 consists of two parts
The first part empowers the Legislature to define by law from time to time its powers privileges and immunities whereas the Second part provides that until the legislature chooses so to define its powers privileges and immunities its powers privileges and immunities would be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of the Constitution
Mr Seervai s argument is that the latter part of article 1943 expressly provides that all the powers which vested in the House of Commons at the relevant time vest in the House
This broad claim however cannot be accepted in its entirety because there are some powers which cannot obviously be claimed by the House
Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker to have at all times the right to petition counsel or remonstrate with their Sovereign through their chosen representative and have a favorable construction placed on his words was justly regarded by the Commons as fundamental privilege1
It is hardly necessary to point out that the House cannot claim this privilege
Similarly the privilege to pass acts of attainder and the privilege of impeachment cannot be claimed by the House
The House of Commons also claims the privilege in regard to its own Constitution
This privilege is expressed in three ways first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament secondly by the trial of controverted elections and thirdly by determining the qualifications of its members in cases of doubt1
This privilege again admittedly cannot be claimed by the House
Therefore it would not be correct to say that an powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House
In construing the relevant provision of article 1943 we must deal with the question in the light of the previous decision of this 1 Sir T Erskine May s Parliamentary Practice16th ed p 86
2 lbid p 175
449 Court in Pandit Sharma s1 case
It is therefore necessary to recall what according to the majority decision in that case is the position of the provision contained in article 1943
In that case
the Editor of the English daily newspaper Search Light of Patna had been called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly in that he had published in its entirety the speech delivered in the Assembly by a Member portions of which had been directed to be expunged by the Speaker
The Editor who moved this Court under article 32 contended that the said notice and the action proposed to be taken by the Committee contravened his fundamental right of freedom of speech and expression under article 19 1 a and also trespassed upon the protection of his personal liberty guaranteed under article 21
It is on these two grounds that the validity of the notice was impeached by him
This claim was resisted by the House by relying on article 1943
Two questions arose one was whether the privilege claimed by the House was a subsisting privilege in England at the relevant time and the other was what was the result of the impact of Articles 19 1 a and 21 on the provisions contained in the latter part of Article 1943 The majority decision was that the privilege in question was subsisting at the relevant time and must therefore be deemed to be included under the latter part of article 194 3
It also held that article 19 1 a did not apply because under the rule of harmonious construction in a case like the present where article 19 1 a was in direct conflict with article 1943 the particular provision in the latter article would prevail over the general provision contained in the former it further held that though article 21 applied it had not been contravened
The minority view on the other hand was that the privilege in question had not been established in fact and that alternatively if it be assumed that such privilege was established and was therefore included under the latter part of article 1943 it must be controlled by article 191a on the ground that fundamental rights guaranteed by Part III of the Constitution were of paramount importance and must prevail over a provision like that contained in article 1943 which may be inconsistent with them
At this stage it would be useful to indicate broadly the points decided both by the majority and minority decisions in that case
Before the Court it was urged by the petitioner that though article 1 1959 Supp 1 SCR 806
450 1943 had not been made subject to the provisions of the Constitution it does not necessarily mean that it is not so subject and that the several clauses of article 194 should not be treated as distinct and separate provisions but should be read as a whole and that so read all the clauses should be taken as subject to the provisions of the Constitution which of course would include article 191a
This argument was rejected both by the majority and the minority views
The next argument urged in that case was that article 1941 in reality operates as an abridgement of the fundamental right of freedom of speech conferred by article 191a when exercised in the State Legislatures but article 1943 does not in terms purport to be an exception to article 191a
This argument was also rejected by both the majority and the  minority views
It was pointed out by the majority decision that clause 1 of article 194 no doubt makes a substantive provision of the said clause subject to the provisions of the Constitution but in the context those provisions cannot take in article 19 1 a because this latter article does not purport to regulate the procedure of the legislature and it is only such provisions of the Constitution which regulate the procedure of the legislature which
are included in the first part of article 1941
The third argument urged by the petitioner was that article 19 enunciates a transcendental principle and should prevail over the provisions of article 1943 particularly because these latter provisions were of a transitory character
This contention was rejected by the majority view but was upheld by the minority view
The fourth argument urged was that if a law is made by the legislature prescribing its powers privileges and immunities it would be subject to article 13 of the Constitution and would become void to the extent it contravenes the fundamental rights enshrined in Part III
This contention was accepted by both the majority and the minority decisions
That left one more point to be considered and it had reference to the observations made in an earlier decision of this Court in Gunupati Keshavram Reddy vs Nafisul Hasan and the State of UP 1
The majority decision has commented on this earlier decision and has observed that the said decision was based entirely on a concession and cannot therefore be deemed to be a considered decision of this Court
As we will presently point out 1 AIR 1954 SC 636
451 the said decision dealt with the applicability of article 222 to a case falling under the latter part of article 1943
The minority opinion however treated the said decision as a considered decision which was binding on the Court
We ought to add that the majority decision in terms held that article 21 applied but on the merits it came to the conclusion that its alleged contravention had not been proved
On the minority view it was unnecessary to consider whether article 21 as such applied because the said view treated all the fundamental rights guaranteed by Part III as paramount and therefore each one of them would control the provisions of article 1943
It would thus be seen that in the case of Pandit Sharma1 contentions urged by the petitioner did not raise a general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part HI at all
The contravention of only two articles was pleaded and they were Articles 191a and 21
Strictly speaking it was therefore unnecessary to consider the larger issue as to whether the latter part of article 1943 was subject to the fundamental rights in general and indeed even on the majority view it could not be said that the said view excluded the application of all fundamental rights for the obvious and simple reason that article 21 was held to be applicable and the merits of the petitioner s argument about its alleged contravention in his case were examined and rejected
Therefore we do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 1943 and any of the provisions of the fundamental rights guaranteed by Part III the latter must always yield to the former
The majority decision therefore must be taken to have settled that article 191a would not apply and article 21 would
Having reached this conclusion the majority decision has incidentally commented on the decision in Gunupati Keshavram Reddy s2 case
Apart from the fact that there was no contro versy about the applicability of article 22 in that case we ought to point out with respect that the comment made by the majority judgment on the earlier decision is partly not accurate
In that case a Constitution Bench of this Court was concerned with the detention of Mr Mistry under an order passed by the Speaker of the Uttar Pradesh Legislative Assembly for breach of privilege of the said Assembly
The validity of Mr Mistry s detention was challenged on the ground that it had contravened article 222 of 1 1959 Supp 1 SCR 806
2 AIR 1954 SC 636
452 the Constitution
The facts alleged in support of this plea were admitted to be correct by the Attorney General and on those admitted facts the Court held that Mr Mistry s detention was clearly invalid
Referring to this decision the majority judgment has observed that it proceeded entirely on a concession of counsel and cannot be regarded as a considered opinion on the subject
 There is no doubt that the first part of this comment is not accurate
A concession was made by the Attorney General not on a point of law which was decided by the Court but on a point of fact and so this part of the comment cannot strictly be said to be justified
It is however true that there is no discussion about the merits of the contention raised on behalf of Mr Mistry and to that extent it may have been permissible to the majority judgment to say that it was not a considered opinion of the Court
But as we have already pointed out it was hardly necessary for the majority decision to deal with the point pertaining to the applicability of article 222 because that point did not arise in the proceedings before the Court in Pandit Sharma s1 case
That is why we wish to make it clear that the orbiter observations made in the majority judgment about the validity or correctness of the earlier decision of this Court in Gunther Keshavram Reddy s1 case should not be taken as having decided the point in question
In other words the question as to whether article 222 would apply to such a case may have to be considered by this Court if and when it becomes necessary to do so
Before we part with the decision of this Court in Pandit Sharma s1 case it is necessary to refer to another point
We have already observed that the majority decision has accepted the contention raised by the petitioner in that case that of a law were passed by the Legislature of a State prescribing its powers privileges and immunities as authorised by the first part of article 1943 it would be subject to article 13
Mr Seervai has attempted to challenge the correctness of this conclusion
He contends that the power conferred on the legislatures by the first part of article 1943 is a constitutional power and so if a law is passed in exercise of the said power it will be outside the scope of article 13
We are unable to accept this contention
It is true that the power to make such a law has been conferred on the legislatures by the first part of article 1943 but when the State Legislatures purport to exercise this power they will undoubtedly be acting under article 246 read with Entry 39 of List IT
The enactment of such a law cannot be said to be in exercise of a constituent power and so such a law will have to be treated as a law within the meaning 1 1959 Supp 1 SCR 806
2 AIR 1954 section C 636 453 of article 13
That is the view which the majority decision expressed in the case of Pandit Sharma1 and we are in respectful agreement with that view
Mr Seervai attempted to support his contention by referring to some observations made by Venkatarama Aiyar J in Ananthakrishnan vs State of Madras1
In that case the learned Judge has observed that Art 131 applies in terms only to laws in force before the commencement of the Constitution and to laws to be enacted by the States that is in future
It is only those two classes of laws that are declared void as against the provisions of Part III
It does not apply to the Constitution itself
It does not enact that the other portions of the Constitution should be void as against the provisions in Part III and it would be surprising if it did seeing that all of them are parts of one organic whole
 This principle is obviously unexceptionable
This principle could have been invoked if it had been urged before us that either the first or the second part of article 1943 itself is invalid because it is inconsistent with the relevant provisions in Part III which provides for fundamental rights
That however is not the argument of Mr Setalvad nor was it the argument urged before this Court in the case of Pandit Sharma1
The argument was and is that if in pursuance of the power conferred by the first part of article 1943 a law is made by the legislature it is a law within the meaning of article 13 and this argument proceeds on the words of article 13 2 itself
article 13 2 provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall to the extent of the contravention be void
The law with which we are dealing does not purport to amend the Constitution and would not therefore form part of the Constitution when it is passed like other laws passed by the Legislatures in exercise of the legislative powers conferred on them this law would also be law within the meaning of article 13 and so it is unreasonable to contend that the view taken by this Court in the case of Pandit Sharma that such a law would be subject to the fundamental rights and would fall within the mischief of article 132 requires reconsideration
The position therefore is thatin dealing with the present dispute we ought to proceed on the basis that the latter part of article 1943 is not subject to article 191 a but is subject to article 21
The next question which we ought to consider is  was it the intention of the Constitution to perpetuate the dualism which 1 1959 Supp 1 section C R 806
2 ILR 1952 Mad 933 951
454 rudely disturbed public life in England in the 17th 18th and 19th centuries  The Constitution makers were aware of several unhappy situations which arose as a result of the conflict between the Judicature and the Houses of Parliament and they knew that these situations threatened to create a deadlock in the public life of England
When they enacted article 1943 was it their intention to leave this conflict at large or have they adopted a scheme of constitutional provisions to resolve that conflict  The answer to this question would obviously depend upon a harmonious construction of the relevant provisions of the Constitution itself
Let us first take article 226
This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions orders or writs including writs in the nature of habeas corpus mandamus prohibition quo warranto certiorari or any of them for the enforcement of any of the rights conferred by Part HI and for any other purpose
It is hardly necessary to emphasis that the language used by article 226 in conferring power on the High Courts is very wide
article 12 defines the State as including the Legislature of such State and so prima facie the power conferred on the High Court under article 2261 can in a proper case be exercised even against the Legislature
If an application is made to the High Court for the issue of a writ of habeas corpus it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House
article 2261 read by itself does not seem to permit such a plea to be raised
article 32 which deals with the power of this Court puts the matter on a still higher pedestal the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right and so what we have said about article 2261 is still more true about article 321
Whilst we are considering this aspect of the matter it is relevant to emphasise that the conflict which has arisen between the High Court and the House is strictly speaking not a conflict between the High Court and the House as such but between the House and a citizen of this country
Keshav Singh claims certain fundamental rights which are guaranteed by the Constitution and he seeks to move the High Court under article 226 on the ground that his fundamental rights have been contravened illegally
The High Court purporting to exercise its power under article 2261 455 seeks to examine the merits of the claims made by Keshav Singh and issues an interim order
It is this interim order which has led to the present unfortunate controversy
No doubt by virtue of the resolution passed by the House requiring the Judges to appear before the Bar of the House to explain their conduct the controversy has developed into one between the High Court and the House but it is because the High Court in the discharge of its duties as such Court intervened to enquire into the allegations made by a citizen that the Judges have been compelled to enter the arena
Basically and fundamentally the controversy is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly
That is why in dealing with the question about the extent of the powers of the House in
dealing with cases of contempt committed outside its four walls the provisions of article 226 and article 32 assume significance
We have already pointed out that in Pandit Sharma1 this Court has held that article 21 applies where powers are exercised by the legislature under the latter part of article 1943
If a citizen moves the High Court on the ground that his fundamental right under article 21 has been contravened the High Court would be entitled to examine his claim and that itself would introduce some limitation on the extent of the powers claimed by the House in the present proceedings
There are two other articles to which reference must be made
article 2081 provides that a House of the Legislature of a State may make rules for regulating subject to the provisions of this Constitution its procedure and the conduct of its business
This provision makes it perfectly clear that if the House were to make any rules as prescribed by it those rules would be subject to the fundamental rights guaranteed by Part M
In other words where the House makes rules for exercising its powers under the latter part of article 1943 those rules must be subject to the fundamen tal rights of the citizens
Similarly article 2121 makes a provision which is relevant
It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure
article 2122 confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers
article 2121 1 1959 pp
1 SCR 806
CI165 4 456 seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure but from an illegality
If the impugned procedure is illegal and unconstitutional it would be open to be scrutinised in a court of law though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular
That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by article 1943
That takes us to article 211
This article provides that no discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties
This provision amounts to an absolute constitutional prohibition against any discussion in the Legislature of a State in respect of the judicial conduct of a Judge of this Court or of the High Court
Mr Setalvad who appeared for the Judges has based his argunent substantially on the provisions of this article
He contends that the unqualified and absolute terms in which the constitutional prohibition is couched in article 211 unambiguously indicate that the conduct of a Judge in the discharge of his duties can never become the subjectmatter of any action taken by the House in exercise of its powers or privileges conferred by the latter part of article 1943
If a Judge in the discharge of his duties commits contempt of the House the only step that can be taken against him is prescribed by article 121
article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided
Reading Articles 121 and 211 together two points clearly emerge
The judicial conduct of the Judge cannot be discussed in the State Legislature
It can be discussed in the Parliament only upon a motion for presenting an address to the President praying for the removal of the Judge
The Constitution makers attached so much importance to the independence of the Judicature in this country that they thought it necessary to place them beyond any controversy except in the manner provided by article 121
If the judicial conduct of a Judge cannot be dis cussed in the House it is inconceivable that the same conduct can be legitimately made the subject matter of action by the House 457 in exercise of its powers under article 1943
That in substance is the principal argument which has been urged before us by Mr Setalvad
On the other hand Mr Seervai has argued that the effect of the provisions contained in article 211 should not be exaggerated
He points out that article 211 appears in Chapter HI which deals with the State Legislature and occurs under the topic General Procedure and so the only object which it is intended to serve is the regulation of the procedure inside the chamber of the Legislature
He has also relied on the provisions of article 1942 which expressly prohibit any action against a member of the Legislature for anything said or any vote given by him in the Legislature
In other words if a member of the Legislature contravenes the absolute prohibition prescribed by article 21 1 no action can be taken against him in a court of law and that says Mr Seervai shows that the significance of the prohibition contained in article 211 should not be overrated
Besides as a matter of construction Mr Seervai suggests that the failure to comply with the prohibition contained in article 211 cannot lead to any constitutional consequence and in support of this argument he has relied on a decision of this Court in State of UP vs Manbodhan Lal Srivastava1
In that cases this Court was dealing with the effect of the provisions contained in article 320 of the Constitution
article 320 prescribes the functions of the Public Service Commis sions and by clause 3c it has provided that the Union Public Service Commission or the State Public Service Commission as the case may be shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity including memorials or petitions relating to such matters
It was held that the provisions of this clause were not mandatory and did not confer any right on a public servant so that the absence of consultation or any irregu larity in consultation did not afford him a cause of action in a court of law
Mr Seervai s argument is that the words used in article 211 should be similarly construed and the prohibition on which Mr Setalvad relies should be deemed to be merely directory and not mandatory
We are not impressed by Mr Seervai s arguments
The fact that article 21 1 appears under a topic dealing with Procedure Generally cannot mean that the prohibition prescribed by it is not mandatory
As we have already indicated in trying to appreciate the full significance of this prohibition we must read Articles 211 1  458 and 121 together
It is true that article 1942 in terms provides for immunity of action in any court in respect of a speech made by a member or a vote given by him in the legislative Assembly
But this provision itself emphatically brings out the fact that the Constitution was anxious to protect full freedom of speech and expression inside the legislative chamber and so it took the pre caution of making a specific provision to safeguard this freedom of speech and expression by saying that even the breach of the constitutional prohibition prescribed by article 211 should not give rise to any action
Undoubtedly the Speaker would not permit a member to contravene article 21 1 but if inadvertently or otherwise a speech is made within the legislative chamber which contravences article 21 1 the Constitution makers have given protection to such speech from action in any court
The House itself may and would no doubt take action against him
It is also true that if a question arises as to whether a speech contravenes article 21 1 or not it would be for the Speaker to give his ruling on the point
In dealing with such a question the Speaker may have to consider whether the observations which a member wants to make are in relation to the conduct of a Judge in discharge of his duties and in that sense that is a matter for the Speaker to decide
But the significant fact still remains that the Constitution makers thought it necessary to make a specific provision by article 1942 and that is the limit to which the Constitution has gone in its objective of securing complete freedom of speech and expression within the four walls of the legislative chamber
The latter part of article 1943 makes no such exception and so it would be logical to hold that whereas a speech made in contravention of article 211 is protected from action in a court by article 1942 no such exception or protection is provided in prescribing the powers and privileges of the House under the latter part of article 1943
If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt and the House proceeds to take action against the Judge in that behalf such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of article 1943
In our opinion the omission to make any such provision when contrasted with the actual provision made by article 1942 is riot without significance
In other words this contrast leads to the inference that the Constitution makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative 459 chamber would be to make a provision in article 1942 and that is about all
The conduct of a Judge in relation to the discharge of his duties cannot be the subject matter of action in exercise of the powers and privileges of the House
Therefore the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the House though if it is no remedy lies in a court of law
But such conduct cannot be made the subject matter of any proceedings under the latter part of article 1943
If this were not the true position article 211 would amount to a meaningless declaration and that clearly could not have been the intention of the Constitution
Then as regards the construction of article 21 1 itself Mr Seervai is no doubt in a position to rely upon the decision of this Court in State of UP vs Manbodhan Lal Srivastava1
But it would be noticed that in coming to the conclusion that the provision contained in article 3203c was not mandatory this Court has referred to certain other facts which determined the said construction
Even so this Court has accepted the principle laid down by the Privy Council in Montreal Street Railway Company vs Normandin1 wherein the Privy Council observed that the question whether provisions in a statute are directory or imperative has very frequently arisen in this country but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at
 question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed
The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by consider in its nature its design and the consequences which would follow from construing it the one way or the other
1 These principles would clearly negative the construction for which Mr Seervai contends
It is hardly necessary to refer to other provisions of the Constitution which are intended to safeguard the independence of the Judicature in this country
The existence of a fearless and independent judiciary can be said to be the very basic foundation of the constitutional structure in India and so it would be idle we think to contend that the absolute prohibition prescribed by article 21 1 should be read as merely directory and should be allowed to be reduced to a meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his 1  2  3 People vs De Renna 2 NYS 2 694166 Misc
582 cited in Crawford Statutory Construction p 516 460 duties
Therefore we are satisfied that Mr Setalvad is right when he contends that whatever may be the extent of the powers and privileges conferred on the House by the latter part of article 1943 the power to take action against a Judge for contempt alleged to have been committed by him by his act in the discharge of his duties cannot be included in them
Thus Mr Setalvad s case is that so far as the Judges are concerned the position is quite clear that as a result of the impact of the provisions contained in Articles 226 and 211 judicial conduct can never become the subject matter of contempt proceedings under the latter part of article 1943 even if it is assumed that such conduct can become the subjectmatter of contempt proceedings under the powers and privileges possessed by the House of Commons in England
On the other hand Mr Seervai disputes Mr Setalvad s contention as to the impact of articles 226 and 211 on the latter part of article 1943 and further urges that even if Mr Setalvad be right in respect of that contention he would not be entitled to dispute the validity of the power and privilege claimed by the House of Commons which can therefore be claimed by the House in the present proceedings that no court can go behind a general or unspeaking warrant
In order to determine the validity of these rival contentions it is now necessary to consider very briefly what was the position of this particular power and privilege at the commencement of the Constitution
In dealing with this question we will also very broadly refer to the wider aspect of the powers privileges and immunities which vest in both the Houses of Parliament in England
While considering the question of the powers privileges and immunities of the English Parliament it would we think be quite safe to base ourselves on the relevant statements which have been made in May s Parliamentary Practice
This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice and so we think it would be an exercise in futility to attempt to deal with this question otherwise than by reference to May Parliamentary privilege according to May is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by members of each House individually without which they could not discharge their functions and which exceed those possessed by other bodies or individuals
Thus privilege though part of the law of the land is to a certain extent an exemption from the ordinary law
The particular privileges of the House of Commons have been defined as the sum of the fundamental 461 rights of the House and of its individual Members as against the prerogatives of the Crown the authority of the ordinary courts of law and the special rights of the House of Lords
There is a distinction between privilege and function though it is not always apparent
On the whole however it is more convenient to reserve the term privilege to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions
The distinctive mark of a privilege is its ancillary character
The privileges of Parliament are rights which are absolutely necessary for the due execution of its powers
They are enjoyed by individual Members because the House cannot perform its functions without unimpeded use of the services of its Members and by each House for the protection of its Members and the vindication of its own authority and dignity1
May points out that except in one respect the surviving privileges of the House of Lords and the House of Commons are justifiable on the same ground of necessity as the privileges enjoyed by legislative assemblies of the self governing Dominions and certain British colonies under the common law as a legal incident of their legislative authority
This exception is the power to punish for contempt
Since the decision of the Privy Council in Kielley vs Carson1 it has been held that this power is inherent in the House of Lords and the House of Commons not as a body with legislative functions but as a descendant of the High Court of Parliament and by virtue of the lex et consuetudo parliamenti1
Historically as originally the weaker body the Commons had a fiercer and more prolonged struggle for the assertion of their own privileges not only against the Crown and the courts but also against the Lords
Thus the concept of privilege which originated in the special protection against the King began to be claimed by the Commons as customary rights and some of these claims in the course of repeated efforts to assert them hardened into legally recognised privileges
In regard to the fierce struggle by the House of Commons to assert its privileges in a militant way May has made the significant comment that these claims to privilege were established in the late fifteenth and in the sixteenth centuries and were used by the House of Commons against the King in the seventeenth and arbitrarily against the people in the eighteenth century
Not until the nineteenth century was equilibrium reached and the limits of privilege prescribed and accepted by Parliament the Crown and the Courts3
The two Houses are thus of equal authority in the 1 May s Parliamentary Practice pp
42 43
2  3 May s Parliamentary Practice p 44 462 administration of a common body of privileges
Each House as a constituent part of Parliament exercised its own privileges independently of the other
They are enjoyed however not by any separate right peculiar to each but solely by virtue of the law and custom of Parliament
Generally speaking all privileges properly so called appertain equally to both Houses
They are declared and expounded by each House
and breaches of privilege are adjudged and censured by each but essentially it is still the law of Parliament that is thus administered
It is significant that although either House may expound the law of Parliament and vindicate its own privileges it is agreed that no new privilege can be created
This position emerged as a result of the historic resolution passed by the House of Lords in 1704
This resolution declared that neither House of Parliament have power by any vote or declaration to create to themselves new privileges not warranted by the known laws and customs of Parliament  This resolution was communicated by the House of Lords to Commons and assented to by them1
Thus there can be no doubt that by its resolutions the House of Commons cannot add to the list of its privileges and powers
It would be relevant at this stage to mention broadly the main privileges which are claimed by the House of Commons
Freedom of speech is a privilege essential to every free council or legislature and that is claimed by both the Houses as a basic privilege
This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament
It is remarkable that notwithstanding the repeated recognition of this privilege the Crown and the Commons were not always agreed upon its limits
This privilege received final statutory recognition after the Revolution of 1688
By the 9th Article of the Bill of Rights it was declared that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament2
Amongst the other privileges are  the right to exclude strangers the right to control publication of debates and proceedings the right to exclusive cognizance of proceedings in Parliament the right of each House to be the sole judge of the lawfulness of its own proceedings and the right implied to punish its own Members for their conduct in Parliament1
Besides these privileges both Houses of Parliament were possessed of the privilege of freedom from arrest or molestation 1 May s Parliamentary Practice p 47
2 Ibid p 52
3 Ibid pp 52 53
463 and from being impleaded which was claimed by the Commons on ground of prescription
Although this privilege was given royal and statutory recognition at an early date ironically enough the enforcement of the privilege was dependent on the Lords and King who were not always willing to protect the Commons
In this connection May refers to the case of Thorpe who was the Speaker of the House of Commons and was imprisoned in 1452 under execution from the Court of Exchequer at the suit of the Duke of York
It is an eloquent testimony to the dominance of the House of Lords and the weakness of the House of Commons which was struggling to assert its freedom and its rights that when the House of Lords in response to the application of the Commons adjudged that Thorpe should remain in prison the Commons so easily acquiesced in this decision that they immediately proceeded to the election of another Speaker1
May points out that certain privileges have in course of time been discontinued
Amongst them may be mentioned the freedom from being impleaded
Similarly by the Parliamentary Privilege Act 1770 a very important limitation of the freedom from arrest was affected
A somewhat similar position arises in respect of the privilege of exemption from jury service 2
In fact
the list of privileges claimed by the House of Commons in early days was a long and formidable list and it showed how the House of Commons was then inclined to claim all kinds of privileges for itself and its members
In course of time however many of these privileges fell into disuse and faded out of existence some were controlled by legislation while the major privileges which can be properly described as privileges essential for the efficient functioning of the House still continued in force
In considering the nature of these privileges generally and particularly the nature of the privilege claimed by the House to punish for contempt it is necessary to remember the historical origin of this doctrine of privileges
In this connection May has emphasised that the original of the modern Parliament consisted in its judicial functions
One of the principal lines of recent research says May has revealed the importance of the judicial elements in the origins of Parliament
Maitland in his introduction to the Parliament Roll of 1305 was the first to emphasise the importance of the fact that Parliament at that time was the King s  great court and was thereby among other things the highest court of royal justice
There is now general agreement in recognising the strongly judicial streak in the character of the earliest 1 May s Parliamentary Practice p 70
2 Ibid
pp 75 77
464 Parliaments and the fact that even under Edward 111 although Parliaments devoted a considerable part of their time to political and economic business the dispensation of justice remained one of their chief functions in the eyes of the King s subjects1
As is well known the Parliament of the United Kingdom is composed of the Sovereign the House of Lords and the House of Commons
These several powers collectively form the Legislature and as distinct members of the constitution they exercise functions and enjoy privileges peculiar to each
The House of Lords Spiritual and Temporal sit together and jointly constitute the House of Lords2
The exact date of the admission of the Commons to a distinct place in the legislature has always been a subject of controversy but as it is admitted that they often sat apart for deliberation particular instances in which they met in different places will not determine whether their sepa ration at those times was temporary or permanent
When the Commons deliberated apart they sat in the chapter house or the refectory of the abbot of Westminster and they continued their sittings in that place after their final separation3
The House of Lords always was and continues to be today a Court of Judicature
According to May the most distinguishing characteristic of the Lords is their judicature of which they exercise several kinds
They have the power to sit as a court during prorogation and dis solution a Court of Appeal is constituted by the House of Lords and final appellate jurisdiction vests in them4
May has also referred to the power claimed by the Parliament in respect of acts of attainder and impeachments and he has described how this privilege was exercised by the House of Lords and the House of Commons1
In impeachments says May the Commons are but accusers and advocates while the Lords alone are judges of the crime
On the other hand in passing bills of attainder the Commons commit themselves by no accusation nor are their powers directed against the offender but they are judges of equal jurisdiction and with the same responsibility as the Lords and the accused can only be condemned by the united judgment of the Crown the Lords and the Commons6
 This aspect of the privilege is one of the typical features of the historical development of the constitutional law in England
It would thus be seen that a part of the jurisdiction claimed by the House of Lords as well as the House of Commons can be distinctly traced to the historical origin of the modem Parliament which as we have just indicated consisted in the judicial functions of Parliament
1 May s Parliamentary Practice pp
3 42 Ibid pp8 9
3 lbid
 p12
4 Ibid pp
38 39
5 Ibid p 40
6 Ibid p 41
465 The differences in punishments inflicted by Lords and Commons is also of some significance in this context
While both Houses agree in regarding the same offences as breaches of privilege says May in several important particulars there is a difference in their modes of punishment
The Lords have claimed to be a court of record and as such not only to imprison but to impose fines
They also imprison for a fixed time and order security to be given for good conduct and their customary form of commitment is by attachment
The Commons on the other hand commit for no specified period and during the last two centuries have not imposed fines
There can be no question that the House of Lords in its judicial capacity is a court of record but according to Lord Kenyon when exercising a legislative capacity it is not a court of record 
Whether the House of Commons be in law a court of record it would be difficult to determine for this claiming once firmly maintained has latterly been virtually abandoned although never distinctly renounced1
This last comment made by May would be of decisive significance when we later have occasion to deal with the question as to whether the privilege claimed by Mr Seervai that a general warrant cannot be examined by courts is a part of the privilege itself or is the result of convention established between the courts and the House of Commons
Let us then briefly indicate in the words of May the general features of the power of commitment possessed by the House of Commons
The power of commitment says May is truly described as the keystone of parliamentary privilege
As was said in the Commons in 1593 This court for its dignity and highness hath privilege as all other courts have
And as it is above all other courts so it hath privilege above all other courts and as it hath privilege and jurisdiction too so hath it also Coercion and Compulsion otherwise the jurisdiction is nothing in a court if it hath no Coercion 2
The comment made by May on this power of commitment is very instructive
The origin of this power which is judicial in its nature is to be found naturally in the medieval conception of Parliament as primarily a court of justice the High Court of Parliament
As a court functioning judicially the House of Lords undoubtedly possessed the power of commitment by at least as good a title as any court of Westminster Hall
But the Commons new comers to Parliament within the time of judicial memory could not claim the power on grounds 1 May s Parliamentary Practice p 90
2 Ibid p 90
466 of immemorial antiquity
As late as 1399 they had record their protest that they were not sharers in the judgments of Parliament but only petitioners
The possession of the right by the Commons was challenged on this ground and was defended by arguments which confounded legislative with judicial jurisdiction
It was probably owing to the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice that the Commons succeeded in asserting their right to commit offenders on the same terms as the Lords1
That is the genesis of the privilege claimed by the House of Commons in the matter of commitment
As the history of England shows the House of Commons had to engage in a fierce struggle in order to arrest recognition for this right from the King the House of Lords and in many cases the people themselves
This power was distinctly admitted by the Lords at the conference between the two Houses in the case of Ashby vs White2 in 1704 and it has been repeatedly recognized by courts of law
In fact this power is also virtually admitted by the statute I James 1 c 13 section 3 which provides that nothing therein shall extend to the diminishing of any punishment to be hereafter by censure in Parliament inflicted upon any person3
 Now we will refer to the statement of the law in May s book on the vexed question about the jurisdiction of courts of law in matters of privilege
May says it would require a separate treatise to deal adequately with a subject which raises incidentally such important questions of constitutional law
According to him in cases affecting parliamentary privilege the tracing of a boundary between the competence of the courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases particularly from the seventeenth to the nineteenth centuries
It has been common ground between the Houses and the courts that privilege depends on the known laws and customs of Parliament and not on the ipse dixit of either House
The question in dispute was whether the law of Parliament was a particular law or part of the common law in its wide and extended sense and in the former case whether it was a superior law which overrode the common law
Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely 1 May s Parliamentary Practice p 91
2 LJ 1701 05714
3 May s Parliamentary Practice p 92
467 by the House which it concerned even when the rights of third parties were involved or whether it might in certain cases be decided in the courts and if so in what sort of cases 1
The points of view adopted by the Parliament and the courts appeared to be irreconcilable
The courts claimed the right to decide or themselves when it became necessary to do so in proceedings brought before them questions in relation to the existence or extent of these privileges whereas both the Houses claimed to be exclusive judges of their own privileges
Ultimately the two points of view were reconciled in practice and a solution acceptable to both he parties was gradually evolved
This solution which is marked but by the courts is to insist on their right in principle to decide ill questions of privilege arising in litigation before them with certain large exceptions in favour of parliamentary jurisdiction
Two of these are the exclusive jurisdiction of each House over its own internal proceedings and the right of either House to commit and punish for contempt
May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the courts the absence of any conflict for over a century may indicate a certain measure of tacit acceptance2
In other words the question about the existence and extent of privilege is generally treated as justiciable in courts where it becomes relevant for adjudication of any dispute brought before the courts
In regard to punishment for contempt a similar process of give and take by convention has been in operation and gradually a large area of agreement has in practice been evolved
Theoretically the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves
It has never expressly abandoned this claim
On the other hand the courts regard the privileges of Parliament as part of the law of the land of which they are bound to take judicial notice They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction and to decide it according to their own interpretation of the law3
Naturally as a result of this dualism the decisions of the courts are not accepted as binding by the House In matters of privilege nor the decision of the House by the courts and as May points out on the theoretical plane the old dualism remains unresolved
In practice however there is 1 May s Parliamentary Practice p 150
2 Ibid p 152
3 Ibid p 172
468 much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect and May describes these general conclusions in the following words  1 It seems to be recognized that for the purpose of adjudicating on questions of privilege neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament
The supremacy of Parliament consisting of the King and the two Houses is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly
2 It is admitted by both Houses that since neither House can by itself add to the law neither House can by its own declaration create a new privilege
This implies that privilege is objective and its extent 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 finding pragmatic ad hoc solutions to problems which appear to be irreconcilable by adopting the conventional method of give and take
The result of this process has been in the words of May that the House of Commons has not for a hundred years refused to submit its privileges to the decision of the courts and so it may be said to have given practical recognition to the jurisdiction of the courts over the existence and extent of its privileges
On the other hand the courts have always at any rate in the last resort refused to interfere in the application by the House of any of its recognized privileges1
That broadly stated is the position of powers and privileges claimed by the House of Commons
1 May s Parliamentary Practice p 173
2 Ibid pp
173 74
469 What now remains to consider is the position in regard to the special privilege with which we are concerned viz the privilege to determine whether its contempt has been committed and to punish for such contempt and to claim that a general order or warrant sentencing a person for its contempt is not examinable in a court of law
Is this last right claimed by Mr Seervai on behalf of the House a part of the privilege vesting in the House of Commons or is it the result of an agreement evolved between the courts and the House by convention or by the doctrine of comity or as a matter of legal presumption  It is to this question that we must now turn
Even while dealing with this narrow question it is necessary we think to refer broadly to the somewhat tortuous course through which the law on this question has been gradually evolved by judicial decisions in England
Just as in dealing with the question of privileges on principle we have mainly based ourselves on the statements of May so in dealing with the evolution of the law on this question we will mainly rely on the decisions themselves
Both Mr Seervai and Mr Setalvad have referred us to a large number of English decisions while urging their respective contentions before us and in fairness we think we ought to mention some of the important representative decisions to indicate how this doctrine of privilege and its accompaniments has been gradualy developed in England
For our purpose the story can be said to begin in the year 1677 when the Court of King s Bench had occasion to deal with a part of this problem in The Earl of Shaftesbury s case1 it develops from time to time when some aspect or the other of this problem of parliamentary privileges came before the courts at Westminster until we reach 1884 when the case of Bradlaugh vs Gossett1 was decided
Let us then begin with Shaftesbury s case
In that case the Earl of Shaftesbury was committed to the Tower of London under an order of the House of Lords which directed the constable of the Tower of London to receive him and keep him in safe custody during the pleasure of the House for high contempts committed against this House and this shall be a sufficient warrant on that behalf
 The Earl of Shaftesbury took the matter before the Court of Kings  Bench on a writ of habeas corpus and urged that the committal of the Earl was unjustified in law because the general allegation of high contempts was 1 2 LR 12 QBD 721
470 too uncertain for the Court to sustain
It was also argued or his behalf that in respect of the jurisdiction exercised by the Lords the boundaries of the said jurisdiction were limited by common law and its exercise was examinable in the courts
This plea was unanimously rejected by the Court which held that the Court could not question the judgment of the House of Lords as a superior court
Rainford CJ held that this Court hath no jurisdiction of the cause and therefore the form of the return is not considerable
According to the learned Chief Justice the impugned commitment was in execution of the judgment given by the Lords for the contempt and therefore if the Earl be bailed he would be delivered out of execution because for a contempt in facie curiae there is no other judgment for execution
This case therefore accepted the principle that the House of Lords had jurisdiction to issue a warrant for contempt and that since the commitment of the person thus committed was in execution of the judgment given by the House of Lords the general warrant issued in that behalf was not examinable by the King s Bench Division
Five years thereafter Jay moved the King s Bench Division for release from arrest and brought an action against Topham the serjeant at Arms for arresting and detaining him
Topham pleaded to the jurisdiction of the court but the court rejected his plea and judgment was given in favour of Jay
Seven years thereafter the House of Commons declared that the said judgment was illegal a violation of the privileges of Parliament and pernicious to the rights of Parliament
Acting on this view the two Judges were called at the Bar of the House and asked to explain their conduct
Appearing before the Bar Sir Francis Pemberton mentioned to the House that he had been out of the Court for more than six years and did not exactly remember what had happened in the case
He expressed surprise that he was called to the Bar without giving him enough notice as to what was the charge against him
He also urged that if the defendant should plead he did arrest him by the command of this House and should plead that to the jurisdiction of the Court of King s Bench he would satisfy the House that such a plea ought to be overruled
That is why he asked for time to look into the records of the court to make his further pleas
Eventually the two Judges were ordered to be imprisoned1
This incident has been severely criticised by all prominent writers on constitutional law in England and it would be fairly accurate to state 1 471 that it has been regarded as an unfortunate and regrettable episode in the history of the House of Commons
It is somewhat ironical that what happened as long ago as 1689 is attempted to be done by the House in the present proceedings 14 years after this country has been used to a democratic way of life under a written Constitution Before we part with this case however it would be material to indicate briefly how succeeding Judges have looked at this conduct of the House of Commons
In Sir Francis Burdett vs Abbot1 Lord Ellenborough CJ observed  It is surprising upon looking at the record in that case how a Judge should have been questioned and committed to prison by the House of Commons for having given a judgment which no Judge whoever sat in this place could differ from and he added that the AttorneyGeneral who had appeared in Burdett had conceded that probably the matter was not so well understood at that time whereupon Lord Ellenborough observed that it was after the Revolution which makes such a commitment for such a cause a little alarming and he pointed out that it must be recollected that Lord CJ Pemberton stood under the disadvantage at that period of having been one of the Judges who had sat on the trial of Lord Russel and therefore did not stand high in popularity after the Revolution when the judgment and attainder in his case had been recently reversed by Parliament
Similarly in Stockdale vs Hansard2 referring to this incident Lord Denman CJ declared  Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those acts of arbitrary power for which they deprived King James of his Crown
The next case to which reference may be made is Ashby vs White
In that case the plaintiff was a burgess of Aylesbuy and as such entitled to vote for two Members of Parliament
On the day of the election he requested the defendants who were the Returning Officers of the borough to receive his vote
This the defendants refused to do and the plaintiff was not allowed to vote
That led to an action against the Returning Officers for fraudulently and maliciously refusing his vote and it ended in an award for damages by the jury
In an action before the Queen s Bench in arrest of judgment it was urged that 1   541
3  2 12 1163
472 the claim made by the plaintiff was not maintainable
This action succeeded according to the majority decision Holt CJ dissenting
Justice Gould held that he was of opinion that the action brought against the defendants was not maintainable and in support of his conclusion he gave four reasons first because the defendants are judges of the and act herein as judges secondly because it is a Parliamentary matter with which we have nothing to do thirdly the plaintiff s privilege of voting is not a matter of property or profit so that the hindrance of it is merely damnum sine injuria and fourthly it relates to the pub lick and is a popular offence1
Holt CJ however dissented from the majority opinion and expressed his views in somewhat strong language
Referring to the opinion expressed by his colleagues that the Court cannot judge of the matter because it was a Parliamentary thing he exclaimed  O by all means be very tender of that
Besides it is intricate and there may be contrariety of opinions
But this matter can never come in question in Parliament for it is agreed that the persons for whom the plaintiff voted were elected so that the action is brought for being deprived of his vote
1 He conceded that the court ought not to encroach or enlarge its jurisdiction but he thought that the court must determine on a charter granted by the King or on a matter of custom or prescription when it comes before the court without encroaching on the Parliament
His conclusion was that if it be a matter with the jurisdiction of the Court we are bound by our oaths to judge of it3  
This decision however has nothing to do with the question of contempt
The next case which deals with the question of contempt of the House of Commons is R vs Paty4
In that case Paty and four others were committed to Newgate by warrant issued by the Speaker of the House
The warrant was a speaking warrant and showed that the persons detained had committed contempt of the jurisdiction of the House and open breach of its known privileges
The validity of this warrant was challenged by the said persons on the ground that it suffered from many infirmities
The majority decision in the case however was that the warrant was not reversible for the alleged infirmities and that the court had no jurisdiction to deal with the matter because the House of Commons were the proper judges of their own privileges
Justice Powys referred to the earlier decision in The 1   129
3 Ibid 138
2 Ibid 137
4  473 Earl of Shaftesbury s case1 and observed all commitments for contempts even those by this Court should come to be scanned they would not hold water
Our warrants here in such cases are short as for a contempt or for a contempt in such a cause
So in Chancery the commitments for contempts are for a contempt in not fully answering etc and would not this commitment be sufficient  He held that the House of Commons is a great Court and all things done by them are to be intended to have been rite acta and the matter need not be so specially recited in their warrants by the same reason as we commit people by a rule of Court of two lines and such commitments are held good because it is to be intended that we understand what we do
1 It would thus be seen that the majority decision in that case proceeded on the basis that the House of Commons was a great Court and like the superior courts at Westminster it was entitled to issue a short general warrant for committing persons for its contempt
If such a general warrant was issued and it was challenged before the courts at Westmins ter it should be treated with the same respect as is accorded to similar warrants issued by the superior courts
Holt CJ however was not persuaded to take the view that the impugned imprisonment was such as the freeman of England ought to be bound by and he added for that this which was only doing a legal act could not be made illegal by the vote of the House of Commons for that neither House of Parliament nor both Houses jointly could dispose of the liberty or property of the subject for to this purpose the Queen must join  and that it was in the necessity of their several concurrences to such acts that the great security of the liberty of the subject consisted  p 236
This case therefore seems to recognise that it would be inappropriate for the courts at Westminster to examine the validity of a general warrant issued by the House of Commons
That takes us to the decision in Murray s case3 
Murray was committed to prison by the House of Commons for refusal to kneel when brought up to the bar of the House
It was declared by the House that the refusal of Murray to kneel was a most dangerous contempt of privilege
When a petition for habeas corpus was moved before the Court it was rejected on the ground that the House of Commons was undoubtedly a High Court and that it was agreed on all hands that they have power to judge of their own privileges and it need not appear 1 3  2   234
474 to us what the contempt was for if it did appear we could not judge thereof
 That is the view expressed by Justice Wright
The learned Judge also added that the House of Commons was superior to his own Court and that his Court could not admit to bail a person committed for a contempt in any other Court in Westminster Hall
Dennison J agreed and expressed his opinion that the Court at Westminster Hall was inferior to the House of Commons with respect to judging of their privileges and contempts against them
This case again proceeds on the basis that the House of Commons is a superior court and as such its warrants cannot be examined
The next relevant case in point of time is Brass Crosby1
Brass Crosby was Lord Mayor of London and a Member of the House of Commons and as Magistrate he had admitted to bail a person who had been committed to prison under a warrant issued by the Speaker of the House under the orders of the House itself
The House held that Lord Mayor was guilty of breach of privilege of the House and as such he was committed to the Tower of London
The validity of this order was challenged by Brass Crosby
The challenge however failed on the ground that when the House of Commons adjudges anything to be a contempt or a breach of privilege their adjudication is a conviction and their commitment in consequence is in execution
As Lord CJ de Grey observed no court can discharge or bail a person that is in execution by the judgment of any other court and so he came to the conclusion that the House of Commons having authority to commit and that commitment being an execution the question is what can this Court do  He gave the answer with the remark that it can do nothing when a person is in execution by the judgment of a court having a competent jurisdiction in such case this Court is not a court of appeal
2 Concurring with this view Blackstone J observed that the House of Commons is a Supreme Court and he was impressed by the argument that it would occasion the utmost confusion if every Court of this Hall should have power to examine the commitments of the other Courts of the Hall for contempts so that the judgment and commitment of each respective Court as to contempts must be final and without control
1 It would thus be seen that this decision proceeded on the same ground which had by then been recognised that the House of Commons was a superior court and as such had jurisdiction to punish persons adjudged 1  3 Ibld 1014
2 Ibid 1011
475 by it to be guilty of contempt
A general warrant issued by the House in respect of such a contempt was treated as of the same status as a similar warrant issued by other superior courts at Westminster Hall
Before parting with this case we may incidentally advert to the comment made by Lord Denman CJ on this decision
Said Lord Denman  We know now as a matter of history that the House of Commons was at that time engaged in unison with the Crown in assailing the just rights of the people
Yet that learned Judge Blackstone J proclaimed his unqualified resolution to uphold the House of Commons even though it should have abused its power1
 The next important decision on this topic is Sir Francis Burdett s case1
This case arose out of an action of trespass which Sir Francis Burdett commenced against the Speaker of the House of Commons for breaking and entering his house and imprisoning him in the Tower
The plea raised in defence was that the conduct of the defendant was justified by an order of the House for Burdett s committal after the House had adjudicated that he had been guilty of a contempt of the House by publishing a libellous and scandalous paper reflecting on the just rights and privileges of the House
The case was elaborately argued and as May points out  This case provides one of the principal authorities for the Commons  power as Lord Shaftesbury s case does for the Lords  to commit for contempt 
 The warrant in this case was a speaking warrant and the contempt was the contempt of the House of Commons
The plea made by Burdett was rejected but the reasons given for rejecting the plea are significant
Lord Ellenborough CJ has considered the question exhaustively
He has observed that upon the authority of precedents in Parliament upon the recognition by statute and upon the continued recognition of all Judges he should have thought that there was a quantity of authority enough to have put the question to rest that is whether the House of Commons has the power of commitment for a contempt of their privileges  The House undoubtedly had that power
Proceeding to deal with the matter on that basis Lord Ellenborough held that the House was competent to decide both as to the fact and the effect of the publication which was held by it to be libellous and he added that by analogy to the judgment of a Court of law and the judgments of either House of Parliament cannot with propriety 1 Stockdale vs Hansard 112 ER 11121158
2  3 May s Parliamentary Practice p 159
476 be put upon a footing less authoritative than those of the ordinary Courts of Law the House must be considered as having decided both as far as respects any question thereupon which may arise in other Courts
The next question which Lord Ellenborough considered was if the warrant itself disclosed a sufficient ground for commit ment and an order to the officers of the House to execute it then the justification for the persons acting under it is made out  unless any justifiable means appear to have been afterwards used to carry the warrant into execution
 It appears that in that case it was urged before the Court that if the warrant issued appeared to be on the face of it unjustified illegal or extravagant the Court would be entitled to entertain the petition for a writ of habeas corpus and grant relief to the petitioner Lord Ellenborough dealt with this argument and expressed the opinion that if a commitment appeared to be for a contempt of the House of Commons generally he would neither in the case of that Court nor of any other of the Superior Courts inquire further but if it did not profess to commit for a contempt but for some matter appearing on the return which could by no reasonable intendment be considered as a contempt of the Court committing but a ground of commitment palpably and evidently arbitrary unjust and contrary to every principle of positive law or national justice in such a case the Court must look at it and act upon it as justice may require from whatever Court it may profess to have proceeded pp
558 60
It is thus clear that even while recognising that it would be inappropriate or improper to examine a general warrant issued by the House of Commons Lord Ellenborough made it clear that this convention would be subject to the exception that wherever it appeared from the return or otherwise that the commitment was palpably unjust the court would not be powerless to give relief to the party
This case went in appeal before the Court of Exchequer and the decision under appeal was confirmed
It appears that before the appellate decision was pronounced Lord Eldon proposed to their Lordships that the counsel for the defendants should not be heard until they received the advice of the Judges on the question which he formulated
This question was  Whether if the Court of Common Pleas having adjudged an act to be a contempt of Court had committed for the contempt under a warrant stating such adjudication generally without the particular circumstances and the matter were brought before the Court of King s 477 Bench by return to a writ of habeas corpus the return setting forth the warrant stating such adjudication of contempt generally whether in that case the Court of King s Bench would discharge the prisoner because the particular facts and circumstances out of which the contempt arose were not set forth in the warrant After this question was handed to the Judges and they consulted among themselves for a few minutes Lord Ch
Baron Richards delivered their unanimous opinion that in such a case the Court of King s Bench would not liberate  This opinion was accepted and Burdett s appeal was dismissed without calling on the respondent
In this case Lord Erskine observed that the House of Commons whether a Court or not must like every other tribunal have the power to protect itself from obstruction and insult and to maintain its dignity and character
If the dignity of the law is not sustained its sun is set never to be lighted up again
So much I thought it necessary to say feeling strongly for the dignity of the law and have only to add that I fully concur in the opinion delivered by the Judges
 This case seems to establish the position that a warrant issued by the House of Commons was treated as a warrant issued by a superior Court and as such the courts in Westminster Hall could not go behind it
In 1836 37 began a series of cases in which John Joseph Stockdale was concerned
This series of cases ultimately led to the arrest and imprisonment of the Sheriffs of Middlesex
It appears that in one of the reports published by the inspectors of prisons under the order of the House of Commons Stockdale was described in a libellous manner and so he brought an action against Messrs Hansard in 1836
In defence Hansard pleaded privilege and urged that the reports in question had been published under the orders of the House
The Court held that the order of the House supplied no defence to the action
Even so the verdict of the jury went against Stockdale on a plea of justification on the merits the jury having apparently held that the alleged libellous description of Stockdale was accurate
At the time when this case was tried Lord Chief Justice Denman made certain observations which were adverse to the privileges of the House claimed by Hansard
He observed that the fact of the House of Commons having directed Messrs Hansard to publish all their parliamentary reports is no justification for them or for any book seller who publishes a parliamentary report containing a libel against any man2
 Incidentally it may be added that as a 1  1301
2 May s Parliamentary Practice p 159
478 result of this controversy the Parliament ultimately passed the Parliamentary Papers Act 1840 which overruled this view
Not deterred by the adverse verdict of the jury on the merits Stockdale began another action
Before this action was commenced the House of Commons had passed a resolution in 1837 reaffirming its privileges and expressing its deliberate view that for any court to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament
Nevertheless in this second action brought by Stockdale the House decided to put in a defence of privilege
This defence was rejected and a decree was passed for payment of damages and costs
Even so the House of Commons did not act upon its resolutions and refrained from punishing Stockdale and his legal advisers for having taken the matter to a court of law instead it decided that the damages and costs be paid under the special circumstances of the case
Encouraged by this result Stockdale brought a third action for another publication of the said report
This time Messrs Hansard did not plead in consequence the judgment went against them in default and the damages were assessed by a jury in the Sheriff s Court at pound 600
The Sheriffs of Middlesex levied for that amount but were served with the copies of the resolutions passed by the House and that naturally made them cautious in the matter
They therefore delayed the payment of the money to Stockdale as long as possible but ultimately the money was paid by them to Stockdale under an attachment
At this stage the House of Commons entered the arena and committed Stockdale to the custody of the Serjeant
It called upon the Sheriffs to refund the money and on their refusal they were also committed for contempt
That led to proceedings taken by the Sheriffs for their release on a writ of habeas corpus
These proceedings however failed and that is the effect of the decision in the Case of the Sheriff of Middlesex1
Naturally Mr Seervai has laid considerable emphasis on this decision
He has pointedly drawn our attention to the fact that the Court found itself powerless to protect the Sheriffs of Middlesex against their imprisonment though the conduct which gave rise to contempt of the House was in terms the result of an order passed by the Court
Lord Denman CJ who had himself elaborately discussed the question and disputed the validity of the claim made by the House of Commons in regard to its privi 1  479 leges in the case of Stockdale vs Hansard1 was a party to this decision
He began his judgment by declaring that his earlier judgment delivered in the case of Stockdale vs Hansard1 was correct in all respects
Even so the plea raised by the Sheriffs had to be answered against them because their commitment was sustained by a legal warrant
Lord Denman then examined the three grounds on which the validity of the warrant was impeached and he found that there was no substance in those pleas
The learned Chief Justice considered the previous decisions bearing on the point and observed that the test prescribed by Lord Eldon in the case of Burdett vs Abbot 2 was relevant and this test as we have already seen proceeds on the assumption that like the general warrants for commitment issued by the superior courts the general warrants issued by the House of Commons on the ground of contempt should not be examined in proceedings for habeas corpus
Littledale J concurring with Lord Denman CJ said  if the warant declares the grounds of adjudication this Court in many cases will examine into their validity but if it does not we cannot go into such an inquiry
Here we must suppose that the House adjudicated with sufficient reason and they were the proper judges
Justice Williams who also concurred with Lord Denman thought it necessary to add  that if the return in a case like this shewed a frivolous cause of commitment as for wearing a particular dress I should agree in the opinion expressed by Lord Ellenborough in Burdett vs Abbot1 where he distinguishes between a commitment stating a contempt generally and one appearing by the return to be made on grounds palpably unjust and absurd
Coleridge J preferred  to put his conclusion on the ground that the right of the House of Commons to adjudicate in this general form in cases of contempt is not founded on privilege but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment
 It is remarkable that Justice Coleridge thought it necessary to make it clear that the right to require a general warrant to be respected  when its validity is challenged in habeas corpus proceedings is now a part of the privilege itself it is the result of a convention by which such warrants issued by superior courts of record are usually respected
This decision was pronounced in 1840 and  can be said to constitute a landmark in the development of the law on this topic
Thus this decision also does not assist Mr Seervai in contending that it is a part of the privilege of the 1 11 12
2  480 House to insist that a general warrant issued by it must be treated as conclusive and is not examinable in courts of law
The next case is Howard vs Sir William Gosset1
In that case by a majority decision a warrant issued by the Speaker of the House against Howard was held to be invalid as a result of certain infirmities discovered in the warrant
Williams J alone dissented
The warrant in this case was a general warrant and Williams J held that the technical objections raised against the validity of the warrant could not be entertained because a general warrant should be treated as conclusive of the fact that the party against whom the warrant had been issued had been properly adjudged to be guilty of contempt
Since the judgment was pronounced in favour of the plaintiff Howard the matter was taken in appeal and the majority decision was reversed by the Court of Exchequer
Parke B considered the several arguments urged against the validity of the warrant and rejected them
The general ground for the decision of the Court of Exchequer was expressed in these words  We are clearly of opinion that at least as much respect is to be shewn and as much authority to be attributed to these mandates of the House as to those of the highest Courts in the country and if the officers of the ordinary Courts are bound to obey the process delivered to them and are therefore protected by it the officer of the House of Commons is as much bound and equally protected
The House of Commons is a part of the High Court of Parliament which is without question not merely a Superior but the Supreme Court in this country and higher than the ordinary courts of law1
Thus the result of this decision is that the House of Commons being part of the High Court of Parliament is a superior Court and the general warrants issued by it cannot be subjected to the close scrutiny just as similar warrants issued by other superior courts of record are held to be exempt from such scrutiny
It would be noticed that the Court of Exchequer has observed in this case that the House of Commons as a part of the High Court of Parliament is a Supreme Court in this country and is higher than the ordinary courts of law and this recalls the original judicial character of the House of Parliament in its early career and emphasises the fact that the House of Lords which is a part of the House of Parliament still continues to be the highest court of law in England
The last case in this series to which we ought to refer is the decision of the Queen s Bench Division in Bradlaugh vs 1  2 1bid
 at 174
481 Gossett1
This decision is not directly relevant or material but since Mr Seervai appeared to rely on certain statements of law enunciated by Stephen J we think it necessary to refer to it very briefly
In the case of Bradlaugh the Court was called upon to consider whether an action could lie against the Serjeantat Arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House directing him to do so and the answer was in the negative
It appears that the material resolution of the House of Commons was challenged as being contrary to law and in fact the Queen s Bench Division proceeded to deal with the claim of Bradlaugh on the footing that the said resolution may strictly not be in accordance with the true effect of the relevant provision of the law and yet it was held that the matter in dispute related to the internal management of the procedure of the House of Commons and so the Court of Queen s Bench had no power to interfere
It was pressed before the Court that the resolution was plainly opposed to the relevant provision of the law
In repelling the validity of this argument Stephen J observed that in relation to the rights and resolutions concerning its internal management the House stood precisely in the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians and to the judgments which apply them to particular cases that is to say they are bound by the most solemn obligations which can bind men to any course of conduct whatever to guide their conduct by the law as they understand it
The learned Judge then proceeded to add If they misunderstand it or I apologize for the supposition wilfully disregard it they resemble mistaken or unjust judges but in either case there is in my judgment no appeal from their decision
The law of the land gives no such appeal no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses
That said the learned Judge was enough to justify the conclusion which he had arrived at1
Mr Seervai s argument was that though the resolution appeared to constitute an infringement of the Parliamentary Oaths Act the Court refused to give any relief to Brad laugh and he suggested that a similar approach should be adopted in dealing with the present dispute before us
The obvious answer to this contention is that we are not dealing with any matter relating to the internal management of the House in the L R 2 lbid 286
482 present proceedings
We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside the fourwalls of the House and that essentially raises different considerations
Having examined the relevant decisions bearing on the point it would we think not be inaccurate to observe that the right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings has been based more on the consideration that the House of Commons is in the position of a superior court of record and has the right like other superior courts of record to issue a general warrant for commitment of persons found guilty of contempt
Like the general warrant issued by superior courts of record in respect of such contempt the general warrants issued by the House of Commons in similar situations should be similarly treated
It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the courts in habeas corpus proceedings
In this connection we ought to add that even while recognising the validity of such general warrants Judges have frequently observed that if they were satisfied upon the return that such general warrants were issued for frivolous or extravagant reasons it would be open to them to examine their validity
Realizing that the position disclosed by the decisions so far examined by us was not very favourable to the claim made by him that the conclusive character of the general warrants is a part of the privilege itself Mr Seervai has very strongly relied on the decisions of the Privy Council which seem to support his contention and so it is now necessary to turn to these decisions
The first decision in this series is in the case of the Speaker of the Legislative Assembly of Victoria vs Hugh Glass1
In that case by the Constitution Act for the Colony of Victoria power had been given to the Legislative Assembly of Victoria to commit by a general warrant for contempt and breach of privilege of that Assembly
In exercise of that power Glass was declared by the House to have committed contempt and under the Speaker s warrant which was in general terms he was committed to jail
A habeas corpus petition was then moved on his behalf and this petition was allowed by the Chief Justice of the Supreme Court in the Colony on the ground that the Constitution Statute and the Colonial Act did not confer upon the Legislative Assembly the same powers privileges and immunities as were possessed by 1 483 Assembly the decision of the Supreme Court in the Colony was reversed and it was held that the relevant Statute and the Act gave to the Legislative Assembly the same powers and privileges as the House of Commons had at the time of the passing of the said Acts
Having held that the Legislative Assembly had the same powers as the House of Commons the Privy Council proceeded to consider the nature and extent of these powers
Lord Cairns who delivered the judgment of the Privy Council observed that beyond all doubt one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt and incidental to that privilege it has  been well established in this country that the House of Commons have the right to be the judges themselves of what is contempt and to commit for that contempt by a Warrant stating that the commitment is for contempt of the House generally without specifying what the character of the contempt is  Then he considered the merits of the argument that the relevant Constitution Act did not confer on the Legislative Assembly of Victoria the incidental power of issuing a general warrant and rejected it Their Lordships consider said Lord Cairns that there is an essential difference between a privilege of committing for contempt such as would be enjoyed by an inferior Court namely privilege of first determining for itself what is contempt then of stating the character of the contempt upon a Warrant and then of having that Warrant subjected to review by some superior Tribunal and running the chance whether that superior Tribunal will agree or disagree with the determination of the inferior Court and the privilege of a body which determines for itself without review what is contempt and acting upon the determination commits for that contempt without specifying upon the Warrant the character or the nature of the contempt According to Lord Cairns the latter of the two privileges is a higher and more important one than the former and he added that it would be strange indeed if under a power to transfer the whole of the privileges and powers of the House of Commons that which would only be a part and a comparatively insignificant part of this privilege and power were transferred1
In other words this decision shows that the Privy Council took the view that the power to issue a general warrant and to insist upon the conclusive character of the said warrant it itself 1  573
484 a part of the power and privilege of the House
Even so it is significant that the distinction is drawn between the power and privilege of an inferior Court and the power and privilege of a superior Court and so the conferment of the larger power is deemed to have been intended by the relevant provision of the Constitution Act because the status intended to be conferred on the Legislative Assembly of Victoria was that of the superior Court
In other words the Legislative Assembly was treated as a superior Court and the power and privilege conferred on it was deemed to include both aspects of the power
Incidentally it may be pointed out with respect that in considering the question Lord Cairns did not apparently think it necessary to refer to the earlier English decisions in which the question about the extent of this power and its nature had been elaborately considered from time to time
The next Privy Council decision on which Mr Seervai relied is Fielding and Others vs Thomas1
In that case the question about the extent of the power conferred on the Nova Scotia House of Assembly fell to be considered and it was held by the Privy Council that the said Assembly had statutory power to adjudicate that wilful disobedience to its order to attend in reference to a libel reflecting on its members is a breach of privilege and contempt and to punish that breach by imprisonment
For our present purpose it is not necessary to refer to the relevant provisions of the statute on which the argument proceeded or the facts which gave rise to the action
It is only one observation made by Lord Halsbury which must be quoted
Said Lord Halsbury in that case  The authorities summed up in Burdett vs Abbot1 and followed in the Case of The Sheriff of Middlesex1 establish beyond all possibility of controversy the right of the House of Commons of the United Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of law and without having its process interfered with by those courts 4  It is the last part of this observation which lends some support to Mr Seervai s case
All that we need say about this observation is that it purports to be based on two earlier decisions which we have already examined and that it is not easily reconcilable with the reservations made by some of the Judges who had occasion to deal with this point in regard to their jurisdiction to examine the validity of the imprisonment of a petitioner where it appeared that the warrant issued by the House 1 2  3 113 ER419
4 18961 LRAC 600 609
485 of Commons appeared on a return made by the House to be palpably frivolous or based on extravagant or fantastic reasons
The last decision on which Mr Seervai relies is the case of The Queen vs Richards1
In that case the High Court of Australia was called upon to construe the provisions of section 49 which are similar to the provisions of article 1943 of our Constitution
Section 49 reads thus  The powers privileges and immunities of the Senate and of the House of Representatives and of the members and the committees of each House shall be such as are declared by the Parliament and until declared shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees at the establishment of the Commonwealth
 One of the points which fell to be considered was what was the nature and extent of the powers privileges and immunities conferred by section 49 of the Constitution on the Senate and the House of Representatives in Australia  It appears that in that case Fitzpatrick and Browne were taken into custody by Edward Richards in pursuance of warrants issued by the Speaker of the House of Representatives of the Parliament of the Commonwealth
These warrants were general in character and they commanded Richards to receive the said two persons into his custody
On June 10 1955 on the application of Fitzpatrick and Browne as prosecutors the Supreme Court of the Australian Capital Territory Simpson J granted an order nisi for two writs of habeas corpus directed to the said Edward Richards
On June 15 1955 Simpson J acting under section 13 of the Australian Capital Territory Supreme Court Act directed that the case be argued before a Full Court of the High Court of Australia
That is how the matter went before the said High Court
The High Court decided that section 49 operated independently of section 50 and was not to be read down by implications derived from the general structure of the Constitution and the separation of powers thereunder
Construing section 49 independently of section 50 the High Court held that the powers privileges and immunities of the House of Commons at the establishment of the Commonwealth were conferred on the Parliament and since Parliament had made no declaration within the meaning of the said section it was necessary to consider what the powers of the House of Commons were at the relevant time in order to determine the 1  486 question as to whether a general warrant could be issued by Parliament or not and the High Court held that under section 49 the Australian Parliament could claim the privilege of judging what is contempt and of committing therefor
It was also held that if the Speaker s warrant is upon its face consistent with the breach of an acknowledged privilege it is conclusive notwithstanding that the breach of privilege is stated in general terms
In other words this decision undoubtedly supports Mr Seervai s contention that a general warrant issued by the House in the present case is not examinable by the High Court
In appreciating the effect of this decision it is necessary to point out that so far as Australia was concerned the point in issue had been already established authoritatively by the decisions of the Privy Council in Dill vs Murphy 1 as well as in Hugh Glass2
In fact fact Dixon CJ has expressly referred to this aspect of the matter
Naturally he has relied on the observations made by Lord Cairns in Hugh Glass and has followed the said observations in deciding the point raised before the High Court of Australia
That is the basis which was adopted by Dixon CJ in dealing with the question
Having adopted this approach the learned Chief Justice thought it unnecessary to discuss at length the situation in England because what the situation in England was had been conclusively determined for the guidance of the Australian courts by the observations made by Lord Cairns in Hugh Glass1
Even so he has observed that the question about the powers privileges and immunities of the House of Commons is one which the courts of law in England have treated as a matter for their decision though he has added that the courts in England arrived at that position after a long course of judicial decision not unaccompanied by political controversy
The law in England was finally settled about 1840
 This observation obviously refers to the Case of the Sheriff of Middlesex
To quote the words of the learned Chief Justice  Stated shortly it is this  it is for the courts to judge of the existence in either House of Parliament of a privilege but given an undoubted privilege it is for the House to judge of the occasion and of the manner of its exercise
The judgment of the House is expressed by its resolution and by the warrant of the Speaker
If the warrant specifies the ground of the commitment the court may it would seem determine whether it is sufficient in law as a ground to amount to a breach of privilege but if the warrant is upon its 115 ER 78418641 Moo PCNS487
21869 71 3LRPC560
3  487 face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms
This statement of law appears to be in accordance with cases by which it was finally established namely the Case of the Sheriff of Middlesex1
Thus even according to Chief Justice Dixon the existence and extent of privilege is a justiciable matter and can be adjudicated upon by the High Court
If the warrant is a speaking warrant the Court can determine whether it is sufficient in law as a ground to amount to breach of privilege though if the warrant is unspeaking or general the court cannot go behind it
In our opinion it would not be reasonable to treat this decision as supporting the claim made by the House that the conclusive character of its general warrant is a part and parcel of its privilege
The learned Chief Justice in fact did not consider the question on the merits for himself
He felt that he was bound by the observations made by Lord Cairns and he has merely purported to state what in his opinion is the effect of the decision in the Case of the Sheriff of Middlesex1
Besides there is another aspect of this matter which cannot be ignored
The learned CJ Dixon was dealing with the construction of section 49 of the Australian Constitution and as GwyerCJ has observed in In re The Central Provinces and Berar Act No XIV of 1938 2 there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting and since no two Constitutions are in identical terms it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another
 The learned Chief Justice has significantly added that this may be so even where the words or expressions used are the same in both cases for a word or a phrase may take a colour from its context and bear different senses accordingly p 38
These observations are particularly relevant and appropriate in the context of the point which we are discussing
Though the words used in section 49 of the Australian Constitution are substantially similar to the words used in article 1943 there are obvious points on which the relevant provisions of our Constitution differ from those of the Australian Constitution
Take for instance article 32 of our Constitution
As we have already noticed article 32 confers on the citizens of India the fundamental right to move 1  1 Sup
CI65 6 2 488 this Court
In other words the right to move this Court for breach of their fundamental rights is itself a fundamental right
The impact of this provision as well as of the provisions contained in article 226 on the construction of the latter part of Article 1943 has already been examined by us it may be that there are some provisions in the Australian Constitution which may take in some of the rights which are safeguarded under article 226 of our Cons titution
article 32 finds no counter part in the Australian Constitution
Likewise there is no provision in the Australian Constitution corresponding to article 211 of ours  and the presence of these distinctive features contributes to make a substantial difference in the meaning and denotation of similar words used in the two respective provisions
viz section 49 of the Australian Constitution and article 1943 of ours
Besides the declaration to which section 49 refers may not necessarily suffer to the same extent from the limitation which would govern a law when it is made by the Indian Legislatures under the first part of article 1943
These distinctive features of the relevant and material provisions of our Constitution would make it necessary to bear in mind the words of caution and warning which Gwyer CJ uttered as early as 1938
Therefore we think that it would not be safe or reasonable to rely too much on the observations made by Dixon CJ in dealing with the question of privileges in the case of Richards1
Before we part with this topic however we may incidentally point out that the recent observations made by Lord Parker CJ in In re Hunt1 indicate that even in regard to a commitment for contempt by the superior court of record the court exercising its jurisdiction over a petition filed for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the warrant of commitment is general or unspeaking
Dealing with the arguments urged by Kenneth Douglas Hunt who had been committed for contempt by WynnParry J Parker CJ observed  It may be that the true view is and I think the cases support it that though this Court always has power to inquire into the legality of the committal it will not inquire whether the power has been properly exercised He however added that in the case before him he was quite satisfied that the application ought to fail on the merits
These observations tend to show that in exercising habeas corpus jurisdiction a court at Westminster has jurisdiction to inquire into the legality of the commitment even though the commitment has been ordered 1 92 CLR157
2 489 by another superior court of record
If that be the true position it cannot be assumed with certainty that Courts at Westminster would today concede to the House of Commons the right to claim that its general warrants are unexaminable by them
Even so let us proceed on the basis that the relevant right Claimed by the House of Commons is based either on the ground that as a part of the High Court of Parliament the House of Commons is a superior court of record and as such a general Warrant for commitment issued by it for contempt is treated as conclusive by courts at Westminster Hall or in course of time the right to claim a conclusive character for such a general warrant became an incidental and integral part of the privilege itself
The question which immediately arises is can this right be deemed to have been conferred on the House in the present proceedings under the latter part of article 1943  Let us first take the basis relating to the status of the House of Commons as a Superior Court of Record
Can the House claim such a status by any legal fiction introduced by article 1943  In our opinion the answer to this question cannot be in the affirmative
The previous legislative history in this matter does not support the idea that our State Legislatures were superior Courts of Record under the Constitution Act of 1935
Section 28 of the said Act which dealt with the privileges of the Federal Legislature is relevant on this point
section 281 corresponds to article 1943 of the present Constitution
Section 282 provides that in other respects the privileges of members of the Chambers shall be such as may from time to time be defined by Act of the Federal Legislature and until so defined shall be such as were immediately before the establishment of the Federation enjoyed by members of the Indian Legislature
it is not disputed that the members of the Indian Legislature could not have claimed the status of being members of a superior Court of Record prior to the Act of 1935
Section 283 prescribes that nothing in any existing Indian Act and notwithstanding anything in the foregoing provisions of this section nothing in this Act shall be construed as conferring or empowering the Federal Legislature to confer on either Chamber or on both Chambers sitting together or on any committee or officer of the Legislature the status of a Court or any punitive or disciplinary powers other than a power to remove or exclude persons infringing the rules or standing orders or otherwise behaving in a disorderly manner
Section 28 4 is also relevant for our purpose
It provides that provision may be made by an Act of the Federal Legislature for the punish 490 ment on conviction before a Court of persons who refuse to give evidence r produce documents before a committee of a Chamber when duly required by the Chairman of the committee so to do There can be no doubt that these provisions clearly indicate that the Indian Legislature could not have claimed the power to punish for contempt committed outside the four walls of its Legislative Chamber
Section 71 of the same Act deals with the Pro vincial Legislatures and contains similar provisions in its clauses 2 3 and 4
After the Indian Independence Act 1947 1 0  11 Geo
VI c 20 was passed this position was altered by the amendments made in the Government of India Act 1935 by various amendment orders
The result of the amendment orders including Third Amendment Order 1948 was that sub sections 3 and 4 of section 28 of the said Act were deleted and sub section 2 was amended
The effect of this amendment was that the members of the Federal Chambers of Legislature could until their privileges were defined by Act of Federal Legislature claim the privileges enjoyed by the members of the House of Commons which were in existence immediately before the establishment of the Federation
It is however remarkable that the corresponding subsections 3 and 4 of section 71 were retained
The question as to whether the result of the deletion of sub sections 3 and 4 and the amendment of sub section 2 of section 28 was to confer on the Federal Legislature the same status as that of the House of Commons does not call for our decision in the present Reference
Prima facie it may conceivably appear that the conferment of the privileges of the members of the House of Commons on the members of the Federal Legislature could not necessarily make the Federal Legislature the House of Commons for all purposes but that is a matter which we need not discuss and decide in the present proceedings
The position with regard to the Provincial Legislatures at the relevant time is however absolutely clear and there would obviously be no scope for the argument that at the time when the Constitution was passed the Provincial Legislatures could claim the status of the House of Commons and as such of a superior Court of Record
That is the constitutional background of article 1943 insofar as the Provincial Legislatures are concerned
Considered in the light of this background it is difficult to accept the argument that the result of the provisions contained in the latter part of article 1943 was intended to be to confer on the State Legislatures in India the status of a superior Court of Record 491 In this connection it is essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons is based on historical facts to which we have already referred
It is a fact of English history that the parliament was discharging judicial functions in its early career
It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest Court of law in the country
It is a fact of constitutional history even today that both the Houses possess powers of impeachment and attainder
It is obvious we think that these historical facts cannot be introduced in India by any legal fiction
Appropriate legislative provisions do occasionally introduce legal fictions but there is a limit to the power of law to introduce such fictions
Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf but legal fiction can hardly introduce historical facts from one country to another
Besides in regard to the status of the superior Court of Record which has been accorded to the House of Commons there is another part of English history which it is necessary to remember
The House of Commons had to fight for its existence against the King and the House of Lords and the Judicature was regarded by the House of Commons as a creature of the King and the Judicature was obviously subordinate to the House of Lords which was the main opponent of the House of Commons
This led to fierce struggle between the House of Commons on the one hand and the King and the House of Lords on the other
There is no such historical background in India and there can be no historical justification for the basis on which the House of Commons struggled to deny the jurisdiction of the Court that is another aspect of the matter which is relevant in considering the question as to whether the House in the present case can claim the status of a superior Court of Record
There is no doubt that the House has the power to punish for contempt committed outside its chamber and from that point of view it may claim one of the rights possessed by a Court of Record
A Court of Record according to Jowitt s Dictionary of English Law is a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony and which has power to fine and imprison for contempt of its authority
The House and indeed all the Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional background does not support the claim that they can be 492 regarded as Courts of Record in any sense
If that be so the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record is absent in the present case and so it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons by agreement is deemed to possess is vested in the House
On this view of the matter the claim made by the House must be rejected
Assuming however that the right claimed by the House can be treated as an integral part of the privileges of the House of Commons the question to consider would be whether such a right has been conferred on the House by the latter part of article 1943
On this alternative hypothesis it is necessary to consider whether this part of the privilege is consistent with the material provisions of our Constitution
We have already referred to Articles 32 and 226
Let us take article 32 because it emphatically brings out the significance of the fundamental right conferred on the citizens of India to move this Court if their fundamental rights are contravened either by the Legislature or the Executive
Now article 32 makes no exception in regard to any encroachment at all and it would appear illogical to contend that even if the right claimed by the House may contravene the fundamental rights of the citizen the aggrieved citizen cannot successfully move this Court under article 32
To the absolute constitutional right conferred on the citizens by article 32 no exception can be made and no exception is intended to be made by the Constitution by reference to any power or privilege vesting in the Legislatures of this country
As we have already indicated we do not propose to enter into a general discussion as to the applicability of all the fundamental rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country and that we are dealing with this matter on the footing that article 19 1 a does not apply and article 21 does
If an occasion arises it may become necessary to consider whether article 22 can be contravened by the exercise of the power or privilege under article 1943
But for the moment we may consider article 20
If article 21 applies article 20 may conceivably apply and the question may arise if a citizen complains that his fundamental right had been contravened either under article 20 or article 21 can he or can he not move this Court under article 32  For the purpose of making the point which we are discussing the applicability of article 21 itself would 493 be enough
If a citizen moves this Court and complains that his fundamental right under article 21 had been contravened it would plainly be the duty of this Court to examine the merits of the said contention and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law
In fact this question was actually considered by this Court in the case of Pandit Sharma
It is true that the answer was made in favour of the legislature but that is wholly immaterial for the purpose of the present discussion
If in a given case the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law but for capricious or mala fide reasons this Court will have to examine the validity of the said contention and it would be no answer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny
In our opinion therefore the impact of the fundamental constitutional right conferred on Indian citizens by article 32 on the construction of the latter part of article 1943 is decisively against the view that a power or privilege can be claimed by the House though it may be inconsistent with article 21
In this connection it may be relevant to recall that the rules which the House has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution under article 2081
Then take the case of article 211 and see what its impact would be on the claim of the House with which we are dealing
If the claim of the House is upheld it means that the House can issue a general warrant against a Judge and no judicial scrutiny can be held in respect of the validity of such a warrant
It would indeed be strange that the Judicature should be authorised to consider the validity of the legislative acts of our Legislatures but should be prevented from scrutinising the validity of the action of the legislatures trespassing on the fundamental rights conferred on the citizens
If the theory that the general warrant should be treated as conclusive is accepted then as we have already indicated the basic concept of judicial independence would be exposed to very grave jeopardy and so the impact of article 211 on the interpretation of article 1943 in respect of this particular power is again decisively against the contention raised by the House
If the power of the High Courts under article 226 and the authority of this Court under article 32 are not subject to any exceptions then it would be futile to contend that a citizen cannot move the 1 1959 Supp 1 SCR 806
494 High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated
The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless
Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens  fundamental rights and so in the existence of the said judicial power itself is necessarily involved the right of the citizen
to appeal to the said power in a proper case
In In re Parliamentary Privilege Act 17701 the Privy Council was asked to consider whether the House of Commons would be acting contrary to the Parliamentary Privilege Act 1770 if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its privileges
The said question had given rise to some doubt and so it was referred to the Privy Council for its opinion
The opinion expressed by the Privy Council was in favour of Parliament
Confining its answer to the said limited question the Privy Council took the precaution of adding that they express no opinion whether the proceedings referred to in the introductory paragraph were a proceeding in Parliament a question not discussed before them nor on the question whether the mere is sue of a writ would in any circumstances be a breach of privilege In taking this course said Viscount Simonds who spoke for the Privy Council they have been mindful of the inalienable right of Her Majesty s subjects to have recourse to her courts of law for the remedy of their wrongs and would not prejudice the hearing of any cause in which a plaintiff sought relief
 The inalienable right to which Viscount Simonds referred is implicit in the provisions of article 226 and article 32 and its existence is clearly incon sistent with the right claimed by the House that a general warrant should be treated as conclusive in all courts of law it would also be equally inconsistent with the claim made by the House that Keshav Singh has committed contempt by moving the High Court under article 226
In this connection it would be interesting to refer to a resolution passed by the House of Lords in 1704
By this resolution it was declared that deterring electors from prosecuting actions in the ordinary courts of law where they are deprived of their right of voting and terrifying attorneys solicitors counsellors and serjeants at law from soliciting prosecuting and pleading in such cases by voting their so doing to be a breach of privilege of the 1  495 House of Commons is a manifest assuming of power to control the law to hinder the course of justice and subject the property of Englishmen to the arbitrary votes of the House of Commons
This was in answer to the resolution passed by the House of Commons in the same year indicating that the House would treat the conduct of any person in moving the court for appropriate reliefs in matters mentioned by the resolution of the House as amounting to its contempt
These resolutions and counterresolutions merely illustrate the fierce struggle which was going on between the House of Commons and the House of Lords during those turbulent days but the interesting part of this dispute is that if a question had gone to the House of Lords in regard to the competence of the House of Commons to punish a man for invoking the jurisdiction of the ordinary courts of law the House of Lords would undoubtedly have rejected such a claim and that was the basic apprehension of the House of Commons which was responsible for its refusal to recognise the jurisdiction of the courts which in the last analysis were subordinate to the House of Lords
Section 30 of the 25 of 1961 confers on all Advocates the statutory right to practise in all courts including the Supreme Court before any tribunal or person legally authorised to take evidence and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise
Section 14 of the Bar Councils Act recognises a similar right
If a citizen has the right to move the High Court or the Supreme Court against the invasion of his fundamental rights the statutory right of the advocate to assist the citizen steps in and helps the enforcement of the fundamental rights of the citizen
It is hardly necessary to emphasise that in the enforcement of fundamental rights guaranteed to the citizens the legal profession plays a very important and vital role and so just as the right of the Judicature to deal with matters brought before them under article 226 or article 32 cannot be subjected to the powers and privileges of the House under article 1943 so the rights of the citizens to move the Judicature and the rights of the advocates to assist that process must remain uncontrolled by Article 1943
That is one integrated scheme for enforcing the fundamental rights and for sustaining the rule of law in this country
Therefore our conclusion is that the particular right which the House claims to be an integral part of its power or privilege is inconsistent with the material provisions of the Constitution and cannot be deemed to have been included under the latter part of article 1943
496 In this connection we ought to add that there is no substance in the grievance made by Mr Seervai that Keshav Singh acted illegally in impleading the House to the habeas corpus petition filed by him before the Lucknow Bench
In our opinion it cannot be said that the House was improperly joined by Keshav Singh because it was open to him to join the House on the ground that his commitment was based on the order passed by the House and in that sense the House was responsible for and had control over his commitment vide The King vs The Earl of Crewe Ex parte Sekgome1 and The King vs Secretary of State for Home Affairs Ex parte O brien2
Besides the fact that Keshav Singh joined the House to his petition can have no relevance or materiality in determining the main question of the power of the House to take action against the Judges the Advocate and the party for their alleged contempt
As we have indicated at the outset of this opinion the crux of the matter is the construction of the latter part of article 1943 and in the light of the assistance in which we must derive from the other relevant and material provisions of the Constitution it is necessary to hold that the particular power claimed by the House that its general warrants must be held to be conclusive cannot be deemed to be the subject matter of the latter part of article 1943
In this connection we may incidentally observe that it is somewhat doubtful whether the power to issue a general unspeaking warrant claimed by the House is consistent with section 5542b and section 555 of the Code of Criminal Procedure
It appears that in England general warrants are issued in respect of commitment for contempt by superior courts of record and the whole controversy on this point therefore rested on the theory that the right to issue a general warrant which is recognised in respect of superior Courts of Record must be conceded to the House of Commons because as a part of the High Court of Parliament it is itself a superior Court of Record
Before we part with this topic there are two general considerations to which we ought to advert
It has been urged before us by Mr Seervai that the right claimed by the House to issue a conclusive general warrant in respect of contempt is an essential right for the effective functioning of the House itself and he has asked us to deal with this matter from this point of view
It is true that this right appears to have been recognised by courts in England by agreement or convention or by considerations of comity but we think it is strictly not accurate to say that every 1 2 497 democratic legislature is armed with such a power
Take the case of the American Legislatures
Article 1 section 5 of the American Constitution does not confer on the American Legislature such a power at all
it provides that each House shall be the judge of the Elections Returns and Qualifications of its own Members and a majority of each shall constitute a quorum to do business but a smaller number may adjourn from day to day and may be authorised to compel the attendance of absent Members in such manner and under such penalties as each House may provide
Each House may determine the Rules of its proceedings punish its Members for disorderly behaviour and with the concurrence of two thirds expel a Member
Contempt committed outside the four walls of the legislative chamber by a citizen who is not a Member of the House seems to be outside the jurisdiction of the American Legislature  As Willis has observed punishment for contempt is clearly a judicial function yet in the United States Congress may exercise the power to punish for contempt as it relates to keeping order among its own members to compelling their attendance to protecting from assaults or disturbances by others except by slander and libel to determining election cases and impeachment charges and to exacting information about other departments in aid of the legislative function1
Nobody has ever suggested that the American Congress has not been functioning effectively because it has not been armed with the particular power claimed by the House before us
In India there are several State Legislatures in addition to the Houses of Parliament
If the power claimed by the House before us is conceded it is not difficult to imagine that its exercise may lead to anomalous situations
If by virtue of the absolute freedom of speech conferred on the Members of the Legislatures a Member of one Legislature makes a speech in his legislative chamber which another legislative chamber regards as amounting to its contempt what would be the position  The latter legislative chamber can issue a general warrant and punish the Member alleged to be in contempt and a free exercise of such power may lead to very embarrassing situations
That is one reason why the Constitution makers thought it necessary that the Legislatures should in due course enact laws in respect of their powers privileges and immunities because they knew that when such laws are made they would be subject to the fundamental rights and would be open to examination by the courts in India
Pending the making of such laws powers privileges and immunities were conferred by the latter part of article 1943
As we have already 1 Wills constitutional Law p 145
498 emphasised the construction of this part of the article is within the jurisdiction of this Court and in construing this part we have to bear in mind the other relevant and material provisions of the Constitution
Mr Seervai no doubt invited our attention to the fact that the Committees of Privileges of the Lok Sabha and the Council of States have adopted a Report on May 22 1954 with a view to avoid any embarrassing or anomalous situations resulting from the exercise of the legislative powers and privileges against the members of the respective bodies and we were told that similar resolutions have been adopted by almost all the Legislatures in India
But these are matters of agreement not matters of law and it is not difficult to imagine that if the same political party is not in power in all the States these agreements themselves may not prove to be absolutely effective
Apart from his aspect of the matter in construing the relevant clause of article 1943 these agreements can play no significant part
In the course of his arguments Mr Seervai laid considerable emphasis on the fact that in habeas corpus proceedings the High Court had no jurisdiction to grant interim bail
It may be conceded that in England it appears to be recognised that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of contempt bail is not granted by courts
As a matter of course during the last century and more in such habeas corpus proceedings returns are made according to law by the House of Commons but the general rule is that the parties who stand committed for contempt cannot be admitted to bail
 But it is difficult to accept the argument that in India the position is exactly the same in this matter
If article 226 confers jurisdiction on the Court to deal with the validity of the order of commitment even though the commitment has been ordered by the House how can it be said that the Court has no jurisdiction to make an interim order in such proceedings As has been held by this Court in State of Orissa vs Madan Gopal Rungta and Others an interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding
Indeed as Maxwell has observed when an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution2
That being so the argument based on the relevant provisions of the Criminal Procedure 1 1952 SCR 28
2 Maxwell on Interpretation of Statutes 11th ed p 350
499 Code and the decision of the Privy Council in Lala Jairam Das and Others vs King Emperor1 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 the propriety or reasonableness of the exercise of such jurisdiction
Besides in the case of a superior Court of Record it is for the court to consider whether any matter falls within its jurisdiction or not
Unlike a court of limited jurisdiction the superior Court is entitled to determine for itself questions about its own jurisdiction
Prima facie says Halsbury no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court
We cannot therefore accede to the proposition that in passing the order for interim bail the High Court can be said to have exceeded its jurisdiction with the result that the order in question is null and void
Besides the validity of the order has no relation whatever with the question as to whether in passing the order the Judges have committed contempt of the House
There is yet one more aspect of this matter to which we may incidentally refer
We have already noticed that in the present case when the habeas corpus petition was presented before the Lucknow Bench at 2 Pm on March 19 1964 both parties
appeared by their respective Advocates and agreed that the application should be taken up at 3 Pm the same day and yet the House which was impleaded to the writ petition and the other respondents to it for whom Mr Kapur had appeared at the earlier stage were absent at that time
That is how the Court directed that notice on the petition should be issued to the respondents and released the petitioner on bail subject to the terms and conditions which have already been mentioned and it is this latter order of bail which has led to the subsequent developments
In other words before taking the precipitate action of issuing warrants against the Judges of the Lucknow Bench the House did not conform to the uniform practice which the House of Commons has followed for more than a century past and did not instruct its lawyer either to file a return or to ask for time to do so and to request that the Court should stay its hands until the return was filed
It is not disputed that whenever commitment orders passed by the House of Commons are challenged in England before 1 72 IA 120
2 Halsbury s Laws of England vol 9 p 349
500 the Courts at Westminster the House invariably makes a return and if the warrant issued by it is general and unspeaking it is so stated in the return and the warrant is produced
If this course had been adopted in the present proceedings it could have been said that the House in exercising its powers and privileges conformed to the pattern which by convention the House of Commons has invariably followed in England during the last century and more but that was not done and as soon as the House knew that an order granting bail had been passed it proceeded to consider whether the Judges themselves were not in contempt
On these narrow facts it would be possible to take the view that no question of contempt committed by the Judges arises
In view of the fact that Mr Kapur had appeared before the Court at 2 Pm on behalf of all the respondents and had agreed that the matter should be taken up at 3 Pm it was his duty to have appeared at 3 Pm and to have either filed a return or to have asked for time to do so on behalf of the House
If the House did not instruct Mr Kapur to take this step and the Court had no knowledge as to why Mr Kapur did not appear it is hardly fair to blame the Court for having proceeded to issue notice on the petition and granted bail to the petitioner
In these proceedings it is not necessary for us to consider what happened between Mr Kapur and the House and why Mr Kapur did not appear at 3 Pm to represent the House and the other respondents
The failure of Mr Kapur to appear before the Court at 3 Pm has introduced an unfortunate element in the proceedings before the Court and is partly responsible for the order passed by the Court
One fact is clear and that is that at the time when the Court issued notice and released the petitioner on bail it had no knowledge that the warrant under which the petitioner had been sentenced was a general warrant and no suggestion was made to the Court that in the case of such a warrant the Court had no authority to make any order of bail
This fact cannot be ignored in dealing with the case of the House that the Judges committed contempt in releasing the petitioner on bail
But we ought to make it clear that we do not propose to base our answers on this narrow view of the matter because questions 3 and 5 are broad enough and they need answers on a correspondingly broad basis
Besides the material questions arising from this broader aspect have been fully argued before us and it is plain that in making the present Reference the President desires that we should render our answers to all the questions and not exclude from our consideration any relevant aspects on the ground 501 that these aspects would not strictly arise on the special facts which have happened so far in the present proceedings
In conclusion we ought to add that throughout our discus sion we have consistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a Member of the House outside the four walls of the House is conclusive for it is on that claim that the House has chosen to take the view that the Judges the Advocate and the party have committed contempt by reference to their conduct in the habeas corpus petition pending before the Lucknow Bench of the Allahabad High Court
Since we have held that in the present case no contempt was committed either by the Judges or the Advocate or the party respectively it follows that it was open to the High Court of Allahabad and indeed it was its duty to entertain the petitions filed before it by the two Judges and by the Advocate and it was within its jurisdiction to pass the interim orders prohibiting the further execution of the impugned orders passed by the House
Before we part with this topic we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt
So far as the courts are concerned Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul vs Attorney General of Trinidad1
Said Lord Atkin Justice is not a cloistered virtue she must be allowed to suffer the scrutiny and respectful even though out spoken comments of ordinary men
 We ought never to forget that the power to punish for contempt large as it is must always be exercised cautiously wisely and with circumspection
Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court but may sometimes affect it adversely
Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments the fearlessness fairness and objectivity of their approach and by the restraint dignity and decorum which they observe in their judicial conduct
We venture to think that what is true of the Judicature is equally true of the Legislatures
Having thus discussed all the relevant points argued before us and recorded our conclusions on them we are now in a position 1 AIR 1936 PC 141
502 to render our answers to the five questions referred to us by the President
Our answers are 1 On the facts and circumstances of the it was competent for the Lucknow Bench of the High Court of Uttar Pradesh consisting of N U Beg and G D Sahgal JJ to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition
2 On the facts and circumstances of the case Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid Mr B Solomon Advocate by presenting the said petition and the said two Hon ble Judges by entertaining and dealing with the said petition and order ing the release of Keshav Singh on bail pending disposal of the said petition did not commit contempt of the Legislative Assembly of Uttar Pradesh
3 On the facts and circumstances of the case it was not competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon ble Judges and Mr B Solomon Advocate before it in custody or to call for their explanation for its contempt
4 On the facts and circumstances of the case it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon ble Judges and Mr B Solomon Advocate and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly and 5 In rendering our answer to this question which is very broadly worded we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four walls of the legislative chamber A Judge of a High Court who entertains or deals with 503 a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition does not commit contempt of the said Legislature and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers privileges and immunities
In this answer we have deliberately omitted reference to infringement of privileges and immunities of the House which may include priveleges and immunities other than those with which we are concerned in the present Reference
Sarkar J
This matter has come to us on a reference made by the President under article 143 of the Constitution
The occasion for the reference was a sharp conflict that arose and still exists between the Vidhan Sabha Legislative Assembly of the Uttar Pradesh State Legislature hereinafter referred to as the Assembly and the High Court of that State
That conflict arose because the High Court had ordered the release on bail of a person whom the Assembly had committed to prison for contempt
The Assembly considered that the action of the Judges making the order and of the lawyer concerned in moving the High Court amounted to contempt and started proceedings against them on that basis and the High Court thereupon issued orders restraining the Assembly and its officers from taking steps in implementation of the view that the action of the Judges and the lawyer and also the person on whose behalf the High Court had been moved amounted to contempt
A very large number of parties appeared on the reference and this was only natural because of the public importance of the question involved
These parties were divided into two broad groups one supporting the Assembly and the other the High Court
I shall now state the actual facts which gave rise to the conflict
The Assembly had passed a resolution that a reprimand be administered to one Keshav Singh for having committed contempt of the Assembly by publishing a certain pamphlet libelling one of its members
No question as to the legality of this resolution arises in this case and we are concerned only with what followed
Keshav Singh who was a resident of Gorakhpar in spite of being repeatedly required to do so failed to appear before the Assembly which held its sittings in Lucknow to receive the reprimand 504 alleging inability to procure money to pay the fare for the necessary railway journey
He was thereupon brought under the custody of the Marshal of the Assembly in execution of a warrant issued by the Speaker in that behalf and produced at the Bar of the House on March 14 1964
He was asked his name by the Speaker repeatedly but he would not answer any question at all
He stood there with his back to the Speaker showing great disrespect to the House and would not turn round to face the Speaker though asked to do so
The reprimand having been administered the Speaker brought to the notice of the Assembly a letter dated March 11 1964 written by Keshav Singh to him in which he stated that he protested against the sentence of reprimand and had absolutely no hesitation in calling a corrupt man corrupt adding that the contents of his pamphlet were correct and that a brutal attack had been made on democracy by issuing the Nadirshahi Firman warrant upon him
Keshav Singh admitted having written that letter
The Assembly thereupon passed a resolution that Keshav Singh be sentenced to imprisonment for seven days for having written a letter worded in language which constitutes contempt of the House and his misbehaviour in view of the House
 A general warrant was issued to the Marshal of the House and the Superintendent District Jail Lucknow which stated Whereas the 
Assembly has decided  that Shri Keshav Singh be sentenced to simple imprisonment for seven days for committing the offence of the contempt of the Assembly it is accordingly ordered that Keshav Singh be detained in the District Jail Lucknow for a period of seven days
 The warrant did not state the facts which constituted the contempt
Keshav Singh was thereupon taken to the Jail on the same day and kept imprisoned there
On March 19 1964 B Solomon an advocate presented a petition to a Bench of the High Court of Uttar Pradesh then constituted by Beg and Sahgal JJ which sat in Lucknow for a writ of habeas corpus for the release of Keshav Singh alleging that he had been deprived of his personal liberty without any authority of law and that this detention was mala fide
This Bench has been referred to as the Lucknow Bench
This petition was treated as having been made under article 226 of the Constitution and section 491 of the Code of Criminal Procedure
On the same date the learned Judges made an order that Keshav Singh be released on bail and that the petition be admitted and notice be issued to the respondents named in it
Keshav Singh was promptly released on bail
This order interfered with the sentence of imprisonment passed by the House by permitting Keshav Singh to be released before he had served the full term of his sentence
On March 21 1964 the Assembly 505 passed a resolution stating that Beg J Sahgal J B Solomon and Keshav Singh had committed contempt of the House and that Keshav Singh be immediately taken into custody and kept confined in the District Jail for the remaining term of his imprisonment and that Beg J Sahgal J and B Solomon be brought in custody before the House and also that Keshav Singh be brought before the House after he had served the remainder of his sentence
Warrants were issued on March 23
1964 to the Marshal of the House and the Commissioner of Lucknow for carrying out the terms of the resolution
On the same day Sahgal J moved a petition under article 226 of the Constitution in the High Court of Uttar Pradesh at Allahabad for a writ of certiorari quashing the resolution of the Assembly of March 21 1964 and for other necessary writs restraining the Speaker and the Marshal of the Assembly and the State Government from implementing that resolution and the execution of the orders issued pursuant to the resolution
The petition however did not mention that the warrants had been issued
That may have been because the warrants were issued after the petition had been presented or the issue of the warrant was not known to the petitioner
This petition was heard by all the Judges of the High Court excepting Sahgal and Beg JJ
and they passed an order on the same day directing that the implementation of the resolution be stayed
Similar petitions were presented by B Solomon and Beg J and also by other parties including the Avadh Bar Association and on some of them similar orders as on the petition of Sahgal J appear to have been made
On March 25 1964 the Assembly recorded an observation that by its resolution of March 21 1964 it was not its intention to decide that Beg J Sahgal J B Solomon and Keshav Singh had committed contempt of the House without giving them a hearing but it had required their presence before the House for giving them an opportunity to explain their position and it resolved that the question may be decided after giving an opportunity to the above named persons according to the rules to explain their conduct
Pursuant to this resolution notices were issued on March 26 1964 to Beg J Sahgal J and B Solomon informing them that they may appear before the Committee at 10 AM on April 6 1964   to make their submissions
The warrants issued on March 23 1964 which had never been executed were withdrawn in view of these notices
The present reference was made on March 26
1964 and thereupon the Assembly withdrew the notices of March 26 1964 stating that in view of the reference the two Judges and Solomon and Keshav Singh need not appear before the Privilege Committee as required
506 These facts are set out in the recitals contained in the order of reference
There is however one dispute as to the statement of facts in the recitals
It is there stated that the Assembly resolved on March 21 1964 that the two Judges Solomon and Keshav Singh committed by their actions aforesaid contempt of the House
 The words actions aforesaid referred to the presentation of the petition of Keshav Singh of March 19 1964 and the order made thereon
It is pointed out on behalf of the Assembly that the resolution does not say what constituted the contempt
This contention is correct
The main question in this reference is whether the Assembly has
the privilege of committing a person to prison for contempt by general warrant that is without stating the facts which constituted the contempt and if it does so have the courts of law the power to examine the legality of such a committal  In other words if there is such a privilege does it take precedence over the fundamental rights of the detained citizen
It is said on behalf of the Assembly that it has such a privilege and the interference by the court in the present case was without jurisdiction
The question is then of the privilege of the Assembly for if it does lot possess the necessary privilege it is not disputed that what the High Court has done in this case would for the present purposes be unexceptionable
First then as to the privileges of the Assembly
The Assembly relies for purpose on cl
3 of article 194 of the Constitution
The first three clauses of that article may at this stage be set out
article 1941 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature there shall be freedom of speech in  he Legislature of every State
2 No member of the Legislature of a State shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report paper votes or proceedings
3 In other respects the powers privileges and immunities of a House of the Legislature of a State and of the members and the committees of a House of such Legislature shall be such as may from time to time be defined by the Legislature by law and until 507 so defined shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of this Constitution
Article 105 contains identical provisions in relation to the Central Legislature
It is not in dispute that the Uttar Pradesh Legislature has not made any law defining the powers privileges and immunities of its two Houses
The Assembly therefore claims that It has those privileges which the House of Commons in England had on January 25 1950
I would like at this stage to say a few general words about powers privileges and immunities of the House of Commons or its members
First I wish to note that it is not necessary for our purposes to make a distinction between privileges  powers and immunities
They are no doubt different in the matter of their respective contents but perhaps in no otherwise
Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege its right to punish one for contempt may be more properly described as its power while the right that no member shall be liable for anything said in the House may be really an immunity
All these rights are however created by one law and judged by the same standard
I shall for the sake of convenience describe them all as privileges
Next I note that this case is concerned with privileges of the House of Commons alone and not with those of its members and its committees
I stress however that the privileges of the latter two are in no respect different from those of the former except as to their content
The nature of the privileges of the House of Commons can be best discussed by referring to May s Parliamentary Practice which is an acknowledged work of authority on matters concern in the English Parliament
It may help to observe here that for a long time now there is no dispute as to the nature of the recognised privileges of the Commons
I start to explain the nature of the privileges by pointing out the distinction between them and the functions of the House
Thus the financial powers of the House of Commons to initiate taxation legislation is often described as its privilege
This however is not the kind of privilege of the House of Commons to which cl
3 of article 194 refers
Privileges of the House of Commons have a technical meaning in English Parliamentary Law and the article uses the word in that sense only
That technical sense has been de scribed in these words Certain fundamental 508 rights of each House which are generally accepted as necessary for the exercise of its constitutional functions
1 A point I would like to stress now is that it is of the essence of the nature of the privileges that they are ancillary to the main functions of the House of Commons
Another thing which I wish to observe at this stage is that sone privileges rest solely upon the law and custom of Parliament while others have been defined by statute
Upon these grounds alone all privileges whatever are founded 2
In this case we shall be concerned with the former kind of privilege only
The point to note is that this variety of privilege derives its authority from the law and custom of Parliament
This law has been given the name of Lex Parliamenti
It owes its origin to the custom of Parliament
It is therefore different from the common law of England which though also based on custom is based on a separate set of custom namely that which prevails in the rest of the realm
This difference in the origin had given rise to serious disputes between Parliament and the courts of law but they have been settled there for many years now and except a dispute as to theory the recurrence of any practical dispute is not considered a possibility
So Lord Coleridge CJ said in Bradlaugh vs Gossett 
Whether in all cases and under all circumstances the Houses are the sole judges of their own privileges in the sense that a resolution of either House on the subject has the same effect for a court of law as an Act of Parliament is a question which it is not now necessary to determine
No doubt to allow any review of parliamentary privilege by a court of law may lead has led to very grave complications and might in many supposable cases end in the privileges of the Commons being determined by the Lords
But to hold the resolutions of either House absolutely beyond inquiry in a court of law may land us in conclusions not free from grave complications too
It is enough for me to say that it seems to me that in theory the question is extremely hard to solve in practice it is not very important and at any rate does not now arise
 This passage should suffice to illustrate the nature of the dispute
It will not be profitable at all and indeed I think it will be mischievous  to enter upon a discussion of that dispute for it will only serve to make turbid by raking up impurities which have settled down a stream which has run clear now for years
Furthermore 1 May  Parliamentary Practice 16th ed
p 42
3  275
2 lbid p 44 509 that dispute can never arise in this country for here it is undoubtedly for the courts to interpret the Constitution and therefore article 1943
It follows that when a question arises in this country under that article as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution that question must be settled and settled only by the courts of law
There is no scope of the dreaded dualism appearing here that is courts entering into a controversy with a House of a Legislature as to what its privileges are
I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case using that word in the sense of rights ancillary to the main function of the legislature
The privilege which I take up first is the power to commit for contempt
It is not disputed that the House of Commons has this power
All the decided cases and text books speak of such power
The power of commitment is truly described as the  keystone of parliamentary privilege  without it the privileges of Parliament could not have become self subsistent but if they had not lapsed would have survived on sufferance
1 In Burdett V Abbott 2 Lord Ellenborough CJ observed Could it be expected  that the Speaker with his mace should be under the necessity of going before a grand jury to prefer a bill of indictment for the insult offered to the House  They certainly must have the power of self vindication and self protection in their own hands 
The possession of this power by the House of Commons is therefore undoubted
It would help to appreciate the nature of the power to commit for contempt to compare it with breach of privlege which itself may amount to contempt
Thus the publication of the proceedings of the House of Commons against its orders is a breach of its privilege and amounts to contempt
All contempts however are not breaches of privilege
Offences against the dignity or authority of the House though called breaches of privilege are more properly distinguished as contempts
Committing to prison for contempts is itself a privilege of the House of Commons whether the contempt is committed by a direct breach of its privilege or by offending its 1 May P 90
2   559
510 dignity or authority1 The functions privileges and disciplinary powers of a legislative body are thus closely connected
The privileges are the necessary complement of the functions and the disciplinary powers of the privileges
1 I may add that it is not in dispute that power to commit for contempt may be exercised not only against a member of the House but against an outsider as well
3 It was contended on behalf of the High Court that the power of the House of Commons to commit for contempt was not con ferred by cl
3 of article 194 on the Houses of a State Legislature because our Constitution has to be read along with its basic scheme providing for a division of powers and the power to commit to prison for contempt being in essence a judicial power can under our Constitution be possessed only by a judicial body namely the courts and not by a legislative body like the Assembly
It was therefore contended that article 1943 could not be read as conferring judicial powers possessed by the House of Commons in England as one of its privileges on a legislative body and so the Assembly did not possess it
This contention of the High Court is in my view completely without foundation both principle and authority are against it
This Court has on earlier occasions observed that the principle of separation of powers is not an essential part of our Constitution  see for example In re
Delhi Laws Act1
Again the Constitution is of course supreme and even if it was based on the principle of separation of powers there was nothing to prevent the Constitution makers if they so liked from conferring judicial powers on a legislative body
If they did so it could not be said that the provision concerning it was bad as our Constitution was based on a division of powers
Such a contention would of course be absurd
The only question therefore is whether our Constitution makers have conferred the power to commit on the Legislatures
The question is not whether they had the power to do so for there was no limit to their powers
What the Constitution makers had done can however be ascertained only from the words used by them in the Constitution that they made
If those words are plain effect must be given to them irrespective of whether our Constitution is based on a division of power or not
That takes me to the language used in cl
3 of article 194
The words there appearing are the powers privileges and immunities of a House shall 1 May p 43
2 lbid
3 Ibid p 91 4  883
511 be those of the House of Commons
I cannot imagine more plain language than this
That language can only have one meaning and that is that it was intended to confer on the State Legislatures the powers privileges and immunities which the House of Commons in England had
There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of division of powers
So much as to the principle regarding the application of the theory of division of powers
This question is further completely concluded by the decision of this Court in Pt
M section M Sharma vs Shri Sri Krishna Sinha1
I will have to refer to this case in some detail later
There Das CJ delivered the majority judgment of the constitution bench consisting of five Judges and Subba Rao J delivered his own dissenting opinion
Das CJ proceeded on the basis that the Houses of a State Legislature had the power to commit for contempt
It was therefore held that there was nothing in our Constitution to prevent a legislative body from possessing judicial powers
On this point Subba Rao J expressed no dissent
Further the Judicial Committee in England has in two cases held that under provisions substantially similar to those of article 1943 of our Constitution the power of the House of Commons to commit for contempt had been conferred on certain legislative bodies of some of the British Colonies
In the Speaker of the Legislative Assembly of Victoria vs Glass1 it was held that a statute stating The Legislative Council of Victoria shall hold enjoy and exercise such and the like privileges immunities and powers as were held enjoyed and exercised by the Commons House of Parliament of Great Britain and Ireland conferred on the Houses of the Legislature of the Australian Colony of Victoria the judicial power to commit for contempt
In Queen vs Richards1 it was held that section 49 of the Commonwealth of Australia Constitution Act 1901 which provided that the powers privileges and immunities of the Senate and the House of Representatives  shall be such as are declared by the Parliament and until declared shall be those of the Commons House of Parliament of the United Kingdom  conferred on the Houses judicial powers of committing a person to prison for contempt
It was observed by Dixon CJ 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 SCR 806
2 3  512 that they were regarded by many authorities as proper incidents of the Legislative function notwithstanding the fact that considered more theoretically perhaps one might even say scientifically they belong to the judicial sphere
But our decision is based upon the ground that a general view of the Constitution and the separation of powers is not a sufficient reason for giving to these words which appear to us to be so clear a restrictive or secondary meaning which they do not properly bear
1 The similarity in the language of the provisions in the Australian Constitution and our Constitution is striking
It was said however that they were not the same for under section 49 the Australian Houses might by resolution declare the privileges whereas in our case the privileges had to be defined by law and that in Australia there were no fundamental rights
I Confess I do not follow this argument at all
The guestion is not how the privileges are declared in Australia or what effect fundamental rights have on privileges but as to the meaning of the words which in the two statutes are identical
In Richard s case1 an application was made to the Judicial Committee for leave to appeal from the judgment of Dixon CJ but such leave was refused Viscount Simonds observing that the judgment of the Australian High Court is unimpeachable Queen vs Richards1
Reference may also be made to Fielding vs Thomas1 for the interpretation of a similar provision conferring the privileges of the Commons on the Legislature of Nova Scotia in Canada
It would therefore appear that article 1943 conferred on the Assembly the power to commit for contempt and it possessed that power
The next question is as to the privilege to commit by a general warrant
There is no dispute in England that if the House of Commons commits by a general warrant without stating the facts which constitute the contempt then the courts will not review that order
It was however said on behalf of the High Court that this power of the English House of Commons was not one of its privileges but it was possessed by that House because it was a superior court and therefore that power not being a privilege has not been conferred on the State Legislatures by article 1943 of our Constitution
It is not claimed by the Assembly that it is a superior court and has therefore a power to commit for contempt by a general warrant
I would find nothing to justify such a claim if it had been 1   2  3  171
4 5 See Burdett vs Abbot   May s Parliamentary Practice 16th ed
p 173 513 made
This takes me to the question is the power to commit by a general warrant one of the privileges of the House of Commons or is it something which under the common law of England that House possessed because it was a superior court  I find no authority to support the contention that the power to commit by a general warrant with the consequent deprivation of the jurisdiction of the Courts of law in respect of that committal is something which the House of Commons had because it was a superior court
First I do not think that the House of Commons was itself ever a court
The history of that House does not support such a contention
Before proceeding further I think it necessary to observe that we are concerned with the privileges of the House of Commons as a separate body though no doubt a constituent part of the British Parliament which consists also of the King and the House of Lords
The privileges however with which we are concerned are those which the House of Commons claims for itself alone as an independent body and as apart from those possessed by the House of Lords
Indeed it is clear that the privileges of the two Houses are not the same May Ch
It may be that in the early days of English history the Parliament was a court
The House of Commons however does not seem to have been a part of this Court
In medieval times the legal conception was that the King was the source of all things justice was considered to flow from him and therefore the court of justice was attached to the King
The King s Court thus was a court of law and that is the origin of what is called the High Court of Parliament
The history of the High Court of Parliament has been summarised in Potter s Outlines of English Legal History 1958 ed and may be set out as follows  The King s Council under its older title of Curia Regis was the mother of the Common law courts but still retained some judicial functions even after the common law courts had been well established
p 78
Later however in the 14th and 15th centuries it came to be held that appeals from the King s Bench lay to the Parliament and not to the Council
But Parliament had a great deal of work to do and could find little time for hearing petitions or even for hearing rules of Error from the King s Bench and this jurisdiction fell into abeyance in the 15th century
It would appear however that of this Parliament Commons were no part
In 1485 it was held by all the Judges that the jurisdiction in Error belonged exclusively to the House of Lords and not to the whole Parliament
Professor Holdsworth states in explanation of this fact that it was not quite forgotten that the jurisdiction was to the King and his Council in Parliament whereas the Commons were 514 never part of his Council the King in his Council in Parliament meaning only the King and the House of Lords p 95
It is also interesting to point out that when the Commons deliberated apart they sat in the chapter house or the refectory of the Abbot of Westminster and they continued their sittings in that place after their final separation May p 12
The separation referred to is the separation between the House of Lords and the House of Commons
It may also be pointed out that when it is said that laws in England are made by the King in Parliament what happens is that the Commons go to the Bar of the House of Lords where the King either in person or through someone holding a commission from him assents to an Act
All this would show that the House of Commons when it sits as a separate body it does not sit in Parliament
So sitting it is not the High Court of Parliament
I wish here to emphasise that we are in this case concerned with the privileges of the House of Commons functioning as a separate body that is not sitting in Parliament
May observes at p 90 Whether the House of Commons be in law a court of record it would be difficult to determine In Anson s Law of the Constitution 5th ed
Vol 1 at p 197 it has been stated that Whether or not the House of Commons is a court of record not only has it the same power of protecting itself from insult by commitment for contempt but the Superior Courts of Law have dealt with it in this matter as they would with one another and have accepted as conclusive its statement that a contempt has been committed without asking What that contempt may have been
 I think in this state of the authorities it would at least be hazardous to hold that the House of Commons was a court of record
If it was not it cannot be said to have possessed the power to commit for its contempt by a general warrant as a court of record
I now proceed to state how this right of the House of Commons to commit by a general warrant has been dealt with by authoritative textbook writers in England
At p 173 after having discussed the tussle between the Commons and the Courts in regard to the privileges of the former and having stated that in theory there is no way of resolving the real point at issue should a conflict between the two arise
May observes In practice however there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect
 He then adds The courts admit  3 that the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts
4 That a committal for contempt by either House is in practice within its exclusive jurisdiction since the 515 facts constituting the alleged contempt need not be stated on the warrant of committal
 So May treats the right of the House of Commons to commit by a general warrant as one of its privileges and not something to which it is entitled under the common law as of right as a Court of Record
In Cases on Constitutional Law by Keir and Lawson 4th ed p 126 it is stated that among the undoubted privileges of the House of Commons is the power of executing decisions on matters of privilege by committing members of Parliament or any other individuals to imprisonment for contempt of the House
This is exemplified in the case of Sheriff of Middlesex
 That is a case where the House of Commons had committed the Sheriff of Middlesex for contempt by a general warrant the Sheriff having in breach of the orders of the House carried out an order of the King s Bench Division which he was bound to do and that Court held that it had no jurisdiction to go into the question of the legality of the committal by the House  see Sheriff of Middlesex1
In Halsbury s Laws of England Vol
28 p 467 it is stated that the Courts of law will not enquire into the reasons for which a person is adjudged guilty of contempt and committed by either House by a warrant which does not state the causes of his a rest
This observation is made in dealing with the conflict between the House of Commons and the courts concerning the privileges of the former and obviously treats the power to issue a general warrant as a matter of the privilege of the House
Lastly in Dicey s Constitutional Law 10th ed at p 58 in the footnote it is stated
Parliamentary privilege has from the nature of things never been the subject of precise legal definition
One or two points are worth notice as being clearly established
1 Either House of Parliament may commit for contempt and the courts will not go behind the committal and enquire into the facts constituting the alleged contempt provided that the cause of the contempt is not stated
 I thus find that writers of undoubted authority have treated this power to commit by a general warrant with the consequent deprivation of the court s jurisdiction to adjudicate on the legality of the imprisonment as a matter of privilege of the House and not as a right possessed by it as a superior court
I now proceed to refer to recent decisions of the Judicial Committee which a also put the right of the House
of Commons to com 1  516 mit by a general warrant on the ground of privilege
The first case which I will consider is Glass s1 case
There the Legislative Assembly of the Colony of Victoria by a general warrant committed Glass to prison for contempt and the matter was brought before the court on a habeas corpus petition
I have earlier stated that under certain statutes the Assembly claimed the Same privileges which the House of Commons possessed
The Supreme Court of Victoria held in favour of Glass
The matter was then taken to the Judicial Committee andit appears to have been argued there that the privilege is the privilege of committing for contempt merely that the judging of contempt without appeal and the power of committing by a general Warrant are mere incidents or accidents applicable to this Country and not transferred to the Colony
 The words this Country referred to England
Lord Cairns rejected this argument with the following observations The ingredients of judging the contempt and committing by a general Warrant are perhaps the most important ingredients in the privileges which the House of Commons in this Country possesses and it would be strange indeed if under a power to transfer the whole of the privileges and powers of the House of Commons that which would only be a part and a comparatively insignificant part of this privilege and power were transferred p 573
He also said p 572 Beyond all doubt one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt and incidental to that privilege it has as has already been stated been well established in this Country that the House of Commons have the right to be the judges themselves of what is contempt and to commit for that contempt by a Warrant stating that the commitment is for contempt of the House generally without specifying what the character of the contempt is
It would therefore almost of necessity follow that the Legislature of the Colony having been permitted to carry over to the Colony the privileges immunities and powers of the House of Commons and having in terms carried over all the privileges and powers exercised by the House of Commons at the date of the Statute there was carried over to the Legislative Assembly of the Colony the privilege or power of the House of Commons connected with contempt the privilege or power namely of committing for contempt of judging itself of what is contempt and of committing for contempt by a Warrant stating generally that a contempt had taken place
 In Richard s case 2 the power to commit by a general warrant was considered as a privilege of the House and the observations of Lord Cairns 1  2  517 in Glass s1 case were cited in support of that view
As I have already said this view was upheld by the Judicial Committee  Queen vs Richard 2
It is of some interest to note that Dixon CJ was of the opinion as I have earlier shown that the power to commit was scientifically more properly a judicial power but nonetheless he found that it was a privilege technically so called of the House of Commons and so transferred to the Australian Houses by section 49 of the Australian Constitution Act of 1901
It is also necessary to state here that this case was of the year 1955 and shows that the view then held was that the right to commit by a general warrant was a privilege of the House
I am pointing out this only because it has been suggested that even if it was a privilege
it had been lost by desuetude
These cases show that that is not so
Fielding vs Thomas also takes the same view
It was said that the decisions of the Judicial Committee were not binding on us
That may be so
But then it has not been shown that they are wrong and therefore they are of value at least as persuasive authorities
The fact that the decisions of the Judicial Committee are not binding on us as judgments of a superior court is however to no purpose
The real question for our decision is whether the House of Commons possessed a certain privilege
We may either have to take judicial notice of that privilege or decide its existence as a matter of foreign law
It is unnecessary to decide which is the correct view
If the former under section 57 of the Evidence Act a reference to the authorised law reports of England would be legitimate and if the latter then again under section 38 of that Act a reference to these reports would be justified
So in either case we are entitled to look at these reports and since they contain decisions of one of the highest Courts in England we are not entitled to say that what they call a privilege of the House of Commons of their country is not a privilege unless other equally high authority taking a contrary view is forthcoming
I now come to some of the English cases on which the proposition that the right to commit by a general warrant is not a matter of privilege of the House of Commons but a right which it possessed as a superior court is as I understood the argument of learned advocate for the High Court based
I will take the cases in order of date
It will not be necessary to refer to the facts of these cases and it should suffice to state that each of them dealt with the right of the House of Commons to commit by a general warrant
First there is Burdett vs Abbot4In this case in the first court judg 1   2  3 4  518 ments were delivered by Ellenborough CJ and Baylay J With regard to this case Anson in his book at p 189 says It is noticeable that in the case of Burdett vs Abbot while Bayley J rests the claim of the House to commit on its parity of position with the Courts of Judicature
Lord Ellenborough CJ rests his decision on the broader ground of expediency and the necessity of such a power for the maintenance of the dignity of the House
 Ellenborough CJ therefore according to Anson clearly does not take the view that the House of Commons is a court and all that Bay ley J does according to him is to put the House of Commons in parity with a Superior Court
If the House of Commons was a court there of course was no question of putting it in parity with one
There was an appeal from this judgment to the House of Lords and in that appeal after the close of the arguments Lord Eldon LC referred the following question to the Judges for their advice 16 Whether if the Court of Common Pleas having adjudged an act to be a contempt of Court had committed for the contempt under a warrant stating such adjudication generally without the particular circumstances and the matter were brought before the Court of King s Bench by return to a writ of habeas cot pus
the return setting forth the warrant stating such adjudication of contempt generally whether in that case the Court of King s Bench would discharge the prisoner because the particular facts and circumstances out of which the contempt arose were not set forth in the warrant Burdett vs Abbot1
The Judges answered the question in the negative
Upon that Lord Eldon delivered his judgment with which the other members of the Court agreed stating that the House of Commons had the power to commit by a general warrant
I am unable to hold that this case shows that Lord Eldon came to that conclusion because the House of Commons was a superior court
It seems to me that Lord Eldon thought that the House of Commons should be treated the same way as one superior court treated another and wanted to find out how the courts treated each other
I shall later show that this is the view which has been taken of Lord Eldon s decision in other cases
But I will now mention that if Lord Eldon had held that the House of Commons was a court a constitutional lawyer of Anson s eminence would not have put the matter in the way that I have just read from his work
Then I come to the case of Stockdale vs Hansard2
That case was heard by Lord Denman CJ Littledale J Patteson J and Coleridge J Lord Denman said p 1168 1  2112 E R 11 12
519 Before I finally take leave of this head of the argument I will dispose of the notion that the House of Commons is a separate Court having exclusive jurisdiction over the subject matter on which for that reason its adjudication must be final
The argument placed the House herein on a level with the Spiritual Court and the Court of Admiralty
Adopting this analogy it appears to me to destroy the defence attempted to the present action  we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons
It is contended that they can bring it within their jurisdiction by declaring it so
To this claim as arising from their privileges I have already stated my answer it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it Clearly Lord Denman did not proceed on the basis that the Commons was a court
In fact he refers to the right as arising from this privilege
 Then I find Littledale J observing at p 1174 But this proceeding in the House of Commons does not arise on adverse claims there are no proceedings in the Court there is no Judge to decide between the litigant parties but it is the House of Commons who are the only parties making a declaration of what they say belongs to them So Littledale J also did not consider the Commons as a court
Then came Patteson J who stated at p 1185 The House of Commons by itself is not the court of Parliament
Then again at p 1185 he observes I deny that mere resolution of the House of Lords  would be binding upon the Courts of Law  much less can a resolution of the House of Commons which is not a Court of Judicature for the decision of any question either of law or fact between litigant parties except in regard to the election of its members be binding upon the Courts of Law Lastly I come to Coleridge J
He stated at p 1196 But it is said that this and all other Courts of Law are inferior in dignity to the House of Commons and that therefore it is impossible for us to review its decision
This argument appears to me founded on a misunderstanding of several particulars first in what sense it is that this Court is inferior to the House of Commons next in what sense the House is a Court at all
 SCI65 8 520 Then at p 1196 he stated  In truth the House is not a Court of Law at all in the sense in which that term can alone be properly applied here neither originally nor by appeal can it decide a matter in litigation between two parties it has no means of doing so it claims no such power powers of enquiry and of accusation it has but it decides nothing judicially except where it is itself a party in the case of contempts
As to them no question of decree arises between Courts The observations of Coleridge J are of special significance for the reasons hereafter to appear
It is obvious that neither Patteson J nor Coleridge J thought that the House of Commons was a Court or possessed any powers as such
Next in order of date is the case of the Sheriff of Middlesex1
Lord Denman CJ 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 vs Abbot  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 vs 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   521 what any Court much more what either House of Parliament acting on great legal authority takes upon it to pronounce a contempt is so
 This observation would support what I have said about the judgment of Lord Eldon in Burdett vs Abbot1
Denman CJ did not think that Lord Eldon considered the House of Commons to be a Court for he himself found it unnecessary to discuss that question
The basis why he thought that the House of Commons must possess the right to commit by a general warrant was one of expediency and of confidence in a body of that stature
Coleridge J observes at p 427 It appears by precedents that the House of Commons have been long in the habit of shaping their warrants in that manner
Their right to adjudicate in this general form in cases of contempt is not founded on privilege but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment
Lord Eldon puts the case in this manner in Burdett vs Abbot 5 Dow 165 199
 Great reliance is placed on this observation of Coleridge J but I think that is due to a misconception
Coleridge J at p 427 expressly affirms all that had been said by him and the other Judges in Stockdale vs Hansard2
As I have earlier shown he had there said that in truth the House is not a Court of Law at all Therefore when he said that the right to adjudicate in the general form was not founded on privilege whatever he might have meant he did not mean that it was founded on the House of Commons being a court
I think what he meant was that it was a right which the House of Commons had to possess in order to discharge its duties properly and therefore not something conceded to it as a sign of honour and respect
He might also have meant that the power was not something peculiar to the House as it was also possessed by the courts for the same reason of expediency and therefore it was not a privilege a term which has been used in the sense of something which the Parliament possessed and which exceeded those possessed by other bodies or individuals  Cf
May 42
Then comes the case of Howard vs Gossett3
It will be enough to refer to the judgment of the Court of Exchequer Chamber in appeal which begins at p 158
That judgment was delivered by Parke B who observed at p 171 1  2 112 ER 1112
3  522 lm15 the warrant of the Speaker is in our opinion valid so as to be a protection to the officer of the House upon a principle which as it applies to the process and officers of every Superior Court must surely be applicable to those of the High Court of Parliament and each branch ofit
 Here again the House is treated as being entitled to the same respect as a superior court but it is not being said that the House is a superior court
Lastly I come to Bradlaugh vs Gossett1 in which at p 285 Stephen J said The House of Commons is not a Court of justice
 I am unable to see how these authorities can be said to hold that the power of the House of Commons to commit by a general warrant is possessed by it because it is a superior court
It was then said that even if the right to commit by a general warrant cannot be said to have been possessed by the House of Commons because it was superior court the observations in the cases on the subject including those to which I have already referred would establish that the right springs from some rule of comity of courts or of presumptive evidence or from an agreement between the courts of law and the House or lastly from some concession made by the former to the latter
I at once observe that these cases do not support the contention and no text book has taken the view they do or that the right is anything but a privilege
The contention further seems to me to be clearly fallacious and overlooks the basic nature of a privilege of the House of Commons
I have earlier stated the nature of the privilege but I will repeat it here
All privileges of the House of Commons are based on law
That law is known as lex Parliamenti
Hence privileges are matters which the House of Commons possesses as of right
In Stockdale vs Hansard2 all the Judges held that the rights of the House of Commons are based on lex Parliamenti and that law like any other law is a law of the land which the courts are entitled to administer
Now if the privilege of committing by a general warrant is a right enforceable in law which belongs to the House of Commons it cannot be a matter controlled by the rule of comity of courts
Comity of courts is only a self imposed restraint
It is something which the court on its own chooses not to do
It is really not a rule of law at all
It creates no enforceable right
A right  to the privilege cannot be based on it
Besides there is no question of 1 1884 2 12
523 comity of courts unless there are two courts each extending civility or consideration to the other
Here we have the House of Commons and the courts of law
The former is not a court and the latter needs no civility or consideration from the House for its proper functioning
Here there is no scope of applying any principle of comity of courts
Next as to the privilege being really nothing more than a rule of presumption that a general warrant of the House of Commons imprisons a person legally so that the question of the legality of the committal need not be examined by a court of law I suppose it is said that this is a presumption which the law requires to be made
If it is not so then the right of the House would depend on the indulgence of the judge concerned and therefore be no right at all
That cannot be nor is it said that it is so
What then  If it is a presumption of law what is the law on which the presumption is based  None has been pointed out and so far as I know none exists unless it be lex Parliamenti
Once that is said it really becomes a matter of privilege for the lex Parliamenti would not create the presumption except for establishing a privilege
A right created by lex Parliamenti is a privilege
This I have earlier said in discussing the nature of privileges
Lastly has the right its origin in agreement between the House of Commons and the courts of law or in a concession granted by the latter to the former  This is a novel argument
I have not known of any instance where a right and therefore the law on which it is based is created by an agreement with courts
Courts do not create laws at all least of all by agreement they ascertain them and administer them
For the same reason courts cannot create a law by concession
A court has no right to concede a question of law unless the law already exists
I find it impossible to imagine that any parliamentary privilege which creates an enforceable right could be brought into existence by agreement with courts or by a concession made by them
Before I part with the present topic I will take the liberty of observing that it is not for us to start new ideas about the privileges of the House of Commons ideas which had not ever been imagined in England
Our job is not to start an innovation as to privileges by our own researches
It would be unsafe to base these novel ideas on odd observations in the judgments in the English cases torn out of their context and in disregard of the purpose for which they were made
What I have quoted from these cases will at least make one pause and think that these cases can furnish no sure foundation for a novel theory as to the right of the House of 524 Commons to commit by a general warrant
Researches into old English history are wholly out of place in the present context and what is more are likely to lead to misconceptions
To base our conclusion as to the privileges on researches into antiquities will furthermore be an erroneous procedure for the question is what the privileges of the House of Commons were recognised to be in 1950
Researches into the period when these privileges were taking shape can afford no answer to their contents and nature in 1950
The question can be answered only by ascertaining whether the right under discussion was treated as a privilege of the House of Commons by authoritative opinion in England in the years preceding 1950
I then come to the conclusion that the right to commit for contempt by a general warrant with the consequent deprivation of jurisdiction of the courts of law to enquire into that committal is a privilege of the House of Commons
That privilege is in my view for the reasons earlier stated possessed by the Uttar Pradesh Assembly by reason of article 1943 of the Constitution
It is then said that even so that privilege of the Assembly can be exercised only subject to the fundamental rights of a citizen guaranteed by the Constitution
That takes me to Sharma s case1 As I read the judgment of the majority in that case they seem to me to hold that the privileges of the House of Commons which were conferred on the Houses of a State Legislature by article 1943 take precedence over fundamental rights
The facts were these
A House of the Bihar Legislature which also had made no law defining its privileges under article 1943 had directed certain parts of its proceedings to be expunged but notwithstanding this the petitioner published a full account of the proceedings in his paper including what was expunged
A notice was thereupon issued to him by the House to show cause why steps should not be taken against him for breach of privileges of the House
The privilege claimed in that case was the right to prohibit publication of its proceedings
The petitioner the Editor of the paper then filed a petition under article 32 of the Constitution stating that the privilege did not control his fundamental right of freedom of speech under article 19 1 a and that therefore the House had no right to take proceedings against him
He also disputed that the House of Commons had the privilege which the Bihar Assembly claimed
The majority held that the House possessed the privilege to prohibit the publication of its proceedings and that privilege was not subject to the fundamental right of a citizen under article 1 1959 Supp 1 SCR 806
525 19 1a
Subba Rao J took a dissentient view and held that fundamental rights take precedence over privileges and also that the House did not possess the privilege of prohibiting the publication of its proceedings
With the latter question we are not concerned in the present case
In the result Sharma s1 petition was dismissed
On behalf of the High Court two points have been taken in regard to this case
It was first said that the majority judgment required reconsideration and then it was said that in any event that judgment only held that the privilege there claimed took precedence over the fundamental right of the freedom of speech and not that any other privilege took precedence over fundamental rights
I am unable to accept either of these contentions
On behalf of the Assembly it has been pointed out that in a reference under article 143 we have no jurisdiction to set aside an earlier decision of this Court for we have to give our answers to the questions referred on the law as it stands and a decision of this Court so long as it stands of course lays down the law
I am unable to say that this contention is idle
It was said on behalf of the High Court that in In re
Delhi Laws Act1 a question arose whether a decision of the Federal Court which under our Constitution has the same authority as our decisions was right
It may be argued that this case does not help for the question posed itself required the reconsideration of the earlier judgment
I do not propose to discuss this matter further for I do not feel So strongly in favour of the contention of the Assembly that I should differ from the view of my learned brothers on this question
I feel no doubt however that the majority judgment in Sharma s case1 was perfectly correct when it held that privileges were not subject to fundamental rights
I have earlier set out the first three clauses of article 194
The first clause was expressly made subject to the provisions of the Constitution whatever the provisions contemplated were while the third clause was not made so subject
Both the majority and the minority judgments are agreed that the third clause cannot therefore be read as if it had been expressly made subject to the provisions of the Constitu tion
For myself I do not think that any other reading is possible
Clause 3 of article 194 thus not having been expressly made subject to the other provisions of the Constitution how is a conflict between it and any other provisions of the Constitution which may be found to exist to be resolved  The majority held that the 1 1959 Supp 1
SCR 806
2  526 principle of harmonious construction has to be applied for reconciling the two and article 1943 being a special provision must take precedence over the fundamental right mentioned in article 191 a which was a general provision p 860
Though Subba Rao J said that there was no inherent inconsistency between article 19 1 a and article 1943 he nonetheless applied the rule of harmonious construction
He felt that since the legislature had a wide range of powers and privileges and those privileges can be exercised without infringing the fundamental rights the privilege should yield to the fundamental right
This construction he thought gave full effect to both the articles pp 880 1
With great respect to the learned Judge I find it difficult to follow how this interpretation produced the result of both the articles having effect and thus achieving a harmonious construction
Ex facie there is no conflict between articles 1943 and 19 1 a for they deal with different matters
The former says that the State Legislatures shall have the powers and privileges of the English House of Commons while article 19 1 a states that every citizen shall have full freedom of speech
The conflict however comes to the surface when we consider the particular privileges claimed under article 1943
When article 1943 says that the State Legislatures shall have certain privileges it really incorporates those privileges in itself
Therefore the proper reading of article 1943 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 the conflict between articles 194 3 and 19 1 a can be seen one restricts a right to publish something while the other says all things may be published
I believe that is how the articles were read in Sharma s case1 by all the Judges
If they had not done that there would have been no question of a conflict between the two provisions or of reconciling them
Now if article 19 1 a is to have precedence then a citizen has full liberty to publish whatever he likes he can publish the proceedings in the House even though the House prohibited their publication
The result of that reading however is to wipe out that part of article 1943 which said that the State Legislatures shall have power and privilege to prohibit publication of their proceedings
That can hardly be described as harmonious reading of the provisions a reading which gives effect to both provisions
It is a reading which gives effect to one of the provisions and treats the other as if it did not exist
1 1959 Supp 1 SCR 806
527 It is true that if article 191 a prevailed it would not wipe out all the other privileges of the House of Commons which had to be read in article 1943
Thus the right of the House to exclude strangers remained intact even if the right to prohibit publication of proceedings was destroyed by article 19 1 a
But this is to no purpose as there never was any conflict between the right to exclude strangers and the freedom of speech and no question of reconciling the two by the rule of harmonious construction arose
When one part of a provision alone is in conflict with another provision the two are not reconciled by wiping out of the statute book the conflicting part and saying that the two provisions have thereby been harmonised because after such deletion the rest of the first and the whole of the second operate
We are concerned with harmonising two conflicting provisions by giving both the best effect possible and that is not done by cutting the gordian knot by removing the conflicting part out of the statute
I agree that in view of the conflict between article 1943 and article 1 9  1  a which arises in the manner earlier stated it has to be resolved by harmonious construction
As I understand the principle it is this
When the Legislature here the Constitutionmakers enacted both the provisions they intended both to have effect
If per chance it so happens that both cannot have full effect then the intention of the legislature would be best served by giving the provisions that interpretation which would have the effect of giving both of them the most efficacy
This I believe is the principle behind the rule of harmonious construction
Applying that rule to Sharma s case1 if the privilege claimed by the Legislature under article 1943 of prohibiting publication of proceedings was given full effect article 19 1 a would not be wiped out of the Constitution completely the freedom of speech guaranteed by the last mentioned article would remain in force in respect of other matters
If on the contrary article 19 1 a was to have full effect that is to say a citizen was to have liberty to say and publish anything he liked then that part of article 1943 which says that the House can prohibit publication of its proceedings is completely destroyed it is as if it had never been put in theConstitution
That to my mind can hardly have been intended or be the proper reading of the Constitution
I would for these reasons say that the rule of harmonious construction supports the interpretation arrived at by the majority in Sharma s case1
Subba Rao J gave another reason why he thought that funda mental rights should have precedence over the privileges of the 1 1959 Supp 1 SCR 806 528 Legislature and on this also learned counsel for the High Court relied in the present case
Subba Rao J said that that part of article 1943 under which the State Legislature claimed the same privilege as those of the House of Commons in England which has been called the second part of this clause was obviously a transitory provision because it was to have effect until the Legislature made a law defining the privileges as the Constitution makers must have intended it to do
He added that if and when the Legislature made that law that would be subject to the fundamental rights and it would be strange if provisions which were transitory were read as being free of those rights
The majority in Sharma s case1 no doubt said without any discussion that the law made under article 1943 would be subject to all fundamental rights
Learned advocate for the Assembly however contended before us that that view was not justified
In the present case it seems to me it makes no difference whatever view is taken
Assume that the law made by a Legislature defining its privileges has to be subject to fundamental rights
But that will be so only because article 13 says so
Really the law made under article 1943 is not to be read as subject to fundamental rights the position is that if that law is in conflict with any fundamental right it is as good as not made at all
That is the effect of article 13
The argument that since the laws made under article 1943 are subject to fundamental rights so must the privileges conferred by the second part of cl
3 be is therefore based on a misconception
Article 13 makes a law bad if it conflicts with fundamental rights
It cannot be argued that since article 13 might make laws made under cl
3 of article 194 void the privileges conferred by the second part of that clause must also be void
Article 13 has no application to a provision in the Constitution itself
It governs only the laws made by a State Legislature which article 1943 is not
Therefore I do not see why it must be held that because a law defining privileges if made would be void if in conflict with fundamental rights the privileges incorporated in article 1943 1 have already said that that is how the second Dart of article 1943 has to be read must also have been intended to be subject to the fundamental rights
If such was the intention cl
3 would have started with a provision that it would be subject to the Constitution
The fact that in cl
1  the words subject to the provisions of this Constitution  occur while they are omitted from cl
3 is a strong indication that the latter clause was not intended to be so subject
Furthermore that could not have been the intention because then the privilege with which the present case is concerned namely to commit for contempt by a general 1
1959 Supp 1 SCR 806 529 warrant without the committal being subjected to the review of the court would be wiped out of the Constitution for the fundamental right required that the legality of every deprivation of liberty would be examinable in courts
It was also said that fundamental rights are transcendental
I do not know what is meant by that
If they are transcendental that must have been because the Constitution made them so
The Constitution no doubt by article 13 makes laws made by the Legislatures subject to fundamental rights but I do not know nor has it been pointed out to us in what other way the Constitution makes the fundamental rights transcendental
We are not entitled to read into the Constitution things which are not there
We are certainly not entitled to say that a specific provision in the Constitution is to have no effect only because it is in conflict with fundamental rights or because the latter are from their nature though not expressly made so transcendental
Then as to the second part of article 1943 being transitory that depends on what the intention of the Constitution makers was
No doubt it was provided that when the law was made by the Legislature under the first part of article 1943 the privileges of the House of Commons enjoyed under the latter part of that provision would cease to be available
But I do not see that it follows from this that the second part was transitory
There is nothing to show that the Constitution makers intended that the Legislature should make its own law defining its privileges
The Constitution makers had before them when they made the Constitution in 1950 more or less similar provisions in the Australian Constitution Act 1901 and they were aware that during fifty years laws had not been made in Australia defining the privileges of the Houses of the Legislatures there but the Houses had been content to carry on with the privileges of the House of Commons conferred on them by their Constitution
With this example before them I have no rea son to think that our Constitution makers when they made a similar provision in our Constitution desired that our Legislatures should make laws defining their own privileges and get rid of the privileges of the House of Commons conferred on them by the second part of article 1943
1 think it right also to state that even if the rights conferred by the second part of article 1943 were transitory that would not justify a reading the result of which would be to delete a part of it from the Constitution
It is necessary to notice at this stage that in Ganupati Keshav Ram Reddy vs Nafisul Hassan1 his Court held the arrest of 1 AIR 1954 SC636 530 a citizen under the Speaker s order for breach of privilege of the Uttar Pradesh Assembly without producing him before a magistrate as required by article 22 2 of the Constitution was a violation of the fundamental right mentioned there
Reddy s case1 states no reason in support of the view taken
Subba Rao J though he noticed this nonetheless felt bound by it
The majority did not do so observing that the decision there proceeded on a concession by counsel
In this Court learned Advocate for the High Court said that there was no concession in the earlier case
I notice that Das CJ who delivered the judgment of the majority in Sharma s case1 was a member of the Bench which decided Reddy s case1
If the decision in Reddy s case  was not by concession at least in the sense that the learned advocate was unable to advance any argument to support the contention that privilege superseded fundamental right it would be strange that the point was not discussed in the judgment
However all this may be in view of the fact that it does not seem from the judgment to have been contended in Reddy s case1 that the second part of article 1943 created privileges which took precedence over the fundamental rights as the judgment does not state any reason in support of the view taken for myself I have no difficulty in not following Reddy s case1 especially as the majority in Sharma s case1 did not follow it
It was also said that the privileges were only intended to make the Legislatures function smoothly and without obstruction
The main function of the Legislatures it was pointed out was the making of laws and the object of the privileges was to assist in the due discharge of that function
It was contended that if the laws made by a Legislature for the making of which it primarily exists are subject to fundamental rights it is curious that something which is ancillary to that primary function should be free of them
I find nothing strange
in this
Laws made by a Legislature are subject to fundamental rights because the Constitution says so
The privileges are not subject because they are conferred by the Constitution itself and have neither been made so subject nor found on a proper interpretation to be such
I believe I have now discussed all the reasons advanced in support of the view that the majority decision in Sharma s case 2 was erroneous
As I have said I am not persuaded that these reasons are sound
C 636
2 1959 Supp 1 SCR 806
531 In R K Karanjia vs The Hon ble Mr M Anantasayanam lyyangar Speaker Lok Sabha WP No 221 of 1961 unreport ed which was a petition under article 32 of the Constitution a Bench of seven Judges of this Court was asked to reconsider the Correctness of the majority decision in Sharma s case1 but it considered that decision to be correct and refused to admit the petition
This is another reason for holding that Sharma s case 1 was correctly decided
I now come to the other contention concerning Sharma s case1
It was said that all that the majority judgment held in that case was that the privilege of prohibiting publication of its proceedings conferred on a Legislature by the second part of cl
3 of article 194 was not subject to the fundamental right of freedom of speech guaranteed by article 19 1 a It was pointed out that that case did not say that all the privileges under the second part of article 1943 would take precedence over all fundamental rights
It was stressed that Das CJ dealt with the argument advanced in that case that article 21 would be violated by the exercise of the privilege of the House to commit for contempt by stating that there would be no violation of article 21 as the arrest would be according to procedure established by law because the arrest and detention would be according to rules of procedure framed by the House under article 208
It was contended that the majority therefore held that the fundamental right guaranteed by article 21 would take pre cedence over the privilege to commit
This contention is also not acceptable tome
No doubt Sharma s case  was concerned with the conflict between article 19 1 a and the privilege of the House under the second part of article 1943 to prohibit publication of its proceedings and therefore it was unnecessary to refer to the other fundamental rights
The reason however which led the majority to hold that the conflict between the two had to be resolved by giving precedence to the privilege would be available in the case of a conflict between many other privileges and many other fundamental rights
Now that reason was that to resolve the conflict the rule of harmonious construction had to be applied and the result of that would be that fundamental rights which in their nature were general had to yield to the privileges which were special
The whole decision of the majority in that case was that when there was a conflict between a privilege created by the second part of article 1943 and a fundamental right that conflict should be resolved by harmonising the two
Tne decision would apply certainly to the conflict 1 1959 Supp 1 SCR 806 532 between the privilege of committal to prison for contempt by a general warrant without the validity of that warrant being reviewed by a court of law and the fundamental rights guaranteed by articles 21 22 and 32
The majority judgment would be authority for holding that the conflict should be solved by a harmonious construction
Indeed that was the view of the minority also
The difference was as to the actual construction
Das CJ no doubt said that there was no violation of article 21 in Sharma s case1 because the deprivation of liberty was according to procedure established by law
That was to my mind only an alternative reason for he could have dealt with that point on the same reason on which he said that the fundamental right under article 19 1 a must yield to the privilege of the House to prohibit publication of its proceedings namely by the application of the rule of harmonious construction
He could have said by the same logic that he used earlier that the fundamental right guaranteed by article 21 was general and the privilege to detain by a general warrant was a special provision and must therefore prevail
I am unable to hold that by dealing with the argument based on article 21 in the manner he did Das CJ held that the fundamental right under article 21 took precedence over the privilege of committal by a general warrant which the Legislature possessed under the second part of cl
3 of article 194
If he did so then there would be no reason why he should have held that fundamental right of freedom of speech should yield to the House s privilege to stop publication of its proceedings
Another reason for saying that Das CJ did not hold that article 21 took precedence over the privilege to commit by a general warrant is the fact that he held that Reddy s case1 was wrongly decided
That case had held that article 22 had precedence over the privilege of committal
If article 22 did not have precedence as Das CJ must have held since he did not accept the correctness of Reddy s case2 no more could he have held that article 21 would have precedence over the privilege to commit for contempt
Some reference was made to cls
1 and 2 of article 194 to show that Sharma s case 1 decided that article 19 1 a alone had to yield to the privilege conferred by the second part of cl
3 of article 194 but I do not think that the majority decision in Sharma s case1 was at all based on those clauses
These clauses it will be remembered dealt with freedom of speech in the House
Das CJ referred to them only because some arguments to which it is unnecessary now to refer had been advanced on the basis of these 1 1959 Supp 1 SCR 806
2 AIR 1954 SC 636
533 clauses for the purpose of showing that the privileges were subject to the fundamental right of freedom of speech
Both the minority and the majority judgments were unable to accept these arguments
Indeed the question in that case concerned the power to affect a citizen s freedom of speech outside the House and cls
1 and 2 only deal with freedom of speech of a member in the House itself and with such freedom that case had nothing to do
In this Court some discussion took place as to the meaning of the words subject to the provisions of thein cl
1 of article 194
These words can in my view only refer to the provisions of the Constitution laying down the procedureto be observed in the House for otherwise cls
1 and 2 will conflict with each other
I will now make a digression and state that learned advocate for the Assembly pointed out that in article 194 the Constitution makers treated the liberty of speech of a member differently by expressly providing for it in cls
1 and 2 and by providing for other privileges that is privileges other than that of the freedom of speech in the House in cl
He said that the reason was that if the freedom of speech in the House was conferred by cl
3 it would be controlled by law made by the legislature and then the party in power might conceivably destroy that freedom
The intention was that the freedom of speech in the House should be guaranteed by the Constitution itself so as to be beyond the reach of any impairment by any law made by the legislature
I think that is the only reason why that freedom was treated separately in the Constitution in cls
1 and 2 of article 194
Therefore those clauses have nothing to do with the case in hand
Nor had they anything to do with the decision in Sharma s case Me result is that in my judgment Sharma s case covers the present case and cannot be distinguished from it
For the reasons earlier stated I come to the conclusion that when there is a conflict between a privilege conferred on a House by the second part of article 1943 and a fundamental right that conflict has to be resolved by harmonising the two provisions
It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is a fundamental right or for any other reason
In the present case the conflict is between the privilege of the House to commit a person for contempt with out that committal being liable to be examined by a court of law and the personal liberty of a citizen guaranteed by article 21 and the right to move the courts in enforcement of that right under article 32 or article 226
If the right to move the courts in enforcement of the fundamental right is given precedence the privilege which provide 534 that if a House commits a person by a general warrant that committal would not be reviewed by courts of law will lose all its effect and it would be as if that privilege had not been granted to a House by the second part of article 1943
This in my view cannot be
That being so it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal
It is not my intention to state that there may not be exceptions to the rule but I do not propose to enter into discussion of these exceptions if any in the present case
The existence of those exceptions may be supported by the observations of Lord Ellenborough CJ in Burdett vs Abbot1
May at p 159 puts the matter thus Lord Ellenborough CJ left open the possibility that cases might arise in which the courts would have to decide on the validity of a committal for contempt where the facts displayed in the return could by no reasonable interpreta tion be considered as a contempt
I think I have now sufficiently discussed the law on the subject and may proceed to answer the questions stated in the order of reference
Question No 1
Whether on the facts and cir cumstances of the case it was competent for the Lucknow Bench of the High Court of Uttar Pradesh
consisting of the Hon ble Shri Justice N U Beg and the Hon ble Shri Justice G D Sahgal to entertain and deal with the petition of Shri Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Shri Keshav Singh on bail pending the disposal of his said petit ion
This question should in my opinion be answered in the affirmative
The Lucknow Bench was certainly competent to deal with habeas corpus petitions generally
The only point raised by the Assembly is that it has no jurisdiction to deal with such petitions when the detention complained of is under a general warrant issued by the Speaker
But the Lucknow Bench had to find out whether the detention of Keshav Singh was by such a warrant before it could throw out the petition on the ground of want of jurisdiction
The petition did not show that the detention was under a general warrant
That would have appeared when the Speaker of the Assembly and the jailor who were respondents to the petition made 1 1811 14 East I 152  535 their return
That stage had not come when the Lucknow Bench dealt with the petition and made orders on it
Till the Lucknow Bench was apprised of the fact that the detention complained of was under a general warrant it had full competence to deal with the petition and make orders on it
It was said that the order for bail was illegal because in law release on bail is not permitted when imprisonment is for contempt
I do not think this is a fit occasion for deciding that question of law for even if the order for bail was not justifiable in law that would not otherwise affect the competence of the Bench to make the order
I do not suppose this reference was intended to seek an answer on the question whether in a habeas corpus petition where the imprisonment is for contempt the law permits a release on bail
Question No 2
Whether on the facts and cir cumstances of the case Shri Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid Shri B Solomon Advocate by presenting the said petition and the said two Hon ble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh
The first thing I observe is that the question whether there is a contempt of the Assembly is for the Assembly to determine
If that determination does not state the facts courts of law cannot review the legality of it
Having made that observation I proceed to deal with the question
The question should be answered in the negative
I suppose for an act to amount to contempt it has not only to be illegal but also wilfully illegal
Now in the present case it does not appear that any of the persons mentioned had any knowledge that the imprisonment was under a general warrant
That being so I have no material to say that the presentation of the petition was an illegal act much less a wilfully illegal act
No contempt was therefore committed by the Hon ble Judges or B Solomon or Keshav Singh for the respective parts taken by them in connection with the petition
Question No 3
Whether on the facts and cir cumstances 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
CI65 9 536 Advocate before it in custody or to call for their explanation for its contempt It will be remembered that according to the recitals the resolution of March 21 1964 which directed the production of the Hon ble Judges in custody stated that they had committed contempt of the House by what they respectively did in connection with Keshav Singh s petition of March 19 1964 and that the Assembly disputes that the resolution so provided
We have however to answer the question on the facts as stated in the order of reference and have no concern with what may be the correct facts
For one thing it would not be competent for the Assembly to find the Hon ble Judges and B Solomon to be guilty of contempt without giving them a hearing
Secondly in the present case I have already shown that they were not so guilty
That being so it was not competent for the Assembly to direct their production in custody
It has to be noticed that in the present case the Assembly had directed the production of the Hon ble Judges not for the purpose of hearing them on the question of contempt but on the basis that they had committed a contempt
It is unnecessary therefore to discuss the question of the privilege of the House to cause persons to be brought in custody to the Bar to answer charges of contempt
See May p 94
Furthermore the Assembly had modified its resolution to have the Judges Solomon and Keshav Singh brought under custody and asked only for explanation from the Hon ble Judges and B Solomon for their conduct
Therefore strictly speaking the question as to bringing them in custody before the House does not arise on the facts of the case
As to the competence of the Assembly to ask for explanation from the two Judges and B Solomon I think it had
That is one of the privileges of the House
As it has power to commit for contempt it must have power to ascertain facts concerning contempt
Question No 4
Whether on the facts and cir cumstances of the case it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon ble Judges and Shri B Solomon Advocate and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other Respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly I would answer the question in the affirmative
The Full Bench had before it petitions by the two Judges and B Solomon 537 complaining of the resolution of the Assembly finding them guilty of contempt
I have earlier stated that on the facts of this case they cannot be said to have been so guilty
It would follow that the Full Bench had the power to pass the interim orders that it did
Question No 5
Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers privileges and immunities
This is too general a question and is not capable of a single answer the answers would vary as the circumstances vary and it is not possible to imagine all the sets of circumstances
Nor do I think we are called upon to do so
As learned advocates for the parties said this question hag to be answered on the facts of this case
On those facts the question has to be answered in the negative
I propose now to refer to an aspect of the case on which a great deal of arguments had been addressed at the bar
That concerns the liability of a Judge for contempt
If I am right in what I have said earlier a judge has no jurisdiction to interfere with a commitment by a House under a general warrant
If he makes an order which interferes with such a commitment his action would be without jurisdiction
It would then be a nullity
Any officer executing that order would be interfering with the committal by the House and such interference would be illegal because the order is without jurisdiction and hence a nullity
If the House proceeded against him in contempt a Court of Law could not in any event have given him any relief based on that order
It may be that the Judge by making such an order would be committing contempt of the House for by it he would be interfering with the order of the House illegally and wholly without jurisdiction
The question however to which I wish now to refer is whether the judge assuming that he has committed contempt can be made liable for it by the House
In other words the question is  has the Judge immunity against action by the House for contempt committed by him  If his order was legal then of course he would not have committed contempt and question of immunity for him would not arise
538 It was said on behalf of the High Court that even assuming that a Judge can commit contempt of a House he has fully immunity
This was put first on the scheme of the Constitution which it was said favoured complete judicial independence
It was next pointed out that under our Constitution Judges cannot be removed from office except by the process of impeachment under article 1244 that is by the order of the President upon an address by each House of Parliament supported by a certain majority
Reliance was then placed on article 211 of the Constitution which prohibits discussion in the Legislature of the conduct of a Judge in the discharge of his duties and it was said that this indicated that a Judge cannot be liable for contempt because to make him so liable his conduct has to be discussed
It was however conceded that article 211 did not give an enforceable right in view of article 1942 but it was said to indicate the intention of the Constitution makers that a Judge is to be immune from liability for contempt of the Assembly
The correctness of these contentions was challenged on behalf of the Assembly
With regard to the point of judicial independence it was said that it would hardly have been intended that a Judge should have immunity even though he deliberately committed contempt of a House
It was pointed out that the contempt would be deliberate because the Judge would know that in the case of a general warrant he had no jurisdiction to proceed further
As regards the argument based on the irremovability of Judges except in the manner provided it was said that that had nothing to do with immunity for contempt
It was pointed out that the Constitution provided for State autonomy and it could not have been intended that when a Judge committed contempt of a State Legislature the only remedy of that body would be to approach the Central Parliament with a request to take steps for the removal of the Judge
That would also seriously impair the dignity of the State Legislature
The grant of relief in such a case would depend on the sweet will of the Central Parliament and relief would be unlikely to be obtained particularly when the parties in power in the State and
the Centre were as might happen different
The irremovability of the Judges was not it was said intended to protect their deliberate wrongful act but only to secure their independence against illegal interference from powerful influences
It was argued that the immunity of a Judge would also put the officers of the court who would be bound to 539 execute all his orders in a helpless and precarious condition for they have to carry out even illegal orders of the Judges and thereby expose themselves to the risk of punishment legitimately imposed by an Assembly
It was lastly said that if independence of the Judges was necessary for the good of the country so was the independence of the Legislatures
In regard to article 211 it was observed that it did not at all indicate an intention that the Judges would not be liable for contempt committed by themselves
Its main object it was contended was to permit the freedom of speech guaranteed by article 1941 to be restrained in a certain manner
Furthermore it was pointed out that article 211 would not bar a discussion unless it was first decided that that discussion related to the conduct of a Judge in the discharge of his duties a decision which would often be difficult to make and in any case the decision of the House would not be open to question in a court of law for it is one of the privileges of the House of Commons which a State Legislature has obtained under article 1943 that it has absolute control of its internal proceedings see Bradlaugh vs Gosset
On all these grounds it was contended that our Constitution did not confer any immunity on a Judge for an admitted contempt committed by him
It was pointed out that in England judicial officers including Judges of superior courts did not have that immunity and reference was made to Jay vs Topham1 and case of Brass Crossby2
I am not sure that I have set out all the arguments on this question but what I have said will give a fair idea of the competing contentions
For the purpose of this case I do not think it necessary to go into the merits of those contentions
The questions that arise on the facts of the reference can in my view be answered without pronouncing on the question of immunity of Judges
It is often much better that theoretical disputes should be allowed to lie buried in learned tracts and not be permitted to soil our daily lives
It would not require much strain to avoid in practice circumstances which give rise to those disputes
In England they have done so and there is no reason why in our country also that would not happen
I strongly feel that it would serve the interest of our country much better not to answer this question especially as it has really not arisen
I do hope that it will never arise
1 12 Howell s State Trials 82 1
2 19 Howell s State Trials 1138
540 I think it right to mention that Mr Verma appearing for the Advocate General of Bihar raised a point that this reference was incompetent or at least should not be answered
He said that a reference can be made by the President only when he needed the advice of this Court with regard to difficulties that he might feel in the discharge of his duties
Mr Verma s contention was that the questions in the reference related to matters which did not concern the President at all
He said that the advice given by us on this reference will not solve any difficulty with which the President may be faced
On the other side it was contended that the President might consider the amendment of the Constitution in the light of the answers that he might receive from this Court
Mr Verma replied to this answer to his argument by saying that it was not for the President to consider amendments of the Constitution and that it was not the object of article 143 that this Court should be consulted for the purpose of initiating legislation
I am unable to say that Mr Verma s contention is wholly unfounded but I do not propose to express an opinion on that question in the present case
Before I conclude I must say that I feel extremely unhappy that the circumstances should have taken the turn that they did and that the reference to this Court by the President should have been rendered necessary
With a little more tact restraint and consideration for others
the situation that has arisen could have been avoided
I feel no doubt that Beg and Sahgal JJ would have dismissed the petition of March 19 1964 after they had possession of the full facts
I regret that instead of showing that restraint which the occasion called for particularly as the order of imprisonment challenged was expressly stated to have been passed by a body of the stature of the Assembly for contempt shown to it a precipitate action was taken
No doubt there was not much time for waiting but Keshav Singh could not force the hands of the Court by coming at the last moment
The result of the order of the Hon ble Judges was no interfere with a perfectly legitimate action of the Assembly in a case where interference was not justifiable and was certainly avoidable
On the other hand the Assembly could have also avoided the crisis by practising restraint and not starting proceedings against the Judges at once
It might have kept in mind that the Judges had difficult duties to perform that often they had to act on imperfect materials and errors were therefore possible
It could have realised that when it placed the facts before the Judges its point of view would have been appreciated and appropriate orders 541 made to undo what had been done in the absence of full mate rials
Such an action of the Assembly would have enhanced its stature and prestige and helped a harmonious working of the different organs of the State
I wish to add that I am not one of those who feel that a Legislative Assembly cannot be trusted with an absolute power of committing for contempt
The Legislatures have by the Constitution been expressly entrusted with much more important things
During the fourteen years that the Constitution has been in operation the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power
I would point out that though article 211 is not enforceable the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges
We must not lose faith in our people we must not think that the Legislatures would misuse the powers given to them by the Constitution or that safety lay only in judicial correction
Such correction may produce friction and cause more harm than good
In a modem State it is often necessary for the good of the country that parallel powers should exist in different authorities
It is not inevitable that such powers will clash
It would be defeatism to take the view that in our country men would not be available to work these powers smoothly and in the best interests of the people and without producing friction
I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the State amicably wisely courageously and in the spirit in which the makers of the Constitution expected them to act


Summary:
The Legislative Assembly of the State of Uttar Pradesh committed one Keshav Singhwho was not one of its members to prison for its contempt
The warrant of committal did not contain the facts constituting the alleged contempt
While undergoing imprisonment for the committal Keshav Singh through his Advocate moved a petition under article 226 of the Constitution and section 491 of the Code of Criminal Pro cedure challenging his committal as being in breach of big fundamental rights he also prayed for interim bail
The High Court Lucknow Bench gave notice to the Government Counsel who accepted it on behalf of all the respondents including the Legislative Assembly
At the time fixed for the hearing of the bail application the Government Counsel did not appear
Beg and Saghal JJ
who heard the application ordered that Keshav Singh be released on bail pending the decision of his petition under article 226
The Legislative Assembly found that Keshav Singh and his Advocate in moving the High Court and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the Assembly and passed a resolution that all of them be produced before it in custody
The Judges and the Advocate thereupon filed writ petitions before the High Court at Allahabad and a Full Bench of the High Court admitted their petitions and ordered the stay of the execution of the Assembly s resolution against them
The Assembly then passed a clarificatory resolution which modified its earlier stand
Instead of being produced in custody the Judges and the Advocate were asked to appear before the House and offer their explanation
At this stage the President of India made a Reference under article 1431 of the Constitution in which the whole dispute as to the constitutional relationship between the High Court and the State Legislative including the question whether on the facts of the case Keshav Singh 414 his Advocate and the two Judges by their respective acts were guilt of contempt of the State Legislature was referred
 to the Supreme Court for its opinion and report
At the hearing of the Reference a preliminary objection as to the competency of the Reference was raised on behalf of the Advocate General of Bihar on the ground that it did not relate to any of the matters covered by the President s powers and duties under the Constitution
It was also urged that even if the Reference was competent the Court
should not answer it as it not obliged to do so and the answers given byit would not help the President in solving any of the difficulties with which  he might be faced in discharging his duties
The Court did not  accept these contentions and proceeded to hear the parties which fellbroadlyinto two groups those supporting the Assembly and those supporting the High Court
On behalf oftheAssembly it was urged that by 1943 of the Constitution all the power and immunities of the House of Commons of the United Kingdom on
was I the sole judge of its privileges and the Courts had no jurisdiction to interfere with their exercise
In the alternative  it was contended that Courts in England never interfered virtue of article privileges with a committal by the House of Commons for contempt when the committal was by a general warrant Ie a warrant which did not state the facts constituting the contempt and therefore Courts in India were also precluded from examining the legality of the general warrants of the State Legislatures
The proceedings in the High Court in the present case were therefore in contempt of the legislature
Those supporting the stand taken by the High Court urged that the Legislature received the powers of the House of Commons subject to provisions of the Constitution and to the fundamental rights that the power to commit by general warrant was not one of the privileges of the House of Commons that by virtue of Articles 226 and 32 the citizen had the right to move the Courts when his fundamental rights were contravened and that because of the provisions in article 211 the Legislature was precluded from taking any action against the Judges
HELD  Per P B Gajendragadkar C J K Subba Rao K N Wanchoo  M Hidayatullah J Shah and N jjThe terms of article 1431 are very wide and all that they require is that the President should be satisfied that the questions to be referred are  of such a nature and of such public imp that it would be expedient to obtain the Supreme Court opinion on them
The President s order making the present Reference showed that he was so satisfied and therefore the Reference was competent
The argument that a Reference under article 1431 could only be on matters directly related to the President s powers and duties under the Constitution was misconceived 431 E F 432 E F
Earlier References made by the President under article 1431 showed no uniform pattern and that was consistent with the broad and wide words used in article 1431
433 C D
In re  The    In re The Kerala Education Bill 1957 1959 SCR 995 In re Berubari Union  Exchange of Enclaves and In re Sea Customs Act 1964 3SCR 787 referred to
It is not obligatory on the Supreme Court to answer a Reference under article 1431 the word used in that Article being may in contrast to the word shall  used in article 1432
Refusal to make a report 415 answering the questions referred would however be justified only for sufficient and satisfactory reasons eg the questions referred being of a purely socio economic or political character with no constitutional significance at all
The present Reference raised questions of grave constitutional importance and the answers given by the Court could help the President to advise the Union and State Governments to take suitable legislative or executive action 1 It was therefore the duty of the court to answer it
434 B D 433 G H
The advisory opinion rendered by the Court in the present Reference proceedings was not adjudication properly so called and would bind no parties as such
446 H 447 A
ii The State Legislatures in India
could not by virtue of article 1943 claim to be the sole of their powers and privileges to the exclusion of the courts
Their powers and privileges were to be found in article 1943 alone and nowhere else and the power to interpret that Article lay under the scheme of the Indian Constitution exclusively with the Judiciary of this country
Scheme of the Constitution dis cussed
444 G H 446 G H It was not the intention of the Constitution to perpetuate in India the dualism  that rudely disturbed public life in England during the 16th 17th and 18th centuries
The Constitution makers were aware of the several unhappy situations that arose there as a result of the conflict between the Judicature and the Houses of Parliament and the provisions of articles 226 32 208 2121 and 211 examined by the Court showed that the intention was  to avoid such a conflict in this country
454 A B 455 C E
Article 211 which provides that the Legislatures could not discuss the conduct of the Judge in the discharge of his duties was mandatory
457 G H
State of U P vs Manbodhan Lal Srivastava 1958 SCR 533 and Montreal Street Railway Company vs Nornwndin L R   referred to
iii Although article 1943 has not been made expressly subject to the provisions of the Constitution it would be unreasonable in construing it to ignore the other provisions if for valid reasons they were found to be relevant and applicable
Therefore wherever it appeared that there was a conflict between the provisions of article 1943 and the provisions relating to fundamental rights an attempt had to be made to resolve the said conflict by the adoption of the rule of harmonious construction as was done in Sharma Is case
443 C E
Pandit M section M Sharma vs Shri Sri Krishna Sinha  Others 1959 Supp 1 SCR 806
iv In Sharma s case a majority of this Court held in terms that article 21 was applicable to the contents of article 1943 though article 191 was not
The minority view was that article 1943 was subject to all the fundamental rights
451 B C
The majority in Sharma s case cannot be said to have held that article 1943 was independent of all the fundamental rights for the simple reason that it was held that article 21 was applicable although on the facts of the case its provisions were found not to have been contravened
The petitioner in that case had not raised at all the general issue as to the applicability and relevance to article 1943 of all the fundamental rights in Part 111 and therefore it was unnecessary for the Court to discuss and decide that general issue
His claim was based on the applic 416 ability of two Articles only ie Articles 21 and 191 a
The Court A held that the former was applicable and the latter was not
This must therefore be taken to have been settled in Sharma s case
451 C F
But Sharma s case cannot be said to have settled the issue whether article 222 was applicable to article 1943 or not
Observations of the majority therein as to the correctness of the decision in Freddy s case which was decided on the basis that Art
222 was applicable held to be obiter
452 D E
Pandit M section M Sharma vs Shri Sri Krishna Sinha  Others 1959 Supp 1 SCR 806 and Gunupati Keshavram Reddy vs Nafisul Hasaan and the State of UP AIR 1954 SC 636 discussed
v The view taken in Sharma s case that the laws defining the powers and privileges of the legislatures under the first part of article 1943 would be subject to article 13 and therefore to the fundamental rights did not require reconsideration
453 G
Anantha Krishnan vs State of Madras AIR 1952 Mad 395 considered
vi The first part of article 1943 empowers the State Legislatures to define by law their own powers privileges and immunities
The second part of the Article says that till they define their powers etc
in the above manner their powers privileges and immunities will be those of the British House of Commons
The second part was obviously in tended to confer for the interim period till laws were made under the first part those incidental privileges and immunities which every Legislature must possess in order that it may be able to function effectively
442 C E
The powers of the House of Commons conferred by this clause are those which were still in existence at the commencement of the Constitution ie 26th January 1950 and not those which had fallen into desuetude or the claim in respect of which had been given up
Further only those powers can be deemed to have been conferred which were not only claimed by the House of Commons but also recognised by the British Courts
442 F H
vii The claim that all the powers of the British House of Commons became vested in the Indian Legislatures by virtue of article 1943 cannot be accepted in its entirety for there are many powers of the House of Commons such as right of access to the sovereign passing acts of attainder impeachment determining its own Constitution etcwhich cannot be possibly exercised by the Indian Legislatures
448 D G
May s Parliamentary Practice 16th Edn
p 86 referred to
viii article 1943 did not confer on the Indian State Legislatures the right to commit for contempt by a general warrant which could not be examined for its validity by courts in habeas corpus proceedings
The right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings was based on the con sideration that the House of Commons was in the position of a superior court of record and had the right like other superior courts of record to issue a general warrant for the commitment of persons found guilty of contempt
There was a convention in England whereby the general warrants committing for contempt issued by a superior court of record were not examined by other courts
It was on that ground and not on the F ground of privilege that the general warrants issued by the House of Commons were treated as beyond scrutiny by the courts
482 B D 496 F
417 May s Parliamentary Practice 16th Edn
relied on
Ashby vs White LJ 1701 05 714 Earl of Shaftesbury s case  Bradlaugh vs Gossett LR XII QBD 271 12 State Tr122 Sir Francis Burdett Abbott 104 ER 501 Stockdale vs Hansard  Ashby vs White and Others   R vs Paty  others   Murray s case   Brass Crosby  Burdett vs Abbott 3 E 
R 1289 Sheriff of Middlesex  and Howard vs Gossett   discussed and relied on
Bradlaugh vs Gossett LR XII QBD 271 held not applicable
Speaker of the Legislative Assembly of Victoria vs Hugh Glass 1869 71 III LR PC 560 Fielding and Others vs Thomas  The Queen vs Richards  and Dill vs   not followed
Observations of Gwyer CJ in Central Provinces and Berar Act No XIV of 1938 to the effect that decisions in respect of other Constitutions could not be safely applied even when the Provisions interpreted are similar relied on
Observations of Parker J in re Hunt s case 1959 1 QBD 678 referred to as indicating that even in regard to a commitment for contempt by a superior court of record the court exercising its jurisdiction over a petition filed for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the warrant for commitment was general or unspeaking
The Indian State Legislatures were not at any time in their history either under the Constitution Act
1935 or under the Indian Independence Act 1947 intended to be courts of record
The legal fiction in article 1943 could not transfer the history of England to India and confer on the Indian State Legislatures the status of superior courts of record
Thus the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior court of record was absent in their case and so it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Common  by agreement was deemed to possess became vested in the Indian Legislatures
On this view of the matter the claim made by the Uttar Pradesh Assembly had to be rejected
492 A B
ix Even if the power to commit by non examinable general warrant were treated as forming an integral part of the privileges of the House of Commons it would not follow that the Indian State Legislatures could exercise that power by virtue of article 1943
495 H
The very existence of the powers of the Courts under article 226 and 32 necessarily implies a right in the citizen to approach the High Court or the Supreme Court for the protection of his fundamental rights
The present dispute was really between a citizen and the Legislature and not one between the High Court and the Legislature
494 A B
If a citizen moved this court and complained that his fundamental right under article 21 held to be applicable to article 1943 in Sharma s case or any other applicable right bad been contravened it would plainly be the duty of this Court to examine the merits of the said contention
It would be no answer in such a case to say that the warrant issued against the citizen was a general warrant and a general warrant must stop all further judicial enquiry and scrutiny
The impact of the 418 fundamental right conferred on Indian citizen by article 32 on the construction of the latter part of article 1943 was decisively against the view that a power or privilege could be claimed by the House though it may be inconsistent with article 21
In this connection it was relevant to recall that the rules for regulating the procedure of the House were subject to the provision of the Constitution under article 2081
493 D E
Observations of Simonds J in In re  Parliamentary Privileges Act 1770  and Resolution of the House of Lords CJ 1702 04 pp
555 560 Cited in May 16th Edn
p 47 referred to
It would be strange if the House which was incompetent because of article 21 1 to discuss the conduct of a Judge in the discharge of his duties should have the power to summon him in custody for alleged contempt committed in discharge of his duties
If the claim of the House were upheld it would mean that the House could issue a general warrant against a Judge and no judicialscrutinycould be held in respect of the validity of such a warrant
This would Put the basic concept of judicial independence into grave jeopardy
493 E H
It was also  doubtful whether the power to issue a general up spcaking warrant was consistent with section 5542b and section 555 of the Code of Criminal Procedure 496 E F
Section 30 of the  confers on all Advocates the statutory right to practice in all courts including the Supreme Court before any Tribunal or person legally authorised to take evidence and before any other authority or person before whom such Advocate is by or under anylaw for the time being in force entitled to practice
Section 14 of the Bar Councils Act recognises a similar right
Just as the rights of the Judicature to deal with matters before them under article 226 or article 32 cannot be subjected to the powers and privileges of the House under article 1943 so the rights of the citizen to move the Judicature and the right of the Advocates to assist that process must remain uncontrolled by article 1943
That is one integrated scheme for protecting the fundamental rights and for sustaining the rule of law in this country
Therefore the right to commit by a conclusive general warrant which the State Assembly claimed to be an integral part of its powers or privileges was inconsistent with the material provisions of the Constitution and could not be deemed to have been included under the latter part of article 1943
495 E H
The power to commit by general warrant was moreover not essential for the effective functioning of a House of Legislature
The American Congress had been functioning effectively without such power
497 B E
In India there are 14 State Legislatures in addition to the Houses of Parliament
If the power claimed by the UP Assembly were conceded it is not difficult to imagine that its exercise may lead to anomalous situations as when a member of one Legislature is committed for contempt by a general warrant issued by another Legislature on account of a speech made by him in his own Legislature
497 E F
x It was open to Keshav Singh in his petition under article 226 to implead the House on the ground that his commitment was based on
the order passed by the House and in that sense the House was responsible for and had control over his commitment
496 B C
The King vs The Earl of Crewe Ex parte Sekgome
1910 2 KBD 576 and The King vs Secretary of State for Home Affairs Ex parte O brien 1923 2 KBD 361 referred to
419 xi Although in England parties who stand committed for contempt by the house of Commons are not admitted to bail by courts the position in India is different
If article 226 confers jurisdiction on the court to deal with the validity of the order of commitment even though the commitment has been ordered by the House it follows that the court has jurisdiction to make an interim order in such proceedings
498 F H State of Orissa vs Madan Gopal Rungla and others 1952 SCR 28 and Maxwell on Interpretation of Statutes 11th Edn
p 350 relied on
Lala Jairam Dav  others and King Emperor 72 IA 120 held inapplicable
xii On the facts of the case the High Court was competent to entertain the petition of Keshav Singh and to grant him bail pending disposal of his petition
There was no contempt of the UP Assembly committed by Keshav Singh or his Advocate in moving the application under article 226 or by the High Court in entertaining the said petition and granting bail
It was not competent for the Legislative Assembly to direct the production of the two Hon ble Judges and the Advocate before it in custody or to call for their explanation for their conduct
It was competent for the Full Bench of the Allahabad High Court to entertain and deal with the petitions of the said two Hon ble Judges and the Advocate and to pass interim orders restraining the Speaker of the UP Assembly and other respondents to the said petitions from implementing the aforesaid direction of the Assembly
A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner who is not a member of the Legislature or issuing any process against the petitioner for its contempt the alleged contempt having been committed outside the four walls of the House or for the infringement of its privileges and immunities or who passes any order on such petition does not commit any contempt of the said Legislature and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers privileges and immunities
502 A 503 C
xiii It is necessary to remember that the status dignity and importance of the two institutions the Legislature and the Judicature are derived primarily from the status dignity and importance of the respective causes that are assigned to their charge by the Constitution
These two bodies as well as the executive which is another important constituent of a democratic State must function not in antinomy nor in a spirit of hostility but rationally harmoniously and in a spirit of understanding within their respective spheres for such harmonious working of the three constituents of the democratic State alone will help the peaceful development growth and stabilization of the democratic way of life in this Country
447 D E
xiv The power to punish for contempt large as it is must always be exercised cautiously wisely and with circumspection
Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the court but may sometimes affect it adversely
Wise Judges never forget that the best way to sustain the dignity and stat of their office is to deserve respect from the public at large by them quality of their judgments the fearlessness fairness and objectivity of their approach and by the restraint dignity and decorum which they observe in their judicial conduct
We venture to think that what is true of the Judicature is equally true of the Legislature
501 F G 420 Observations of Lord Atkin in Andre Paul vs Attorney General of Trinidad AIR1936 PC 141 referred to
Per Sarkar J i It is undoubtedly for the Courts to interpret the Constitution and therefore article 1943
It follows that when a question arises in this Country as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution that question must be settled and settled only by the courts of law
There is no scope of the dreaded dualism  appearing here that is courts entering into a controversy with a House of a Legislature as to what its privileges are
509 A B
ii The words appearing in article 1943 are the powers privileges and immunities of a House shall be those of the House of Commons
 One cannot imagine more plain language than this
That language can only have one meaning and that is that it was intended to confer on the State legislatures the powers privileges and immunities which the House of Commons in England had
There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of division of powers
511 A B
Bradlaugh vs Gossett 1884 12 QBD271 Burdett vs Abbott   In re  Delhi Laws 1951 SCR 747
MSM Sharma vs Shri Sri Krishna Sinha
1959 Supp 1 SCR 806 Speaker of the Legislative Assembly of Victoria vs Glass Queen vs Richards   Queen vs Richards  and Fielding vs Thomas 1896 AC 660 referred to
iii The power to commit by a general warrant with the consequent deprivation of the jurisdiction of the courts was one of the privileges of the House of Commons
That privilege was possessed by the UP Assembly by virtue of article 1943 of the Constitution
524 C D
There is no authority to show that the House of Commons possessed the powers to commit by a general warrant because it was a superior court of record
Neither the history of the House nor the judgments in English cases support that contention
The courts only treated the House as entitled to the same respect as a superior court
They did not say that the House was a superior court
513 B C 522 B
May s Parliamentary Practice 16th Edn Potter s Outlines of Legal History 1958 Edn Anson s Law of the Constitution
6th Edn
Vol 1 referred to
Bradlaugh vs Gossett Burdett vs Abbott 5 Dow 165 Sheriff of Middlesex  Stockdale vs Hansard 1839 9 AD  El and Howard vs Gossett relied on
It is fallacious to say that the right to commit by general warrant possessed by the House of Commons springs from some rule of comity of courts or of presumptive evidence or from an agreement between courts of law and the House or lastly from some concessions made by the former to the latter
522 E F
All privileges of the House of Commons are based on law
That law is known as Lex Parliamenti
That law like any other law is a law of the land which courts are entitled to administer
522 F G
It is not for us to start new ideas about privileges of the House of Commons ideas which had not ever been imagined in England
Researches into the period when these privileges were taking shape can afford no answer to their contents and nature in 1950
523 G H 524 B C
421 Writers of undoubted authority as well as certain recent decisions of the Judicial Committee have treated the power to commit by a conclusive general warrant as a matter of privilege of the House and not as a right possessed by it as a superior court
515 G H
May s Parliamentary Practice 16th Edn
Cases on Constitutional Law by Keir and Lawson Halsbury s Law s of England Vol 28 467 Dicey s Constitutional Law 10th Edn referred to
Speaker of the Legislative Assembly of Victoria vs Glass Fielding vs Thomas and Sheriff of Middlesex relied on
iv The decisions of the Judicial Committee may not be binding on Indian courts but they have high persuasive value unless shown to be wrong
The question is whether the House of Commons had a certain privilege
If judicial notice of the privilege has to be taken then under section 57 of the Evidence Act a reference to the authorised law reports of England would be legitimate and if the existence of the privilege has to be decided as a matter of foreign law then again under section 38 of that Act a reference to these reports would be justified
And since they contain decisions of one of the highest courts in England we are not entitled to say that what they call a privilege of the House of Commons of their country is not a privilege unless some equally high authority taking the contrary view is forthcoming
517 D F
v It cannot be said that the privilege in question can be exercised by the Indian State Legislatures only subject to the fundamental rights of a citizen guaranteed by the Constitution
In Sharma s case this court laid down that the privileges of the House of Commons which were conferred on the House of a State Legislature by article 1943 take precedence over fundamental rights
This decision was correct and did not require reconsideration
524 E F 525 B C F
In re  Delhi Laws Act 1950   referred to
It was not held in Sharma s case that article 21 takes precedence over the privileges in article 1943
Das CJ no doubt said that there was no violation of article 21 in that case because the deprivation of liberty was according to procedure established by law
But that was only an alter native reason for he could have held as he did in the case of article 191a that article 21 being a general provision and article 1943 being special the former must yield to the latter
531 E F 532 B E
Another reason for saying that Das CJ did not hold that Art 21 took precedence over the privilege to commit by a general warrant is the fact that he held that Reddy s case was wrongly decided
That case had held that article 22 had precedence over the privilege of committal
If article 22 did not have precedence as Das CJ must have held since he did not accept the correctness of Reddy s case no more could he have held that article 21 would have precedence over the privilege to commit for contempt
532 E F
vi The majority in Sharma s case no doubt said without discussion that the law under article 1943 would be subject to all fundamental rights but that is so only because article 13 says so
528 C D
Article 13 makes a law bad if it conflicts with fundamental rights
it cannot be said that since article 13 might make laws made under cl
3 of article 194 void the privileges conferred by the second part must also be void
Article 13 has no application to the provisions of the Constitution itself
It governs only the laws made by a State Legislature which article 1943 is not
The fact that in cl
1 of article 194 the words 422 subject to the provisions of the Constitution  occur while they are omitted from cl
3 is a strong indication that the latter clause was not intended to be so subject
528 E H
vii When there is a conflict between a privilege conferred on a House by the second part of article 1943 and a fundamental right that conflict has to be resolved as in Sharma s case by harmonising the two provisions
Harmonious construction means that both the provisions should be given maximum effect without one of them wiping out the other
In the instant case the conflict was between the privilege of the House to commit a person for contempt without that committal being liable to be examined by a court of law and the personal liberty of a citizen guaranteed by article 21 and the right to move the courts in enforcement of that right under article 32 or article 226
If the right to move the courts in enforcement of the fundamental right is given precedence the privilege which provides that if a House commits a person by a general warrant that committal would not be reviewed by courts of law will lose all its effect and it would be as if the privilege had not been granted to a House by the second part of article 1943
This was not harmonious construction
That being so it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal
533 G H 534 A C
Observation of Lord Ellenborough C J in Burdett vs Abbott referred to for possible exceptions to the rule
534 C D
viii The Lucknow Bench was not apprised of the fact that the detention of Keshav Singh was under a general warrant and till so apprised it had full competence to deal with the petition under article 226
It was not necessary in the present reference to decide the question whether in a habeas corpus petition where the commitment is for contempt the law permits release on bail because the Reference was not meant to seek an answer to that question
No contempt was committed by the Hon ble Judges or B Solomon or Keshav Singh for the respective parts taken by them in connection with the petition as it did not appear that any of those persons knew that the commitment was under a general warrant
Since they were not guilty it was not competent for the Assembly to order their production in custody
Strictly speaking the question as to bringing them in custody before the House did not arise on the facts of the case as the Assembly had modified its resolution in that regard
The Assembly was competent to ask for explanation from the two Judges and B Solomon
As it had power to cormorant for contempt it necessarily had power to ascertain facts concerning the contempt
The Full Bench was competent to entertain the petition of the two Judges and B Solomon Advocate if on the facts of the case they could not be said to be guilty
It would follow that the Full Bench had the power to pass the interim orders it did
On the facts of the case a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes I any order on such a petition does not commit contempt of the said Legislature and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers privileges and immunities
534 D 537 D
ix During the fourteen years that the Constitution has been in operation the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power
Though article 211 is 423 not enforceable the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges
We must not lose faith in our people must not think that the Legislatures Would misuse the powers given to them by the Constitution or that safety lay in judicial correction
Such correction may do more harm than good
In a modern State it is often necessary for the good of the country that parallel powers shoul exist in different authorities
It is not inevitable that such powers will clash
541 C E